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Language gives us ways to remain honest and tactful–and to preserve client confidences

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Bryan Garner on Words

Language gives us ways to remain honest and tactful–and to preserve client confidences

Jun 1, 2013, 08:10 am CDT

In a poignant episode of David E. Kelley’s Boston Legal—a TV show in which lawyers frequently run afoul of ethical rules—a lawyer represents a man who seeks his son’s umbilical fluid, kept from birth, as his only possible cure for a terminal illness. His ex-wife won’t turn it over. In the course of interviewing the adverse party (the ex-wife), the lawyer learns that her client isn’t the biological father of his son, who was conceived during an extramarital affair. So the fluid can’t help. The father has an excellent relationship with his son—in fact, it’s the most important relationship in the father’s fast-dwindling life. So the lawyer lies to her client and says, sorrowfully, that the umbilical fluid was destroyed long before in a transportation mishap. End of story.

A good thing? Is it ever justifiable for a lawyer, acting in a professional capacity, to tell a lie? If so, when? I put these questions to 20 lawyers around the country—13 of whom considered it an easy question (never lie) and seven of whom considered it difficult and nuanced. The questions deserve exploration. First, some history.

THE DEVIL IS IN THE DUTY

In 1951 Charles P. Curtis, a renowned Boston lawyer, wrote a controversial article in the Stanford Law Review in which he conceded that although “it is inadmissible to lie to the court,” sometimes “a lawyer may be in duty bound to lie for his client.” And he reiterated it baldly: “I don’t see why we should not come out roundly and say that one of the functions of a lawyer is to lie for his client.” Here is Curtis’ chief example:

“A lawyer is called on the telephone by a former client who is, unfortunately, at the time a fugitive from justice. The police want him, and he wants advice. The lawyer goes to where his client is, hears the whole story and advises him to surrender. Finally he succeeds in persuading him that this is the best thing to do, and they make an appointment to go to police headquarters. Meanwhile the client is to have two days to wind up his affairs and make his farewells. When the lawyer gets back to his office, a police inspector is waiting for him, and asks him whether his client is in town and where he is. Here are questions which the police have every right to ask of anybody—and even a little hesitation in this unfortunate lawyer’s denials will reveal enough to betray his client. Of course he lies.”

Of course? Of course he lies?

Curtis’ article sparked no small firestorm within the profession. The noted advocate Lloyd Paul Stryker wrote that Curtis’ views “should be repudiated with scorn and contempt.” But Stryker did not say how the lawyer should have responded to the police investigator. This is my suggested response: “I can’t discuss this matter with you. Anything related to a client or former client is off-limits. That’s just the way it is. Goodbye.” A lie is simply unnecessary here.

The balance of the Curtis-Stryker debate in the 1950s fell strongly in Stryker’s favor. William Dean Embree of the New York City Bar Association spoke eloquently on the subject:

“I thoroughly and vigorously disagree with Mr. Charles P. Curtis of the Boston Bar [Association]. The lawyer owes entire devotion to the interest of his client. He must use his utmost effort and all his ability for his client. This is the very heart of advocacy; this is the chief glory of the profession. But the lawyer is never required to resort to any step or procedure that impairs his own character or may weaken his standing in the profession or before the courts; no one can ever lie for his client without impairing his character and without weakening his standing in the profession and before the courts.”

Now let’s make some distinctions. Lying commonly takes one of three forms.

First is the outright lie, which can range from the simple (saying no when the truth is yes) to the more grandiose (“whoppers,” such as falsely claiming to be a Grammy-winning songwriter or the heir to an enormous fortune).

Second is the suggestio falsi, by which one intentionally leaves a false impression, as by suggesting that a corporate official makes money “on the side”—at work, mind you, but corruptly.

Third is the suppressio veri, or tacit lie, by which one recognizes that another has come to a false conclusion, based on a misunderstanding, and passively allows the misimpression to persist in circumstances in which one might reasonably be expected to correct the misimpression (e.g., allowing the court to believe that a phone call was placed on June 21, a critical date, as opposed to July 21, the correct date).

Lying entails scienter: The liar must either make the statement knowing of its falsity or make it in reckless disregard of its accuracy. One acting in good faith on seemingly reliable information cannot be said to lie, no matter how false the information ends up being.

For the liar, the biggest problem is that one lie begets another. In the words of Sir Walter Scott, writing in 1808: “Oh, what a tangled web we weave, / When first we practice to deceive!” Lies inevitably proliferate.

It can be enormously tempting to lie. It can seem convenient as a way of saving embarrassment or punishment, or of enhancing your image or gaining a competitive advantage. These temptations confront the frailties of human nature and present a huge problem in human affairs—and therefore in the judicial system as well.

Most of us know people whose assertions must be discounted to some degree because they exaggerate. You may even know someone who experience has taught you cannot be trusted at all—even with the time of day.

But then perhaps you also know someone whose word cannot be doubted. If he or she says something is so, then you’d never doubt that person’s sincere belief that it’s so—and probably you’d be assured of the objective truth of what the person said.

And this dichotomy brings us to the rationale for the traditional no-lying rule. Long-term self-interest demands truth-telling, even if short-term self-interest can seem to counsel lying. If you want to be taken seriously as a professional, and if you want to be a credit to your profession, you must fiercely protect your reputation for honesty. And the only way to do that is to tell the truth—consistently.

Hence the time-honored maxim Falsus in uno, falsus in omnibus: Someone who lies about one thing can be regarded as lying about everything.

THE DIFFICULTIES OF DISCRETION

But what about white lies? Yes, discretion may, it is true, require some modest degree of suppressio veri, particularly for social reasons.

If you’re leaving a party because of acute gastrointestinal problems, must you say so specifically? No. Discretion requires that you state the problem at a higher level of abstraction: You’re not feeling well.

What if a colleague asks your opinion about his or her new office decor, which you consider ghastly? A muted, neutral expression of an opinion may be the best course: “You seem quite happy with it, and I’ll bet you find it conducive to productive work.” If your interlocutor persists, you might say, “It’s not entirely to my taste, but I can see that it suits you.” When asked to elaborate, demur. What is not admirable here is to engage in outright lies: to heap fulsome praise on the decor in the presence of your colleague and moments later disparage it privately.

“Does this outfit make me look fat?” What to say? No is the safe answer—and it’s invariably honest because: (1) No, you look fine; or (2) no, it’s hardly the outfit’s fault.

“Is Leslie throwing a surprise birthday party for me?” What to say? “I don’t know,” even though you know Leslie is—another modest kind of suppressio veri. The confidentiality of her plans, in ordinary circumstances, trumps your friend’s wish to spoil the hoped-for secrecy and surprise of the party. But circumstances can change: If your friend is deciding about scheduling an out-of-town business trip the day of the party, you may truthfully tell your friend about Leslie’s plans. Like so many ethical judgments, it’s situational. But even if tact in certain social situations may require trivial instances of suppressio veri, these are generally few and far between.

In law practice, the most usual cause for suppressio veri is the need to preserve client confidences. Someone asks you: “Was your client at the apartment that evening?” Your client has already said in confidence that she was, and an affirmative answer is prejudicial. If the question is put to you when not under oath, you probably shouldn’t answer it at all: “We’ll see how the record develops.” Or: “That’s for the fact-trier to determine.” If the question is put to you under oath, it’s objectionable as calling for hearsay and for violating the attorney–client privilege. You generally shouldn’t have to answer.

A federal judge poses this situation: A deranged husband is beating on your door demanding to know where his wife is—she’s your client and is hiding in your closet. You lie (“I have no idea”) to protect her welfare. To say that you really meant you have no idea whether she’s on the north or south side of the closet—and therefore you were being truthful—is tergiversation. (If you don’t know that word, please learn it.) But this “lie” isn’t made in a professional capacity—and it’s the exceptional case that few lawyers will encounter.

A bankruptcy attorney for debtors poses this situation: You’re hired to represent a prospective debtor (Acme)—a Fortune 100 company—that is considering a Chapter 11 filing. The bankruptcy bar is a small community. A colleague at another firm says over lunch: “I’ve heard you’re representing Acme. Is that true?” To say “No comment” is equivalent to an admission. And to say yes in any way is to breach a fiduciary duty: The company’s stock will plunge. So you say you know nothing about it. A lie. (The cleverer response, he says, is misdirection by repeating a false rumor: “I’ve heard that Grigsby Palatine might be representing Acme.”)

I asked this bankruptcy lawyer—ahem, restructuring lawyer—how long he’d been in practice and how many times he’d had to lie in a situation like this one. In 10 years, he said, it had happened at least 15 times.

In these two situations, as in Curtis’ example involving the fugitive, a fiduciary duty seems to require a suppressio veri—if not an outright misdirection to protect a client. But what’s so bothersome about the Curtis example is lying to authorities. Perhaps the best answer is: “Officer, you know very well I couldn’t talk to you about a client —even if I hadn’t seen him in years. I’m sorry.” What a difference the verb’s subjunctive mood makes.

A strong majority of my correspondents insist on a bright-line rule for truth-telling. An ingenious lawyer can always find a good-faith way to avoid lying. Let’s say it’s a settlement conference where you’re asked, “Do you have authority to settle for any more than $20,000?”—and your client has authorized up to $35K. Instead of lying, you can play up your own role as counselor: “I’d advise my client against paying one penny more.”

A central problem is that once you start making allowances for lies, it becomes impossible to hold the lines. It’s a slippery slope. So perhaps Abraham Lincoln’s advice on this point is best: “Resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than the one in the choosing of which you do, in advance, consent to be a knave.”

Beyond the practicalities of honesty, there’s an intangible benefit that’s truly priceless: a clear conscience. Telling the truth frees you of worry about being found out and sets you at ease with yourself.

But remember that veracity doesn’t absolve you from a lack of diplomacy. You can and should remain tactful while being truthful. It may require every bit of ingenuity you can muster.

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