Thursday, July 26, 2012
Look at How Your Nose Grows
Lies. They are the bane of our existence here in the Trenches. There are so many different types of lies: the ones of commission and omission, the inadvertent and the purposeful, the little white ones and the big black ones. Most people lie for gain, and we can interpret gain many different ways. Sometimes gain is financial, but most times it's emotional. No matter the type or the reason, a lie is a lie, and it's a problem for us here in the Trenches. Our rules of ethics prohibit us from either knowingly allowing a client to lie to the court, or failing to correct a material misrepresentation of fact that we know or reasonably believe has occurred on the witness stand. There's a fine line between what is OK and what is not, between what is a violation of our professional ethics and what is not. It all goes back to my old saying that clients come and go, but our professional reputations and our duty to uphold the integrity of the legal process are forever. It's one thing if a client lies and we don't know the truth. It is quite another if we do. Here in the Trenches, if we know what the client testifies is a lie, we have to take remedial steps. We have to counsel the client to tell the truth, and barring that, we have an affirmative duty to inform the court, and probably to withdraw from representation. (Note that the duty is somewhat different in a criminal case, and I'm not discussing that here). It's an awful position for both the attorney and the client. Does a lie on the witness stand create a tension for the attorney by having to choose between attorney-client privilege (in other words "you") and candor toward the court? Absolutely, but candor toward the court wins. Don't force us to make that choice. Here in the Trenches.