In short, the lawyer needs to make sure the client knows what the lawyer knows: the lie will eventually be discovered. The client needs to confront this fact and agree to be truthful to the court. It is a rare client whose force of personality cannot be overcome by his or her lawyer’s carefully presented arguments, especially where the client is clearly wrong, and the client is committing a crime by refusing the lawyer’s advice.My problem with this concept is that I don't think that people who lie intentionally are going to be persuaded to become honest. (See an earlier article I wrote about this topic here. The Kaye, Scholer lawyers thought that their client, OPM--which was an acronym for "Other People's Money," always a bad sign for a client--was going to reform after being caught in outrageously dishonest acts. Kaye, Scholer's mistake in trusting the stubbornly dishonest client is an object lesson for all of us.)
Although it's possible that a lawyer's "force of personality" may help a client whose honesty is wavering to see the light, I think it's equally possible for a lawyer to persuade herself (wrongly) that she has won over the obstinately lying client. That lawyer may well find herself the product of a disciplinary action later.
The well-meaning and honest lawyer faces many pitfalls. (Alan Childress, Mike Frisch, and I are working on a professional responsibility textbook for Aspen based on the premise that honest lawyers can find themselves in all sorts of trouble even though they aren't hell-bent on lying, cheating, or stealing.) Persuading oneself that one's client is going to see the light based on the lawyer's moral suasion is one such pitfall.
8 comments:
When is the casebook coming out? I'm teaching legal ethics in the fall, and I'm supplementing the casebook with readings on cognitive bias and heuristics. Sounds like your approach is very similar to mine: what factors make good lawyers violate the rules? I don't think it's that they don't know the rules.
Hi, Jim (and I love your avatar--how'd you get that?)! We're beginning the drafting process this summer, and we're keeping our fingers crossed that we can do the draft at lightning speed, but we have a second summer if we need it. Thanks for the affirming comments about our approach! What book are you using now?
I'm using Martyn & Fox, Traversing the Ethical Minefield because it seems to lend itself well to the approach I want to use. I wrote up some notes about it a while ago. I've never taught ethics before, and I may not know what I'm getting myself into, but there you go.
I made my avatar at http://www.sp-studio.de/
What about ABA Model Rule 1.16?
Absolutely, Anonymous--that's a good place to look, along w/the state ethics rules (whichever one would apply to a particular situation).
Hello Nancy:
I was reading your blog and I found it to be interesting. Nancy, I have started a new job and I have been informed that I need to complete the cases I have and not to start new ones. I have told my current clients who many are upset that I am "abandoning" them after I explained I may not be able to complete their cases due to the time constraint with my new job. How do I best handle this situation?
Hi, Anonymous--if you're going to stop working on your clients' cases, you need to (1) seek permission to withdraw (if you're representing them in litigation), (2) determine whether any of your clients would experience undue prejudice by a too-quick termination and, if so, help them find alternate counsel, and (3) for the ones who wouldn't be unduly prejudiced by withdrawal, send them termination letters to let them know that you will no longer represent them. Hope that helps!
Absolutely, Anonymous--that's a good place to look, along w/the state ethics rules (whichever one would apply to a particular situation).
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