Peter Henning on "Lawyers, Truth, and Honesty"

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I recently had an article published in the Notre Dame Journal of Law, Ethics & Public Policy on the issue of lawyers and honesty. The title is Lawyer, Truth, and Honesty in Representing Clients (20 Notre Dame J. L. Ethics & Pub. Pol'y 209 (2006)), and it address the issue of how attorneys can balance the requirements for representing their clients, which includes keeping matters secret and not revealing all relevant information, with the demand of the judicial system that trials and other forms of fact-finding constitute a "search for the truth." This is certainly not a new topic, and reflects the current criticism of lawyers as being people who try to keep the "truth" from emerging and preventing justice from being achieved. The professional responsibility rules provide some very broad outlines for how lawyers are to be honest, and I try to look at situations in which the requirement of honesty should be understood as applying to the lawyer's conduct.

The article is really an itch I've been meaning to scratch since I first started teaching Professional Responsibility in 1997 and dealt with a Michigan State Bar ethics opinion, Informal Ethics Op. CI-1164. In that opinion, a defense lawyer learned from his client that the client had attacked and robbed a victim, rendering him unconscious. The victim reported the crime to the police, and the client was arrested and charged. At a preliminary hearing, the victim, relying on a police report, gave the time of the crime as occurring about an hour later than it actually took place. Well, it turns out that the client had a terrific alibi for the time given by the victim at the hearing because he was with friends at that later time, and the defense lawyer asked the State Bar whether he could call alibi witnesses to testify at the client's trial. The Michigan State Bar said that, not only could the lawyer call the witnesses, he had an ethical obligation to do so, based on the determination that one "cannot suborn the truth" by calling witnesses who will testify truthfully. Yet, the witnesses would help support an alibi defense for a guilty defendant, and the lawyer would use that evidence to have the jury draw a false inference about the client's role in the commission of the crime. Can we really say that this is the "truth" when it is not?

Having let this issue develop (or fester) for the past few years, I used a portion of a sabbatical to write the article to look at whether there is a difference between truth and honesty. My argument, in a nutshell, is that lawyers have an obligation to be honest, but do not have one to ensure that the truth be revealed or vindicated. Therefore, the criticism of attorneys that they thwart the truth is wrong because it misapprehends the lawyers responsibilities. What is an "honest" lawyer? I offer the following description:

An honest lawyer is one who can be trusted. For the purposes of analyzing the rules that govern a lawyer's conduct, I define honesty to mean that an attorney's expressions and conduct are both accurate and authentic. An accurate statement is one that is truthful and does not intentionally deceive or mislead another person. Accuracy deals with the problem of the technically true but misleading statement or failure to disclose information that the listener would consider important. A deceptive statement would be inaccurate and therefore dishonest. At the same time, a lawyer's statements will be accurate even if they do not fully disclose the truth about a situation. The attorney-client privilege, for example, may restrict what a lawyer can state to third parties, and accuracy requires that the lawyer not mislead while he also is maintaining the confidences protected by the rules of confidentiality. An authentic expression is one that comprehends fairly the lawyer's (and in certain circumstances the client's) intentions.

Even if the lawyer can argue that statements were accurate in the terms described above, the lawyer has a further obligation to ensure that the representation of the client is fair both to the client and to others, including courts and opponents. Not all expressions are factual, or at least their accuracy cannot be easily measured, so that a requirement of authenticity in the lawyer's representation covers a broader array of conduct than just assertions that can be checked for their accuracy.

The article looks at the interaction between truth and honesty in a variety of contexts, both criminal and civil, to see how the professional rules operate. For the Michigan State Bar opinion, I conclude, not very easily, that the lawyer was dishonest in calling the witnesses to testify. I guess I've scratched the itch, although I'm not sure whether I got the right answer, or whether there even is one.

If the readers of your excellent blog are interested in the article, it is available on SSRN here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=905317

. I'm also happy to send along a reprint if someone prefers that medium. My e-mail is peter.henning@wayne.edu. I also welcome any comments or criticisms people may have.

Thanks for the chance to expound on the Legal Ethics Forum. The issues you discuss here are among the most interesting in the practice of law, and I enjoy the presentations here greatly. Thanks.

Peter Henning

Comments

[John Steele]

Peter,

That opinion from Michigan has always been interesting to me. These comments pertain only to criminal matters. (1) I'm OK with the notion that you can use true facts to portray "false cases." That is, to use truthful evidence to create reasonable doubt defenses. (2) I'm OK with the notion that if the prosecutor puts in false evidence the defense can use it to create reasonable doubt defenses. (3) I'm OK with cross-examining the truthful witness in order to construct reasonable doubt defenses. (4) I'm OK with the notion that you can't put on a lying witness (client or otherwise) to create a reasonable doubt defense (excepting, of course, "narrative technique" states).

But the notion of the defense lawyer drawing out false evidence, that is false because of what the lawyer knows was the defendant's crime, is problematic, isn't it?

For example, take a white collar criminal who's done some financial fraud. If the defense lawyer knows that certain books have been cooked by the defendant, can the defense lawyer introduce those (false) books to create a reasonable doubt scenario? Does the result change if the prosecution introduces those (false) books first?

I realize that the Michigan scenario, it seems that the defense lawyer didn't need to present the false time testimony, so my questions aren't germane to that fact pattern.

[Peter Henning]

John,

Interesting questions, and as always tough to answer. One thing I've wondered about in the context of the criminal defense attorney cross-examination of the "truthful" government witness is how often the lawyer actually succeeds in making the person look untruthful, and whether it is really more a matter of pecking away at the story in the hope that the jury might not find the person credible. I have my doubts whether a lawyer can make a person look to be completely wrong, or a liar, when the person is telling what he/she believes to be the truth, or accurately recalling details. So to the extent the criminal defense lawyer can try to raise a reasonable doubt, it will not be based solely on one witness unless that witness truly is mistaken (or a liar).

On Question #2, and the financial fraud with cooked books scenario, I would conclude that the lawyer could not rely on the false entries if (1) the lawyer knows they are false and (2) the government has presented them as correct. I assume in this situation the government does not know they are false and the defense lawyer wants to argue that they are in fact correct and show the client is not guilty. If the government is claiming the numbers are false, and the lawyer knows they are false, I don't think the lawyer can argue that they are correct. Of course, there is always the issue of "lies, damned lies, and statistics" so that whether a number is truly "false" can be open to question, particularly under the accounting rules.

The WorldCom prosecution did involve "inflated" numbers and putting them in the wrong category, which is probably as close as you can get to having cooked books. Ebbers admitted that there was a fraud at the company, but said he was unaware of it, the common intent defense in a white collar crime case. The Michigan case involved an alibi, which is more likely to involve false evidence or testimony. I have never heard of that defense in an economic crime case.

Peter H