Several reviews, including articles in the New York Times and Slate Magazine, note the re-publication of philosopher Harry Frankfurt’s essay "On Bullshit" as a stand-alone book. (Interestingly, the Times’s standards of decency prohibit them from using the word bullshit in print. I assume readers of a blog about lawyers have less delicate sensitivities.) According to Frankfurt, bullshit differs from lying because it is entirely unconcerned with the truth. A liar knows the truth and is trying to create a belief in another person at variance with the liar’s own belief. A bullshitter, by contrast, is completely indifferent to the truth. This makes bullshit systematically more dangerous than lies, because liars are at least concerned with perceiving the truth accurately so they can mislead others. The enterprise of bullshitting, characterized by its blithe disinterest in even investigating the truth, is thus more corrosive of respect for the truth than lying.
Reviewers have tended to focus on the implications of Frankfurt’s essay for public discourse, for example noting the Bush administration’s disdain for the "reality-based" community. But I predict the lie/bullshit distinction will start to get a lot of play in scholarship on legal ethics. Of course, there is a lively debate over whether lawyers lie, deceive, or simply put the state to its proof. As Steve Lubet puts it, trial lawyers don’t, can’t, and shouldn’t have to tell the whole truth. Interestingly, trial lawyers are quite concerned with the truth, and are not bullshitters in Frankfurt’s sense. They investigate the facts of a case painstakingly in order to construct a plausible narrative, or trial theory, that strikes the jury as true. There are fascinating questions about what it means for a story to "ring true" for a jury, particularly where there are multiple narratives consistent with different kinds of truth. For example, a story about corruption and racism in a police department may be true, but inconsistent with the truth of a defendant having actually committed a particular crime. But truth is always part of the analysis, so trial lawyers aren't bullshitters.
Although I first read Frankfurt’s essay in graduate school, as part of his excellent book, "The Importance of What We Care About," and have thought about the question of whether lawyers are liars, I haven’t really given any attention to the question of whether lawyers are bullshitters. The question isn't limited to trial lawyers, but can be asked of lawyers in negotiations, in their relationship with clients, etc. What do readers think?