DIFFICULT MORAL QUESTIONS

Question 181: May lawyers lead clients to make possibly untruthful statements?

As a law student, I am confused by the rules about what a lawyer may and may not do when guiding a client in telling his or her story.

One of our professors proposed this case. During the winter, a growing number of people began using the block-long main corridor of a college as a shortcut from a metro station to a large office building. This extra traffic caused various costly problems, and so the administration persuaded the city council to enact an ordinance making it trespassing for anyone with no business with the college to cut through the corridor. Signs are duly posted, and the college temporarily hires extra guards to stop everyone who enters the building. A lawyer familiar with the situation, Mr. Lawry, is contacted by a woman, Ms. Doe, who tells him she was seriously injured in a bad fall in that corridor, and the college’s liability insurance carrier is offering her a ridiculously small settlement. Lawry says: “Before you go any further, let me explain the legal situation to you. On the one hand, trespassers are not in a good position to recover damages for accidents on private property. On the other hand, people on the premises for business reasons, even just to get some information about an event at the college, have a far better chance of recovering. I guess you were in that corridor for some business reason, weren’t you?”

Called on to comment, I said: “Surely a lawyer could not say that. It would be instructing the potential client to lie.” But the professor pointed out that, provided Lawry did not know that Doe was not in the corridor for a business reason, he was not proposing what he knew or even believed to be false; rather than instructing her to lie, he was merely guiding her in telling her story to her own advantage.

After class, some of us had a lively discussion. I argued that what Lawry said would be practically the same thing as telling Doe to lie. One of my classmates suggested that Lawry could have accomplished his purpose without inviting Doe to lie by saying simply: “Trespassers are not in a good position to recover damages for accidents on private property, but people on the premises for business reasons have a far better chance of recovering. What you were doing in the corridor could be vital to your case. Can you recall exactly why you happened to be there?” That still seemed to me tantamount to suggesting that Doe lie.

But another clever classmate came up with a way of putting matters that seemed acceptable to all of us: “Trespassers are not in a good position to recover damages for accidents on private property, and the college has signs up in that corridor warning that people just using it as a shortcut are trespassing. If you were not there for some business reason, at least to get information about some event at the college or something of the sort, I doubt that you have a case.”

Of course, there are many other situations in which a lawyer needs to guide a client in stating his or her case, and it would be interesting to know if there are any rules bearing on this matter.

Analysis:

This question calls for the derivation of a norm. Regardless of which of the three formulations the lawyer chooses, he either conditionally intends that the potential client lie in grave matter or unnecessarily tempts her to do so. If the client lies and thereby gains her objective, she is unlikely ever to repent. Leading another into such lying would be grave matter. It also is gravely wrong knowingly to subject another without good reason to significant temptation to commit a grave sin; and even unnecessarily risking leading someone to commit a grave sin that he or she is unlikely ever to repent is a most serious offense against love of neighbor. Therefore, lawyers should elicit their potential clients’ and witnesses’ full statements of facts before instructing them about the favorable and/or unfavorable legal implications of the facts.

The reply could be along the following lines:

Lawyers should help their clients use legal processes and other legitimate means to seek the benefits of just judgments or settlements based on the truth about their relationships with others and other relevant facts. Moreover, lying is wrong in itself, and lying under oath is always gravely wrong, since it adds the wrongness of irreverence toward God to lying’s intrinsic wrongness. Therefore, it should be obvious that there is a general norm admitting of absolutely no exceptions: A lawyer may never instruct or induce anyone to lie, or assist or approve his or her doing so, and any of these wrongs is the more grave if the lying would be under oath.

Beyond that, it would be a mistake even to suppose that one always may guide a client or potential client to tell all the truth that would be to his or her advantage. Even when telling a truth would be to one’s advantage, it sometimes may not be told because that would be unfairly disadvantageous to someone else. For instance, sometimes the duty to keep a secret requires that one suffer some harm or forgo some benefit.

It is an important part of a lawyer’s responsibility to guide clients to tell the truths that are to their advantage when and as appropriate. Suppose Ms. Doe, in the example, was in fact in the corridor to pick up an admissions packet for a neighbor who was considering applying to the college, and you were retained to represent her. In preparing her to testify, it would be appropriate to tell her that the reason for her being in the corridor is important to her case and she should make it clear in her testimony. More generally, in advising clients a lawyer often has occasion to guide them in distinguishing between truths appropriate for them to tell and others that they have no obligation to tell and that, in their own interests, are better left unstated.

Your professor was right that, in the example proposed, Mr. Lawry is not quite instructing Ms. Doe to lie. However, he is inviting her to lie. Lawry’s caution, “Before you go any further,” clearly warns Doe against telling a story disadvantageous to her—that is, disadvantageous unless Lawry subsequently helps her pursue a settlement by lying. He tells her that having been in the corridor on business would support her claim for damages while having been there as a trespasser would not; in the context, that is an invitation to assert that she was there on business, whether that is true or not. Likewise, “I guess you were in that corridor for some business reason, weren’t you?” puts in question form the proposition whose assertion, true or not, is recommended to Doe as advantageous. In guiding her in this way, Lawry does not unconditionally intend that she lie; after all, the assertion he suggests she make might be true. But he does conditionally intend that she lie, since he wishes her to make the advantageous statement—it will provide him with a case he is more likely to win—even if it happens to be false.

The first of the two reformulations suggested by your classmates was: “Trespassers are not in a good position to recover damages for accidents on private property, but people on the premises for business reasons have a far better chance of recovering. What you were doing in the corridor could be vital to your case. Can you recall exactly why you happened to be there?” This formulation does differ significantly from the one proposed in class, since a lawyer could use it without intending, even conditionally, that the potential client lie. However, since it was proposed as an alternative way of accomplishing “the same purpose,” that immoral conditional intent would remain and the formulation’s ambiguity would make no difference morally speaking. But even if it were used without any intention that the potential client lie, it would share the moral problem of the third formulation.

That third formulation, which seemed to your classmates and you entirely acceptable, was: “Trespassers are not in a good position to recover damages for accidents on private property, and the college has signs up in that corridor warning that people just using it as a shortcut are trespassing. If you were not there for some business reason, at least to get information about some event at the college or something of the sort, I doubt that you have a case.” Though this surely could be said by a lawyer without conditionally intending that the potential client lie, it is hard to see why any conscientious lawyer would deliberately use even a formulation along these lines.

If the intent were to invite the potential client to lie, it would be as wrong to use this formula as the original one. But even without wrongful intent, it would be inappropriate for instructing a potential client, such as Ms. Doe, before hearing her story. Such an instruction is unnecessary at this stage and might well tempt the potential client to lie. Because of the sum at stake, the prospective lie would be grave matter. Now, even taking an unnecessary risk of leading someone into sin is a sin of scandal, and such a sin is grave if the sin to which it leads is grave. Therefore, even without wrongful intent, using the final formulation would be gravely wrong. Then too, the initial lie in telling the story might later lead to perjury, and a lawyer who unnecessarily risks encouraging perjury betrays his or her responsibility as an officer of the court, whose function is to achieve justice based on truth. Furthermore, if the desired outcome were obtained by means of the lie, the client would be unlikely ever to repent and make restitution. One can do nothing worse to anyone than lead him or her into a grave sin unlikely to be repented. Therefore, the wrong of using even the final formulation would be a most serious violation of love of neighbor.

This discussion can be summed up in a general norm which, though overlooked by codes of legal ethics, is more important than most norms they include: A lawyer should not in any way suggest or indicate to a potential client that the assertion or denial of any statement might be to his or her advantage until the individual, without guidance as to what might be advantageous, makes his or her own statement of the facts relevant to the case. Lawyers should follow an analogous norm in interviewing potentially helpful witnesses.

A criminal defense lawyer is especially likely to be tempted to violate these norms when clients or potential clients are accused of serious crimes. But the violation remains gravely wrong in itself. Moreover, the accused either is guilty or innocent. If guilty, these norms should not be set aside to save him or her from just punishment. If innocent, following the norms will help establish the truth, which is the natural ally of the innocent, while violating them will risk making him or her seem guilty.

Note, too, that lawyers who violate the norm in preparing the testimony of witnesses other than their own clients are vulnerable to exposure. The confidentiality of the lawyer-client relationship, which courts generally protect, does not hold here, so that a cross-examiner usually can require witnesses to answer questions about the involvement of lawyers other than their own counsel in preparing their testimony.