Why Lawyers Lie (To Themselves and Their Clients)

Ethics and practicing law have a fascinating relationship. I posted last week about how it’s silly to suggest that ethics requires lawyers (or anyone) to always tell the truth. In the comments, I wrote the following in a reply to a comment by Scott Greenfield:

I think the lawyer’s biggest moral (as opposed to “ethical” re the rules) conundrum is the question of whether the lawyer is lying to himself that what’s good for the lawyer is good for the client. Self-deception is the real problem, because it makes our lies to others feel like the truth.

Scott suggested that was an idea for a post. I agreed, so here goes.

Lawyering, despite the efforts of those who write the ethics rules, has a conflict of interest built in: what’s good for the client is often the exact opposite of what’s good for the lawyer. And lawyers, being mere mortals, are morally fallible, and they know it.

They have to get past that knowledge if they are going to at least sometimes choose to do what’s best for themselves instead of what’s best for the client. To cope with making that choice, they lie to themselves in order to believe that what’s good for themselves is in fact what’s best for the client.

Straight cash, homie

Getting paid is the most obvious example. Despite the ethics rules, and regardless of fee structure, most lawyers get paid to do stuff, and the more stuff they do, the more money they make. That leads to the temptation to lead the client to believe that more stuff is needed than really is needed.

Contingency fee cases don’t solve the problem, although lots of attorney advertising suggests that they do. A lawyer looking for a big score might go to trial when a settlement was a better idea. Or vice versa.

Lots of lawyers, driven by their own best interests, are enablers for their clients’ worst instincts. This is particularly true in family court. A lawyer is “doing what the client wants” while draining the client’s bank account, and if there are children, harming them too.

Meet ‘em, greet ‘em, plead ‘em

But it’s not just about money. Take the public defender trying to not get squashed like a grape under the crushing burden of an absurdly large case load. In order to survive, the PD must advise defendants to plead out cases that might very well lead to acquittal at trial. PDs call this “triage”—deciding, like the doctors in a war zone, which cases live and which ones die, and doing so in a very short amount of time.

CYA Syndrome

Or take the in-house attorney at a big company who is working on a deal. The attorney’s self-interest is better served by refusing to take on any more liability than absolutely necessary. If things go south, the lawyer might wind up in the unemployment line. But taking on more risk can often lead to greater profits for the company. The attorney’s interests don’t match up with those of the company. Conversely, where were the in-house lawyers at Enron in the years before its implosion? Laughing all the way to the bank, presumably.

Solution: Self-Deception

In order to deal with this cognitive dissonance, the lawyer begins, without really knowing it, to lie to himself. He resolves the conflict between his interests and his clients’ interests by creating rationalizations (excuses, really), by emphasizing certain facts over others, by overestimating the quality of the work done, and by many other tried-and-true methods.

Some lawyers do this very well. They are the ones that sleep well at night, get up early, get some exercise, then spend all day happily not helping their clients as much as they could, or should. Or even hurting their clients.

Other lawyers, not so skilled at self-deception, don’t sleep well, often abuse mood-altering substances, really hate their jobs, and sometimes take their own lives.

The truth will set you (somewhat) free

I’ve exaggerated a bit here for effect. But only a bit. And I am happy to admit that there lots of lawyers out there that help their clients a lot, and do so in a generally ethical way.

But I am convinced that when a lawyer accepts that this conflict exists, and sees at least the potential for self-deception, that lawyer has a far better chance to be as ethical, and as not-miserable, as the practice of law allows.

(photo: ugly truth phrase in vintage wood letterpress from Shutterstock)

  • Gary Singer

    There is no conflict of interest in getting paid for your services in helping people solve problems they create, or helping them from creating the problem in the first place. The very basic premise of the article is that is that getting paid by your client is against their interests. This is simply ridiculous, apparent guilt from someone who obviously feels that he is not worth what he is charging and that getting paid is somehow bad. No one seems to think that a restaurant is acting against people’s interests in selling them a meal. Can you imagine an article stating the most waiters cannot sleep at night because they try to suggest that diners also get dessert after their meal. By doing this, they are creating ____________ (insert made up psychological sounding big word here) and they are also causing people to be fat. Some waiters are able to sleep at night because they successfully lie to themselves that they are just helping people get some yummy cheesecake and cappuccino, and other go home and inject meth into their eyeballs…. I feel bad for his clients, because this guy is obviously guilty of churning his bills, and wants to reflect the same on other attorneys. (I am pretty sure that there is a fancy sounding word for that too) Newsflash- the large majority of attorneys dont do this or need to, and it is only the few bad apples that do.

    The real truth is that most attorneys actually save their clients a lot more money and trouble than they cost them, even when it is contrary to the attorneys making more money. This is why 98% of lawsuits settle before trial, because not going to trial is generally better for the client, and going to trial is MUCH better for the attorney’s bank account. If this guy was correct then most cases would go to trial and few would settle. The reason that most lawyers I know lose sleep is that there is only so much that is possible to do for their clients, and it is often impossible to fully get the clients out of the scrapes that they got themselves into.

    This guy needs to quit the business and go live in a commune somewhere, or even better go work for legal aid* where he can actually help people without making the money he so obviously hates, but instead he sits working at a job that he obviously does not enjoy in a career that he resents surrounded by people that he does not like, all in order to make evil money. I have a psychological theory for him, I call it “look in a mirror and change what you see if you dont like what is looking back at you.”

    *Legal aid attorneys are generally very noble and selfless working in difficult conditions, making little money, in order to help those that cannot afford legal services to reolve their issues. Volunteer or give to your local legal aid organization. You will be glad that you did.

    • http://lawyerist.com/author/andymergendahl/ Andy Mergendahl

      You wrote, “The very basic premise of the article is that is that getting paid by your client is against their interests.” But that’s not what I wrote. I wrote that often, if a lawyer does what’s best for the client, it will lead to lower fees. Your reply is based on a failure to understand my premise. Also, I didn’t make up the term “cognitive dissonance.” I provided a link to Wikipedia’s entry on it.

  • Steven

    I think this article is excellent. Not that it might not generalize or make some overstatements, but in general attorneys are blind to their own self-interest in billing, etc.

    Mr. Singer’s comments seem to reflect his own cognitive dissonance as much as they make his point. Lawyers are business people, need to act as such and are entitled to make money. They, however, are not waiters, unless you somehow have a lawyer who is ethically obligated to act in your best interest; then yes, that waiter should not serve you food that has a negative impact on your health.

    The article should not be read in pieces, but rather taken as whole to understand how a lawyer operates and how some of a lawyer’s decisions may be influenced by factors that are not purely aligned with a client’s interests. The nature of hourly billing creates a lot of opportunities for lawyers to act in a way that is not adverse to their clients’ interests, but the value delivered may not be as high as the client expected.

    In the end, it comes down to lawyer communication and the client understanding. As long as there is a mutual understanding and appreciation of exactly what is being done, why and for how much then everyone’s best interests are being fairly represented.

    -Steven

  • Gary Singer

    1. (Andy) You basically lumped most family lawyers into a group that fires up their clients anger just so they can drain their bank accounts. Please….
    2. (Steven) I am waiting to see the waiter that says “You are too fat, I am not going to bring you dessert” Never going to happen, though it might have saved me a few pounds…
    3. (Andy) I did not mean to accuse you of making up “cognitive dissonance”, it was clearly made up by someone else.
    4. (Andy) I did not miss your premise, I just don’t agree that charging a client for work performed is somehow a conflict of interest. I work hard for my clients and chrge accordingly. I have a right to appropriate renumeration for my services. I am not denying that there are a few bad apples out there that churn their bills, but they are the rare exception, not the norm as your premise suggests.
    5. (Andy) You comment that if a lawyer does what’s best fo his clients it will lead to lower fees – I ask – why would or should one thing have to do with another? Truth is that higher fees should be gotten by doing what is best for a client! In reality, when you put your clients’ interests first you make more money. More money in fees, more money in referrals, more money in repeat business. And more happiness in doing a good job and serving your clients well. There is no cognitive dissonance in that!

    • http://www.lrmstrategies.com Steven

      Exactly! A waiter would never say that because that is not the waiter’s job. If you were asking your physician or physical trainer or spouse (at least in my case), however, I expect you would get a different answer.

      This is stretching the analogy a little too thin, however, but in the legal scenario the lawyer tends to be the waiter and the physician, putting the lawyer in the position where leading the client in one direction cannot be done without potentially hurting the lawyer’s other interest.

      Take fees out of it though. Think about how often you have seen a lawyer representing a client on a matter that is not within that lawyers expertise. I don’t think I am sitting in an ivory tower (per Mr. Primeau), rather I am speaking specifically because of what I have seen working in the profession. And I don’t think the cases are rare or exceptional, but clearly there are people who don’t succumb as easily as others.

  • John Primeau

    I agree 100% with Gary’s comments. This post reminded me of the utopian fantasies of my ivory-tower college professors who never actually ran a business or worked outside of academia. In the strictest technical sand philosophical sense, there is always going to be some inherent conflict between the clients’ interest and the lawyers’ interest if the lawyer is charging the client. That’s the same conflict between my doctor and me or my accountant and me. I don’t let that stop me from interacting with them and utilizing their services. Unless you’re willing to work for free, that theoretical tension between the respective interests is always going to be there.

    Your exaggerations lead to only 3 results:
    1. The lawyer lies to himself and creates rationalizations (excuses, really), by emphasizing certain facts over others, by overestimating the quality of the work done, and by many other tried-and-true methods.
    2. Spend all day happily not helping their clients as much as they could, or should. Or even hurting their clients.
    3. Don’t sleep well, often abuse mood-altering substances, really hate their jobs, and sometimes take their own lives.

    Here’s a fourth one. You show up to work every day and try to the do your best to help your clients. You advise the client based on your education and professional experience and let the client make an informed decision. If that client chooses a lower cost approach (against your financial interest), you accept that and do your best to protect your client’s interest within their decision framework. If the client’s decision is against your financial interest on a particular matter, you do your job anyways and simply make less money on this file. All the while, you know that you have plenty of other paying work, and you hope that the client will appreciate your efforts and will be a repeat client and will refer other matters to you. I’ve been doing it that way for 15+ years, and I sleep just fine at night, enjoy my job, and don’t need to take mood-altering substances.

    PS – Even if a lawyer worked for free on a case, somebody will then write a blog article which says that lawyer cannot effectively serve the client’s interest since the lawyer’s actions will be affected by the fact that he’s not getting paid on that case. Therefore, he will act differently (and hurt the client’s interest) so he can move on to a paying file.

  • Lynn Hunt

    Does a doctor have cognitive dissonance by helping people recover from an illness? Based on what your writing, a comparable analogy is for a doctor to have “cognitive dissonance” as it is to his benefit to keep his patients ill, and continue billing them rather than heal them? The term cognitive dissonance is used to describe the feeling of discomfort that results from holding two conflicting beliefs. If you are an ethical attorney working for the best interest of your client, being “fairly” compensated should not pose any ethical conflict. Your article implies that many attorneys are “conflicted” because their desire to make money conflicts with their fiduciary responsibility to serve their client. Being a good a businessman does not preclude an attorney from being ethical, nor does it undermine his ability to serve the best interests of the client.

    I think this kind of article only reinforces the fear or stereotypes that many clients have about the legal profession. You took a psychological term and broadly applied it to a profession, suggesting that lawyers value their own monetary gain more than helping people, as Mr. Singer stated look in the mirror and speak for yourself.

    • http://www.lrmstrategies.com Steven

      People will think I am the author based on my adamant defense of the article, but I didn’t see the article as saying lawyers are keeping their clients sick, just that the ‘medicine’ they are giving may in some cases be overkill. If the way I read it is correct, then there is empirical evidence that the medical profession does exactly the same thing, for example by ordering unnecessary tests or prescribing drugs which are either not needed or which could be replaced by a generic.

      • http://lawyerist.com/author/andymergendahl/ Andy Mergendahl

        I swear on Black’s Law Dictionary (9th Ed.) that Steven is not me. But thank you , Steven. I appreciate it very much when somebody that “gets it” comes to my aid.

        • Gary Singer

          Misery loves company ;)

          Shame that the rest of us who actually like what we do and respect our chosen profession and colleagues, and aren’t embarassed to collect a fair fee for a fair day’s work, don’t “get it”. I guess that I will have to keep reading your posts until I realize how horrible lawyering is and how lawyers are nothing but a bunch of thieves that do little more than make mountains out of molehills just so they can line their greedy fat cat pockets for all the unnecessary work of enticing their clients to hurt their children.

          I have spent a lot of time writing these responses today, I wonder which of my clients I should bill for it just so I can make my hours for the day and not be the laughing stock at the yacht club?

          Harumph Harumph tut tut and cheerio, old boy!

  • Bud

    This Gary fella sounds like one of them greedy 1%er Wall Street fat cats.

  • http://blog.simplejustice.us shg

    Talk about the comments to a post going off orthogonally. I think Andy was quite clear that he’s raising an issue worthy of thought, and hardly a condemnation of lawyers or, god forbid, lawyers getting paid. I am a true believer in capitalism, by the way.

    Rather, we all know lawyers who are, how can I put this delicately, slightly more concerned with their own fiscal welfare than that of their clients. Not any of us, of course, because we would never charge a penny more than was absolutely necessary and duly earned.

    Rather, Andy raises the question of whether the lawyers we know to be scoundrels (which by definition excludes everyone here and all public defenders anywhere) engage in a bit of self-deception to rationalize their conduct, choices, advice, so that it coincidentally serves their own interests slightly better than that of their clients.

    Is it possible? Could any lawyer possibly do such a thing? I know, it’s nearly impossible to imagine such a thing, lawyers being the dedicated, wonderful, altruisitic souls that they are.

    But just in case, if we closed our eyes very tight and pictured in our mind’s eye a lawyer who counseled a client to take a path that served to benefit the lawyer but, at least to everyone here since we’re imbued with absolute integrity, maybe not so much the client, could we see that happening? Could we hear the lawyer tell himself why it’s really in the client’s best interest, even though we, outsiders and moral to a fault, know otherwise?

    And if we picture this lawyer in our mind’s eye, whose face would be atop the body? Andy is asking us to look hard to be sure it isn’t ours. I don’t see any problem with a bit of introspection to be sure we are what we think we are. And naturally, everyone reading Andy’s post knows the face won’t be theirs, because only wonderful, moral, perfect lawyers read the Lawyerist.

    • http://lawyerist.com/author/samglover/ Sam Glover

      I think the danger is more subtle, actually. When I switched to flat fees, I started finding ways to resolve cases faster than I ever did while handling similar matters on an hourly basis. I never made a conscious decision to take the long way to a client’s goal, but the more efficient strategies simply never occurred to me until I changed my fee structure — and therefore my perspective.

      I’m not saying everyone should adopt flat fees, but I am saying that we all need to make sure we keep our minds open to other ways of serving our clients. Hiding our heads in the sand and reassuring ourselves and everyone else that we would never over-bill doesn’t do a damn thing for anyone.

    • Andy Mergendahl

      Pitch-perfect, unlike my post. And thanks for the idea. More, please.

  • Gary Singer

    shg, use your real name if you believe in what you say – it would help us believe that you believe it.

    Andy is not saying what you are saying he is saying (say that 3 times fast). You seem to be indicating that it is an exception where as Andy says “Lots of lawyers, driven by their own best interests, are enablers for their clients’ worst instincts. This is particularly true in family court. A lawyer is “doing what the client wants” while draining the client’s bank account, and if there are children, harming them too.” His article indicated that he feels that the moral attorney is the small minority and the scoundrel, the norm.

    You specifically exclude public defenders, whereas Andy specifically includes them.

    You say you agree with what Andy is saying, but clearly you do not.

    However, you clearly know Andy, or why else would you say you agree with him, and then explain it in a way that shows you do not?

    I am sure Andy is a swell guy, but he has clearly soured on his profession and should move on to a new career that he enjoys and is not ashamed of. He is helping noone here, clearly not himself. Andy writed fairly well, I would recommend journalism or maybe writing a book.

    And SHG, you have nothing to fear from us, your colleagues. Use your name next time. (Unless, of course, your name is SHG in which case – how do you pronounce that? Maybe Shug, like how a deep south waitress calls everyone in B movies?)

    • http://lawyerist.com/author/samglover/ Sam Glover

      Try clicking his initials if you are curious. They link to his blog.

      • http://blog.simplejustice.us shg

        Or he could just click on my name in the post. I bet Gary is gonna feel a little silly when he realizes that I’m not exactly anonymous. Or Andy’s mother.

        • http://lawyerist.com/author/samglover/ Sam Glover

          He doesn’t seem like the type to ever feel silly.

          • Gary Singer

            And Sammy, with that pompous and unnecessarily nasty comment, my point is proven and I am done playing in your sandbox. Best of everything to you, and I hope that you find your passion for your profession again, even if it is not this one. And Sam, you are wrong. I know that I would be silly to ever visit your blog again, or dare to disagree with you or one of your buddies. My bad. I was silly. I thought that this was a forum for discussion, but apparently it is just a a forum for agreement.

            • http://lawyerist.com/author/samglover/ Sam Glover

              Oh, stop taking yourself so seriously.

  • Gary Singer

    Bazinga! Me not being a regular to the blog, I feel awfully ridiculous about not knowing that. 2 points for the regulars. You got me now!

    However none of that changes my opinion that despite the few bad apples that you will find in any profession, most lawyers truly want to help their clients and put their own interests secondary to their clients time after time; and that charging a fair fee for our services is NOT an inherent conflict of interest.

    The truth is that all professionals sit on a bell curve of sorts, and there are great lawyers and scoundrels on either end, but the vast majority in the middle are decent hard working types that genuinely care.

  • Adam W

    Gary Singer, you said that its okay to collect a fair fee for a fair day’s work, but what is fair to you is not fair to your clients. Imagine if I told you the Vanity Mirror for your bathroom would be 200.00 dollars. Yet when I got there I told you if you wanted me to “seal the mirror” it would be an additional 50 dollars, then I told you if you wanted Mastic on the wall that holds the mirror up that would be an additional 50 dollars then I told you the removal of the old Mirror would be 100.00 dollars, then I told you the clips for the mirror would be ten extra dollars, and if you wanted more than a 30 day warranty it would be an additional 50 dollars and that we have to charge you an extra 80 dollars because there needs to be a cut out for the electrical outlet unless we can cover it but an electrical fire can occur, the end of the day the vanity mirror that you wrote out a check for 200.00 dollars now became a thousand dollar vanity mirror. The problem with Attorneys if they do 2 hours of work they bill you for 5. It works like this lets say you have a car accident and u take your car into the body shop and they say if you pay them cash they will charge you 50 an hour but if you go through your insurance company they will then charge 100 an hour for labor. So the auto body shops know they raise the price x2 for insurance claims but paying case is 1/2 the price. Attorney’s know a fortune 500 company they can charge more than bob down the street. Many young attorney’s cannot find employment and are doing Paralegal jobs because they have no choice. I disagree that you say there are only very few unethical attorney’s in the movie liar liar is a accurate portray of attorneys. As I watched my best friend get hit in the head with a chair as I was 2 feet away from where it occurred the attorney got my testimony thrown out saying if you were looking east when how were you looking west to the north to the south to the south east to northwest to the eastsouth… I said huh… he said your honor clearly this guy is to confused to be a witness and have me thrown out as a witness as my friend laid in the hospital with 90 stitches to the head. Even if I video taped it the attorney would argue someone to still get me dismissed as a witness. Attorney’s are paid to help their clients win even if they have to bend the truth to their liking.

  • Mike

    Criminal lawyers who have a scared ignorant client with money tend to drag the process on…and on That’s really all that needs to be written. No long verbiage laden statements from lawyers trying to rationalize those reasons are needed.

    The more I read what lawyers write and I listen to what lawyers say, the more I realize why most of our politicians have law degrees, they’re trained bullshit artists. The consummate actors in a kings court, watched by clowns.

    I have a lot more respect for commercial lawyers. At least they seem to know the abysmal UCC whereas 75% of criminal lawyers I’ve met know very little about the criminal codes of their state.

  • Brian S

    “being a runner (but not the act of running so much),”

    Lol – nice.