Lies surround us every day. But everybody wants to be an “honest” lawyer. Or at least everybody says they do. But does “honest” mean you can’t ever lie?
The United States v. Alvarez decision handed down last Thursday (the other decision handed down that day got a bit more publicity) reinforced the notion that the government cannot outlaw a simple lie, no matter how disgraceful it is. I started thinking about “honest” lawyering and the relationship between it and truth-telling. I’ve concluded that while lawyers should think a lot about how honest they are, or aren’t, they really don’t need to worry about never telling a lie.
In fact, that would be a terrible idea.
Why we must lie, often
The Alvarez case came to SCOTUS through the 9th circuit, where Chief Judge Kozinski wrote a fantastic opinion. In it, he explains why many types of lies are not only protected speech, but are in fact necessary for society to function:
Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”) . . .
Just to make it through the day, lawyers need to lie too, to clients, and others:
To protect happy hour (sorry I missed your call at 6; I was at my daughter’s recital); To avoid hurt feelings (sure, those clothes are okay for court); to avoid recriminations (the jury foreman obviously hated you for some reason); to calm fears (the workhouse is not as bad as you’ve heard); to secure a client (of course you should divorce her, and the kids will be just fine); for career advancement (I’m soooo lucky to work for a brilliant partner like you); to grow one’s reputation (I love that tie, your honor); to close a deal (no way would they ever sue over this); to get paid (yes, I will go after your 401(k) if you don’t pay my $1,500 fee). . .
and on and on.
So give yourself a break. If you’re a dishonest lawyer, it’s not because you are not a vessel through which the truth continuously flows like liquid gold. Your dishonesty is a wee bit more complicated than that.