There was a point in time when parents taught their children that sticks and stones may break one's bones but names could never hurt. Unfortunately, most children learn the sad truth that words can actually hurt when they encounter their first bully or experience their first heartbreak. These days, I believe that this once wise saying has all but been retired as the cruel words of people push their victims past the point of pain and towards a point of desperation. It is easy to see how such words can hurt on an emotional level, so we are all aware of the damage some words can wreck on the hearts of those around us. But what other kind of harm can words cause? Should we only be concerned with those words that hurt our emotions or the emotions of others, or should we turn our eyes to a more pervasive and abstract sort of damage?
Some things don't really need to be taught to people; we learn them, somehow, while still in our youth without any instruction. Lying is one such skill that so many of us seem to acquire along with the rest of speech. Bill Cosby, in his stand-up special Bill Cosby, Himself, relates a story about his little girl to illustrate just how young a child learns to be dishonest1. She made her way into the cabinets to get into the box of her favorite cookies, which forced him to put the box on top of the refrigerator. The story goes on to relate how he returned to what he was doing, only to walk back into the kitchen and find that is three-year old daughter had managed to construct a ladder to retrieve the box of cookies. When caught, she responded with “I was trying to get the cookie for you.” He told her that he didn't want the cookie, so she asked if she could have it instead. The audience laughs, but like most of this particular stand-up, there is a large portion of truth and familiarity within each joke. I recall my own lies as early as five or so, and through much discipline and developing my own sense of morality, the less than savory habit was confronted.
If this was a psychology paper, perhaps I would spend more time looking into just how a child learns to lie. The reasons (and excuses) for lying are usually pretty self-explanatory. The child wants to stay out of trouble, keep the toy, get someone else into trouble...the list goes on. It is only when we each start to develop our higher thinking faculties that lying becomes a means to a much greater end, should we choose to still employ the technique. Instead of purely personal agendas, the lies and reasons become that much more sophisticated. The lie was to boost her self-esteem because you're tired of seeing her being so negative about herself. The truth w5ould hurt him too much, so I told as much of it as I could. We can develop principles that will allows us to lie for the sake of others. However, can we make a valid argument that lying is of any good or contributes anything positive to the human experience?
In her book Lying, Sissela Bok defines the topic action as “any intentionally deceptive message which is stated.2” This paper will start with Bok's definition of lying and look into the implications of lying within the legal field, including why those within the profession should even care about lying. Then I will move the conversation on to how to deal with various liars and lies based on the ethical standard of the person doing the lying. Finally, I will look at lies of omission and the implications that such lies have within various aspects of the legal profession.
My Brother's Keeper: What does lying have to do with me?
The lawyer has to juggle several obligations, and it is a matter of what order of priority she wants to place them in. What is at the top of her list when it comes to her professional obligations. Undoubtedly, every lawyer as certain obligations to her client, but there is always a question of what (if anything) stands above the obligation. A close question that may help the lawyer that's never thought about just what priority is where could be “what role do/will I play as lawyer?” Even if the only concern and ultimate goal is obtaining the best possible outcome for your client, part of that concern must be based on a concern for the truth, even if it is just a concern that the truth doesn't actually emerge.
Bok explains that a key aspect of lying is the intent to mislead3. In a system which we refer to as the “justice system,” is there a place for misleading and outright lies within it? When people speak of justice, the idea of upholding truth is not far off, along with any other number of ideas. The teachers of our professional ethics courses remind us that while we owe a certain duty to our clients, prospective or otherwise, we also owe a duty to the profession as a whole. Undoubtedly, various teachers will place one over the other or (worse) leave the ultimate call to each prospective lawyer. At the end of the day, because the legal field is one of the few professions allowed to self-regulate to such a great degree, every lawyer is charged with the duty to uphold a certain standard. Within that standard is a certain respect for the truth, regardless of whether or not it plays in your favor.
The Model Rules of Professional conduct state that a lawyer shall not knowingly make a false statement of material fact or law to a third party4. While this rule limits lying to matters that are material, the rule still demonstrates the principle that lying is not looked kindly upon, regardless of for whom the lie is being told. There are limits to zealous advocacy when it comes to dealing in or with truth. Another idea of the importance of honesty within the legal arena is embodied within the crime of perjury. Merriam-Webster defines perjury as “the voluntary violation of an oath or vow either by swearing to what is untrue or by omission to do what has been promised under oath.5” Under federal statute, a charge of perjury can result of up to 5 years of jail time or a simple fine.6 Once again, this crime must be about a material matter, but the concern with preserving truth as it pertains to justice is still evident.
So what do rules such as these mean for us lawyers, other than more rules to follow and more laws to be aware of? How much it means to you ultimately comes down to the role you claim for yourself. If your primary concern is being a means to an end for your client and doing what you can within the boundaries of the law for him/her, then whether or not lies show up may not be a primary concern of yours. However, if your own personal ethics or your concern with justice or the system as a whole are one of your top priorities, then you may care a little more about what you can do about lies when they rear their ugly heads.
The Way You Lie: Ethical standards and the lies they produce
It seems that the older people get, the more complicated they have the potential to become. Part of this complicated nature of man is inherently the moral code by which one chooses to live by. Very few of them are so pure that they adhere completely to whatever set of morals they subscribe to. No person alive can keep all Ten Commandments or function solely on the basis of reason. However, most of us would be able to articulate if not the specific name and precepts by which we live, at least a general maxim that guides our moral decisions.
Whether or not to lie is one such decision, and the rationale that we give for lying can point a clear finger at one's primary (or momentary) ethical standard. The value that we place on truth and honesty are inherently tied into our own sense of morals. Does truth have inherent value or is it a means to an end to be used as we see fit? Such questions as these are meant for each person to answer on his or her own. However, knowing where someone else stands from a moral perspective can be of great benefit.
Since a person typically makes decisions as they conform to his set of moral and ethical beliefs, how a person acts and the rationale behind such actions can give clues to the attentive observer about the underlying ethical standard that guides a given individuals thoughts and actions. So, should you in your professional life encounter a client or fellow professional who seems intent (or suggests) lying, perhaps knowing where the person is coming from will be the best way to know how to steer them away from the lie7.
Ethical Egoism
Ethical egoism, the belief that a person ought to act in her own self-interest, would seem to look kindly on lying since we tend to see lying itself as a primarily self-serving act. However, it could still be hard to know exactly what to expect from her in the realm of falsehoods when you factor in the underlying philosophical beliefs of a person who may claim such an ethical standard. Within this ethical standard are those that apply their beliefs to everyone (all people should act in his or her own self-interest) and those that believe everyone's beliefs should apply to them (all people should act in my self-interest). The former may believe that you are entitled to lie to advance yourself while the latter may expect you to lie for her. On the other hand, some may be just as opposed to lying as anyone from another ethical standard. If we can assume that Ayn Rand's fictional works are platforms for her philosophical and ethical beliefs, she articulates this concept through her fictional character John Galt: “Honesty is the recognition of the fact that the unreal is unreal and can have no value […] [H]onesty is not a social duty, not a sacrifice for the sake of others, but the most profoundly selfish virtue man can practice: the refusal to sacrifice the reality of his own existence to the deluded consciousness of others.8”
Rand essentially argues that lying is embracing that which has no value, which inherently cannot be in one's self-interest. What sense would it make to value that which has no value? Rand's brand of ethics is that “man is an end to himself, not the means to the ends of others. He must exist for his own sake, neither sacrificing himself to others not sacrificing others to himself9.” Coupled with reason as man's primary instrument to understand the world around him, it would be unethical to give value to something that is without value, such as a falsehood. Furthermore, Galt speaks for her when he states that “deceiving the mind of others is an act of raising your victims to a position higher than reality, where you become a pawn of their blindness, a slave of their non-thinking and their evasions, while their intelligence, their rationality, their perceptiveness become the enemies you have to dread and flee.10” In short, something else has taken a higher priority in your life than your own reality. Since ethical egoism all turns back on the self as the ultimate focus, valuing anything other than you, and therefore, your reality, is wrong.
You also have those who combine the concept of egoism with other philosophies, inherently coming up with a different spin on lying. LaVeyan Satanism, a movement that believes in self-indulgence (even at the expense of others), raises “self” to the level of a deity and advocates any behavior so long as the person can justify the action and accept the consequences11. Under this doctrine, advancement of self-interests is paramount, limited only by very general rules that set some semblance of boundaries, and those limited primarily to respecting the physical boundaries of others. If someone comes into your own physical boundaries...well, that is an entirely different manner.
The principal text for LaVeyan Satanism, The Satanic Bible, is a book primarily comprised of essays which lay out LaVey's ideology, and while not speaking directly on the subject of lies, LaVey does show a distinct disdain for them. In section two of the Book of Satan, LaVey states that the “lie that is known to be a lie is half-eradicated, but the lie that even the intelligent persons accept as fact […] is more dangerous to contend against than a creeping pestilence12.” However, another text claiming to follow the Satanic philosophy states that truth is better than lies unless the lie would reveal the truth13. While a rather odd statement, it can be demonstrated by a simple scenario.
Sister is pretty sure that older Brother has been reading her diary but isn't completely certain. All attempts by her to find out, from straight out asking to careful attention, have resulted in nothing. To draw him out, she starts writing outrageous entries about sneaking out at night from dusk until dawn, culminating in a “decision” to run away with some older man. When older Brother reacts, either by telling the parents or confronting her himself, Sister calls him on the fact that he has been reading her diary after all. Of course, Sister has to then untangle the mess she's created for herself, but if the end result was to get Brother to stop reading her diary or bring the truth out, then mission accomplished. As long as she can accept the consequences of her lie, then self-interest prevails.
So, how does one deal with an egoist when it comes to lies? While only two aspects of egoism were dealt with here, it would appear that the best way to convince an egoist not to lie is by convincing her that it simply is not in her best interest to do so. An egoist who happens to also subscribe to Rand's philosophy of Objectivism could be aptly reasoned with by pointing out the same argument laid forth by Galt above. Falsehoods are inherently valueless, and should not be used to advance one's personal interests. They have nothing to add to one's existence and only detract from the reality that one has come to know. This argument could work equally well for the client or fellow attorney. Now, convincing a self-indulgent egoist that lying is not the choice to take may take a little more thought and a little deeper digging. The stereotypical “I didn't do it” in the face of overwhelming evidence may not be dissuaded, particularly depending on the severity of the consequences. Such an egoist would rather escape the condemnation of society than be truthful. The real question, more so here than in other ethical standards, is how the particular person views lying – as something to be hated or something one can use if the occasion so fits. However, the former would probably not lie in the first place and the latter would justify the lie as necessary. At the end of the day, dealing with an egoist all boils down to the self and what the self wants and/or is entitled to receive. Isolate that interest, and you'll at least be able to understand where the client or lawyer is coming from ethically.
Utilitarianism
Utilitarianism, as defined by John Stuart Mill, is that which “recognize[s] in human beings the power of sacrificing their own greatest good for the good of others.14” Mill went on to cite Jesus' words of doing to others as you would have done to you15. Does that include lying for the sake of others? Mill's opinion on lying starts off thus:
“[A]ny, even unintentional, deviation from truth, does that much towards weakening the trustworthiness of human assertion, which is not only the principal support of all present social well-being, but the insufficiency of which does more than any one thing that can be named to keep back civilisation, virtue, everything on which human happiness on the largest scale depends.16”
Bok digs deep into this concept, pointing out that deception's “potential for coercion and for destruction is such that society could scarcely function without some degree of truthfulness in speech and action.17” However, Mills then goes on to say that there are exceptions to this principal, such as when the lie “would save an individual (especially an individual other than oneself) from great and unmerited evil.18” Bok echoes the sentiment, saying that if “to use force in self-defense or in defending those at risk of murder is right, why then should a lie in such cases be ruled out?19” Simply put, utilitarianism does not simply write off all lies, but rather creates a narrow area where lies would not only be condoned, but perhaps even expected. With utilitarianism, we are concerned with the ultimate outcome of the action rather than the action itself, so we have to look at the overall effect of the lie being told. We must weigh the harm done by the lie with the harm that would be done if the lie were not told and ask which would be greater in view of its impact on others. In such cases as those described above by Mills and Bok, the answer is rather simple. The harm of misleading someone else who intends to deal serious harm to another is worth the benefit of saving the life in peril.
History is full of these kinds of lies, such as those told by the people who harbored Jews during the Holocaust or those that harbored runaway slaves during that era in American history. History also paints a clear picture of how we are to view these people, and it is typically in shades of bravery and selflessness. Utilitarianism, while not quite selflessness, is close enough in that it prefers the other to the self if a choice is to be made, and so Mills would probably say that the lies told in those situations were for the greater good. The balance in favor of lying does decrease as the seriousness of the harm does as well. Eventually, we must run into gray area. To save lives? Sure, lie away. To keep people from serious physical harm? Lie if you must. To protect people on an emotional or physical level? To save a bunch of jobs? Where is the line to be drawn?
In the film Watchmen (spoiler alert!), the character painted as a villain, Azmodeous, constructed a weapon to mimic the powers of Dr. Manhattan, orchestrating an attack on several key cities to make it look as though this former superhero had done the deed. Azmodeous' explanation was that he did so in order to prevent the world from falling into nuclear warfare. The few lives that were taken in his attacks were worth preventing a global war as the US and Soviet Union were poised to set off the nuclear arms they both had in possession. He argued that the “attacks” by Dr. Manhattan would give the whole world a common enemy, creating unity in a time of potential war. Dr. Manhattan agreed to take the blame for the attacks and not reveal the truth. Utilitarian?
One of the problems with dealing with the utilitarian approach to lying is attempting to decide what “the greatest good” truly is in this situation. How do we define “great and unmerited evil?” Must we only speak in terms of what we can see or can we lie to prevent future events or the unseen aspects of mankind?
Truth be told, there is a personal ethical dilemma that may occur here in addition to the desire to talk the liar out of the lie, especially if you subscribe to the utilitarian ethical standard as well. Do you allow the lie based on your ethical principles and decide not to try and talk the liar out of it? At this point, you as a lawyer have to decide to whom who your greater duty – legal or personal ethical principles. Like most other rules in the Model Code, there are loopholes in allowing a client to take the stand and testify, giving the client a chance to lie while not being personally culpable for the act. If, in your mind, the harm of the lie is outweighed by the potential harm to society, then it may well be worth the risk.
As for dealing with the liar herself, it is a matter of using the great destructive potential of lies in this situation to dissuade. Justice can only be administered if the truth is told, and to tell a lie would be to corrupt the system and try to manipulate it. An example would be if a client or lawyer wants to introduce false evidence to solidify a case against a criminal in order to ensure that she is put away; or, on the other hand, if a client or lawyer wants to introduce a false alibi in order to ensure that an innocent accused is found not guilty. It would undoubtedly be the first time such a lie was told. The question to be posed to the liar should be “Is putting one person away/ ensuring one person's freedom worth corrupting the system as a whole? If the system is corrupt and you are trying to 'fix' it, aren't there other ways that would achieve it without lying?” Convincing the liar that not lying would be in the best interest of society as a whole would be the best way to destroy the desire to lie, whether it is you or another.
Virtue, or Aristotelian, Ethics
Virtue ethics is something of a way station between ethical standards based on obligations and those based on results. The Internet Encyclopedia of Philosophy describes virtue ethics as “a broad term for theories that emphasize the role of character and virtue in moral philosophy rather than either doing one’s duty or acting in order to bring about good consequences.20” In Nicomachean Ethics, a work often attributed to Aristotle, the text does speak on truth and falsehood, saying the “man who loves truth, and is truthful where nothing is at stake, will still more be truthful where something is at stake; he will avoid falsehood as something base, seeing that he avoided it even for its own sake; and such a man is worthy of praise.21” However, the text goes on to discuss the use of truth, and how it should be understated to avoid appearing boastful. While stating that the quality of honesty is praiseworthy, the text primarily focuses on the use of both truth and lies in the form of boasting and self-deception. Still, there is no confusion about how lies are to be seen here, as “falsehood is in itself mean and culpable.22” The key difference that this standard seems to take is that the act of lying itself is a reflection of the character of the individual.
Because of the unique viewpoint of this standard, it is hard to say that anyone who would claim to primarily adhere to it would be prone to lying or willing to do so outside of extreme circumstances. Even in those circumstances, the would-be fibber would probably defer to another standard for justification of the lie, since there is no justification within virtue ethics itself. So, the only choice we have is to focus on the rationale for the lie rather than the underlying standard of the person should someone cite virtue ethics as a source.
Natural Law
Now, we move on to Natural Law. Aquinas, the key voice in this standard, has quite a bit to say on the topic of truth, so I've gleaned what I could and tried to select what I deemed to be keys of his work Summa Theologica to lay out how a follower of natural law would see lying. He says:
Since man is a social animal, one man naturally owes another whatever is necessary for the preservation of human society. Now it would be impossible for men to live together, unless they believed one another, as declaring the truth one to another. Hence the virtue of truth does, in a manner, regard something as being due.23
Simply put, the truth is something that we owe one another in order to make society function. Bok says as much as well in her book:
Imagine a society, no matter how ideal in other respects, where word and gesture could never be counted upon. Questions asked, answers given, information exchanged – all would be worthless. Were all statements randomly truthful or deceptive, action and choice would be undermined from the outset. There must be a minimal degree of trust in communication for language and action to be more than stabs in the dark. This is why some level of truthfulness has always been seen as essential to human society, no matter how deficient the observance of other moral principles.24
While utilitarian ethics would allow a law in certain situations as a means to the desired end, natural law is as concerned with the means as it is the end. Aquinas argues that all lies are sinful, although some are less sinful than others. He cites both Aristotle and Augustine in his discussion on lies, eventually stating that “it is not lawful to tell a lie in order to deliver another from any danger whatever.25” The argument is that laws are unlawful (in terms of natural law) because “words are naturally signs of intellectual acts,” and “it is unnatural and undue for anyone to signify by words something that is not in his mind.26” With that being said, all lies are against natural law, without exception.
Here you run into a problem not too different from that which was discussed above with the virtue ethical standard. The person who follows natural law should be opposed to lying regardless of what the lie is intended to accomplish. Therefore, any excuse you get from a person who may otherwise adhere to the ethical principles laid forth through natural law should be dealt with under whichever standard it most closely aligns to. However, since natural law is more concerned with what is owed to others as a part of the natural order of things, the lie will most likely fall under the utilitarian approach or the next one I will discuss.
Categorical Imperative
A standard based on reason, the fundamental law which leads one to the categorical imperative is that you should “act so that the maxim of thy will can always at the same time hold good as a principle of universal legislation27. Immanuel Kant wrote The Critique of Practical Reason, which gave articulates this ethical standard, and stated that it is pure reason which gives birth to that which man considers moral law28. The principal of this standard echoes the golden rule in some respects: do unto others as you would have them do unto you. We are right back to those words from a parent or grandmother and the old adage about a person treating others the way s/he wants to be treated.
Those who follow this standard are put in the position of critically thinking through each action and asking himself if everyone else did this, would that really be ok? For example, it's one thing for me to sneak a grape or two while walking through the produce section, but if every person who ever walked through the produce section did the same, there would likely not be any grapes to sell at that point. Therefore, I should not sneak any grapes since I wouldn't want everyone else doing the same thing. Where the utilitarian standard looks to the end result of the action and natural law claims that it is the order of things to behave a certain way, the categorical imperative is similar to Rand's Objectivism in that one can attain moral law through sheer logic.
In regards to lying, Kant stands with most of our previous standards. Lying is inherently against moral law “for it cannot hold as a universal law of nature that statements should be allowed to have the force of proof and yet to be purposely untrue.29” A little later, he goes on to say that what “we call good must be an object of desire in the judgement [sic] of every rational man, and evil an object of aversion in the eyes of everyone; therefore, in addition to sense, this judgement [sic] requires reason. So it is with truthfulness, as opposed to lying.30” The way that Kant sees it, truth is something that everyone desires, and because everyone wants it, it must be good and sought after.
The best way to deal with a liar in this category, for better or for worse, is to take them back to grade school. Your task is to remind them that they would not appreciate being lied to under these circumstances, and if we're still talking legal matters, there should be more weight behind that reminder. It is one thing to talk about hurt feelings or broken promises; it is quite another to talk about court judgments, jail time and the financial implications that lie may trigger. The big challenge in doing this is trying not to sound like the other person's mother or older sibling. Your client came to you for legal advice, not to be treated like a child and your fellow professional will probably not appreciate being talked at as though she was being scolded. The key is to remember respect and...well, treat them the way you'd want to be treated.
Religious Ethics
The specific tenants of religion guide those who look to higher power (or powers) as a source of moral and ethical law. By nature of the definition, the particulars of any one person's ethics can be as varied as the types of religion that exist. However, the great many of them do seem to be on one accord when it comes to the topic of truth and lies. Christianity is filled with passages of condemnation pointed towards those that lie and uphold those who tell the truth as examples to be followed31. Jesus, the cornerstone figure of the religion, refers to himself as Truth32. Both Judaism and Christianity share several common texts, but even outside of these, Judaism speaks of the importance of being honest. In the Talmud, it says that “[w]hen man appears before the Throne of Judgment, the first question he is asked is not, 'Have you believed in God,' or 'Have you prayed and performed ritual acts,' but 'Have you dealt honorably, faithfully in all your dealings with your fellowman?'33” The last of the Abrahamic religions is no different. The Qu'ran says that "truly Allah guides not one who transgresses and lies," and the importance of that guidance is not worth risking for a lie here and there34.
Even those spiritual beliefs that do not focus on one god, or instead focus on many, stress the importance of honesty when dealing with others. Hinduism teaches that “[i]t is always proper to speak the truth.35” Shinto, another pantheistic religion, takes what is proper and elevates it to what is in one's best interest. One saying is that
“[i]f you plot and connive to deceive men, you may fool them for a while, and profit thereby, but you will without fail be visited by divine punishment. To be utterly honest may have the appearance of inflexibility and self- righteousness, but in the end, such a person will receive the blessings of sun and moon. Follow honesty without fail.36”
The consequences of lying within the context of religious ethics can be seen as a bit more serious than that in most of the previous standards explored. Lying is typically in direct violation of the will of one's god or the divine order of things, which can lead to eternal consequences. Not only do those who follow religious ethics have to worry about whatever harm may be done to the other person, but they also have to be concerned about the spiritual implications of such an action, whether it is seen as an outright sin or as a notch on the wrong side of the stick.
Because of the perception of greater consequences to lying by many of those who follow religious ethics, any client or professional who may be leaning towards that path should be easily talked out of that decision. Even if lying would result in less suffering for the person, such as a defendant trying to lower liability, they should be reminded that this world is only temporary and that doing the right thing will ultimately result in riches of their own. It is more a matter of reminding the person of the path they claim to follow than to try and reason or rationalize the pros and cons of the particular lie.
What Did I (Not) Say? - Lies of omission and their role in the legal field
At the beginning of this paper, I established Bok's definition of lying as something that must be stated with intention to deceive. However, she agrees that silence can be deceptive.
When we undertake to deceive others intentionally, we communicate messages meant to mislead them, meant to make them believe what we ourselves do not believe. We can do so through gesture, through disguise, by means of action or inaction, even through silence37. (emphasis mine)
So let's say that lies of omission aren't technically “lies.” Common misconception that can be easily corrected with proper education. Still, the fact that they are not lies does not make them any more deceptive or any less harmful. Lying would be an active form of the violence while omission would be a passive. Harm is still done, it just a matter of how the harm is done at this point.
The problem with bringing up this concept within the legal frame is that many cases are about what information you can keep hidden and, ultimately, affect the outcome of the case. Now, I am certain that there are some practicing lawyers that carry out their dealings with the utmost candor, laying everything on the table and seeking justice in the midst of the mess. Well, as much as possible within the professional rules governing them. Several of the Model Rules of Professional Conduct carve out situations for lawyers where they must keep silent, even if she feels morally obligated to reveal such information38. Rule 1.6 states that a “lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted.39” Disclosing client information is only allowed:
to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(6) to comply with other law or a court order.40
While the rule may seem to cover all the important bases, that illusion only lasts until you encounter your first wrongful imprisonment story. If you haven't had the joy of encountering one yet, let me introduce (or reintroduce) you to Alton Logan41. He was charged and convicted of first degree murder of a man he did not kill. The two lawyers who knew that he was innocent refused to come forward with information regarding who did commit the murder because that man was their client. They felt they were bound to silence. One of the attorneys explained it this way:
[I]f you check with attorneys or ethics committees or you know anybody who knows the rules of conduct for attorneys, it’s very, very clear-it's not morally clear-but we're in a position to where we have to maintain client confidentiality, just as a priest would or a doctor would. It's just a requirement of the law. The system wouldn't work without it.42
The rules governing lawyers regarding what they can and cannot disclose has nothing to do with morality, but everything to do with making the system work. Even, apparently, if refusing to disclose ends up causing the system to fail. Recommendations have been made to amend both the ABA's and individual state's ethical codes to allow for disclosure in cases where someone may be or has been wrongfully convicted. At the very least, proposals have come before both ABA and New York's bar association, and both declined to include such an amendment. Logan served twenty-six years in prison for a crime he did not do because of a mandated requirement of silence.
Unfortunately, since it seems that the law is not going to change anytime soon in this area, practicing lawyers are faced with the very real question of what they would do in this situation. On one hand, you have your own personal ethical standards; on the other, you have those of the profession. While I will not pass any judgments or offer my own personal opinions on the route to take, this “what if” is one that every lawyer must consider. Lawyers are almost expected to withhold important information that may turn the tide for their client, so long as such action would not violate any evidentiary or professional rules. It is considered zealous advocacy to do everything in one's power to achieve your client's desired outcome. If that outcome is dishonest, then you are put in the difficult position of juggling personal and professional ethics. No one else can really make that decision for you.
These issues are not unique to the lawyer who is representing a client in the criminal arena. Since every lawyer is bound by the rules of ethics, they apply to all areas of the legal profession. Representing the wife in a divorce, you may receive information from her that could heavily tip the scales in the favor of the husband. If the bit of information is something simple, like she had sweets while they were supposed to be dieting, while that was dishonest on her part, it is hardly of material importance to the marriage as a whole (although it may undoubtedly be a sign of a deeper issue). However, if the information was about financial investments she'd had a brother make on her behalf or of an addiction that she intended to fund with the alimony, the area becomes much more grey. True, the wife is your client, and true, you should not professionally be concerned with what happens to the husband. However, if you are the sort who has trouble separating the personal and the professional when it comes to standards of conduct, the desire to reveal such information may be particularly strong.
Another key area where omissions run rampant is when dealing with negotiation and mediation. While the goal is to settle the case without having to go through the hassle (and cost) of court, the method used in either process is to be only as honest as necessary. Each side, regardless of the preexisting relationship, is interested in benefiting financially as much as possible, whether that means receiving a lot of money or paying out less. As such, there is no need for a lawyer to reveal information that could harm her client's interest. At least not from a professional perspective.
Reconciling Personal and Professional Ethics
When I started law school, as I learned about the various rights and case law that existed, I started to wonder just where my limits rested. What could I absolutely not do? Would I be willing to defend a person who confessed to doing the crime, yet refused to do the time? Could I bring myself to help my plaintiff receive an award at the expense of another person's livelihood?
The struggle to balance personal beliefs with professional obligations takes place within the minds and hearts of every person who enters the legal profession to one degree or another. While lying is a more obvious evil that one should avoid, no matter what the profession, it is a little harder to say the same about withholding vital information when it could mean that another person may suffer. This statement is not meant to say that in order for justice to be administered in any situation, the entire truth must come to light. In some cases, the entire truth is simply unattainable. The key questions about the connection between truth and the legal profession for the purposes of this paper is to what extent should a lawyer work to reveal what she knows to be truth.
How one deals with the connection between personal and professional will help each to answer that question in terms that she can live with. For some people, professional life stays at the office, and what happens there has no bearing on the personal beliefs one holds. Others strive to have all aspects of their lives to live in harmony. The former set of people will likely have fewer issues when dealing with the subject of lies and deceit. They aren't allowing their personal ethics to influence or guide them, so the rationale is that what they do at work is purely work. On the other end of the spectrum, however, you have those who may struggle some days with doing what they believe is right and what they know is an ethical obligation.
For better or for worse, this paper cannot give any clear idea or opinion on how a lawyer should conduct himself in these areas. Recognizing that we are all individuals also means recognizing the fact that what one believes is correct and proper could be in direct violation of another person's belief system. All it can do is all most pieces of literature can do, and that is to give each person something to think about in order to better himself as an individual and a professional.
Conclusion
Even if you know how to deal with the lies of another person, it is another matter entirely to employ those methods. Sometimes, the hardest medicine to take is from yourself. After reading selections from Lying and delving into the various rationales behind lying, it is hard to claim to be any more opposed to doing so than I was prior to this paper or even this semester. I do not think that the great problem with dealing with lying is admitting that it is wrong. Most of us are taught as much when we were children and the general disdain people demonstrate upon learning that some figure in authority has lied shows that the public could agree as well.
The truth of the matter is that lawyers have the potential to deal with various forms of deceit from any number of sources, including themselves. We may not be so naïve as to believe that the world is a completely honest place and that liars are a dying breed. We still may have to mentally and morally prepare ourselves for dealing with it within the context of our work environment. In an ideal world, our coworkers, clients and comrades would all be as dedicated to the pursuit of truth and justice as we may be. Until such an ideal becomes a reality, each of us who enters the legal profession must work out our own answers regarding how we are going to deal with the area of deceit and professional obligations should they ever be found at odds with our own personal belief systems. If nothing else, that choice will always be within our own hands.
1Bill Cosby, Himself. (20th Century Fox 1983)
2 Sissela Bok, Lying 13 Vintage 1999 (1978).
3Id. at 6
4Model Rules of Prof'l Conduct R 4.1(a) (1983).
5“perjury." Merriam-Webster's Dictionary of Law. Merriam-Webster, Inc. 17 Dec. 2010.
618 U.S.C. § 1621
7I preface this section with the fact that I am using great generalizations with each ethical standard discussed here. As mentioned above, very few people adhere to any standard completely or only adhere to one standard. The following section simply looks at some of the more prevalent standards, what they believe and how truth plays a role within them. Every person and situation must be dealt with on an individual level and allowances must be made for the personal flare that people like to put on their own systems of beliefs. This section, at its best, may serve as a crash course and primer with some ways to help the truth-conscious lawyer in dealing with lies and the liar.
8Ayn Rand Lexicon, Honesty, http://aynrandlexicon.com/lexicon/honesty.html (last visited December 17, 2010).
9Ayn Rand Lexicon, Introducing Objectivism, http://aynrandlexicon.com/ayn-rand-ideas/introducing-objectivism.html (last visited December 17, 2010).
10Ayn Rand Lexicon, Honesty, http://aynrandlexicon.com/lexicon/honesty.html (last visited December 17, 2010).
11I bring up this branch of Satanism here simply because, although labeled as a religion, they do not follow the tenants of any deity other than the self and those established by the Church of Satan, which primarily chose its name to represent the antithesis of Christianity and other mainstream religions.
12LaVey, Anton The Satanic Bible, http://www.spiritualsatanist.com/books/satanicbible.pdf (last visited December 17, 2010).
13Id.
14Mill, John Stuart, Utilitarianism, http://www.utilitarianism.com/mill1.htm (last visited December 17, 2010).
15Id.
16Id.
17Bok, supra Note 2 at 18.
18Mill, supra Note 14.
19Bok, supra Note 2 at 41.
20Internet Encyclopedia of Philosophy, Virtue Ethics, http://www.iep.utm.edu/virtue/ (last visited December 17, 2010)
21Internet Classics Archive, Nicomachean Ethics by Aristotle, http://classics.mit.edu/Aristotle/nicomachaen.4.iv.html (last visited December 17, 2010).
22Id.
23Christian Classics Etheral Library, Summa Theologica, http://www.ccel.org/ccel/aquinas/summa.SS_Q109_A3.html (last visited December 17, 2010).
24Bok, supra Note 2 at 18.
25Christian Classics Etheral Library, Summa Theologica, http://www.ccel.org/ccel/aquinas/summa.SS_Q110_A3.html (last visited December 17, 2010).
26Id.
27Immanuel Kant, The Critique of Practical Reason, http://philosophy.eserver.org/kant/critique-of-practical-reaso.txt (laws visited December 17, 2010).
28Id.
29Id.
30Id.
31A couple of verses demonstrating this include Proverbs 12:19 (The truthful lip shall be established forever,
But a lying tongue is but for a moment) and Revelations 21:8 (But the cowardly, unbelieving,abominable, murderers, sexually immoral, sorcerers, idolaters, and all liars shall have their part in the lake which burns with fire and brimstone, which is the second death)
32John 14:16
33Talmud, Shabbat 31a
34Surah 40:28
35Mahabaratah, Shanti Parva 329.13
36World Scripture, Honesty and Expediency, http://www.unification.net/ws/theme148.htm (last visited December 17, 2010).
37Bok, supra Note 2 at 13.
38While not every state has adopted these exact rules to govern lawyers in its state, most have adopted a set of rules that closely mirrors the MRPC. For the sake of simplicity, the MRPC will be used for the paper since they are the rules recommended by the American Bar Association and under which all practicing lawyers are required to test.
39Model Rules of Prof'l Conduct R 1.6(a) (1983).
40Model Rules of Prof'l Conduct R 1.6(b) (1983).
41“26-Year Secret Kept Innocent Man in Prison.” 60 Minutes .http://www.cbsnews.com/stories/2008/03/06/60minutes/main3914719.shtml
42Id.
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