Vol. 29, No. 9
CBA President's Message to Members
Do Lawyers Lie?
by Dale R. Harris
Outside the New York hotel, a man carried a billboard reading "Stop the Lawyer Disease." Just the day before, USA Today had hit the newsstands with two letters to the editor commenting on the Arkansas Supreme Court’s move to disbar President Clinton. One letter minced no words: "In practice, lawyers, judges and prosecutors are some of the most dishonest, deceptive and unethical people I’ve ever met." The other was less vitriolic but no less direct: "Clinton’s conduct has been just about what we have come to expect from attorneys. . . . In an adversarial system, lawyers do whatever they have to do because winning is the only thing that counts . . . [he] was only doing a lawyer’s job: trying to protect himself and win." Lawyers rarely have been objects of public affection, but that billboard and those letters were troubling reminders of a hardened attitude shared by far too many people today.
Tough Talk, Tough Solutions
Inside the hotel, I was one of hundreds of bar association officers attending a program sponsored by the National Conference of Bar Presidents ("NCBP") in conjunction with the annual meeting of the American Bar Association. The program was titled "Tough Talk, Tough Solutions-Re-establishing Lawyers’ Value." The message was sobering: that we are stewards of a profession in serious trouble, a profession suffering a significant erosion of public trust and confidence that must be stemmed and reversed if we hope to remain relevant to the public in the 21st century.
The speakers described one of several current efforts to address this problem-a project called the Professional Reform Initiatives ("PRI"), sponsored by the NCBP and funded by a grant from The Open Society Institute. This project began more than a year ago as a series of informal discussions among a small group of prominent bar leaders who believe that the loss of trust and confidence in the justice system as a whole, and the legal profession in particular, threatens the very fabric of the rule of law. They initially identified several factors they believed may lie at the heart of the problem: loss of lawyer credibility; the time and expense of civil litigation; money and its effects on lawyer behavior; the way lawyers regulate themselves; the effects of the lack of mentoring and the pressures of competition on lawyer competence; clients who are damaged by dishonest or incompetent lawyers; too many lawyers; and lawyer advertising.
An outgrowth of these discussions, PRI was established to pursue long-term reforms in lawyer practice and culture in an attempt to address these issues. PRI has decided to focus first on the public’s belief that lawyers are not truthful, that they will do or say anything that it takes to win or advance the position of their clients. Thus, the first "initiative" of PRI is "a program to reform lawyer culture and practice so that truthfulness is valued and emphasized in all contexts and that untruthfulness is punished."1
Is it Perception or Reality?
A fundamental premise of this initiative seems to be not only that the public believes lawyers are not truthful, but that, in fact, many lawyers-even "good lawyers"-do lie. One of the speakers at the New York program said it flat out: "Lawyers do lie." As examples, he pointed to the lawyers who are pressured to meet billable-hour goals and pad the timesheets to do it; or the lawyers who untruthfully tell the judge at a settlement conference that they have no more "authority" to go higher or lower; or the lawyers who distort facts or law inside or outside the courtroom; or the lawyers who try every way possible to avoid telling the truth in discovery.
We also might consider whether we too willingly excuse untruthfulness in the name of "zealously" representing our clients. Floyd Abrams, the distinguished First Amendment lawyer, said a few years ago that finding the truth isn’t always the highest priority in a criminal trial-winning is. He was writing about the O. J. Simpson case which, he argued, "raises broad questions about just what it is our society asks lawyers to do, and the rather breathtakingly amoral way in which they do it." 2 Abrams pointed out that, under our system, it was the duty of Simpson’s lawyers to attack his accusers, to attack the validity of the DNA tests, to impugn the credibility of the police, and, if at all plausible, to attack the character of the victim-all without regard to whether or not Simpson actually was guilty of the crime with which he was charged. Abrams suggested that society should demand that lawyers view themselves more as part of a system of law, and less as the alter egos of their clients. He concluded in this article that "it is time to ask whether it really leads to justice to have a system in which many lawyers spend far more time avoiding truth than finding it."
PRI’s First Initiative
This raises serious and deep questions about the role of lawyers in an adversarial system. Regardless of how one views that fundamental issue, many people believe that we must elevate the importance of truthfulness in every lawyer’s practice. To this end, PRI has initiated a "movement" to rebuild and enhance the legal profession’s reputation for truthful, reliable, and honest service:
Fundamental to such a movement is truthfulness. Without truthfulness from lawyers in their dealings with their clients, the courts and the public, there is no honesty or reliability and there will be a continued decline in public trust and confidence in lawyers, the laws and the court system. Justice is best served when the truth is told.3Emphasis in original.)
PRI preliminarily has suggested several practical ways to attack the problem. They include the following ideas:
- Publicly support those judges who demand truthfulness and honesty from all who appear in court and who impose meaningful sanctions for offenders.
- Encourage courts to devote more time and resources to devising practical, cost- and time-effective ways to find the truth when it is evident someone is misleading the court.
- Educate business and the general public regarding the lawyer’s duty to be truthful to the court, and the court’s resolve to sanction lawyers and clients who are not.
- Sponsor CLE programs emphasizing honesty in billing and highlighting dishonest billing practices.
- Establish a system-wide database of court orders sanctioning lawyers for dishonest behavior so that repeat offenders can be identified.
- Encourage law schools and bar admissions committees to emphasize that truthfulness and honesty are the touchstones of our system of justice.
- Establish mentoring programs for beginning lawyers that include an emphasis on the lawyers’ obligation to be truthful in all contexts.
What Do You Think?
I am troubled by the implications of all of this because I share the view that the majority of lawyers value truthfulness highly and equate it with justice. Nevertheless, the question whether truthfulness increasingly is becoming devalued in our profession is an issue we cannot duck. I would like to know what you think. Do you agree with PRI’s fundamental premise that far too many lawyers do lie? If so, how can we practically address the problem? Do you agree with Floyd Abrams that the system itself invites evasions of the truth, if not outright lying? Should the system be changed? If so, how? Is this a problem in Colorado? What role, if any, can the Bar Association play in all this? Is it merely a matter about which each of us individually must search our own conscience?
Write me a letter addressed to the CBA, 1900 Grant St., 9th Fl., Denver, CO 80203, or send me an e-mail: dale.harris@dgslaw. com.
1. From a collection of papers produced by PRI and distributed at NCBP Conference, July 8, 2000.
2. Abrams, "Why Lawyers Lie," New York Times Magazine (Oct. 9, 1994) at 54.
3. Supra, note 1.
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