Lawyers and Truth-Telling
Alschuler, Albert W., Harvard Journal of Law & Public Policy
Critics of the adversarial system's relationship with truth fall roughly into two groups. The first group, exemplified by John Langbein, seeks reform of our trial and pretrial procedures. These critics would give judges greater independent responsibility for truth-seeking. (1) The second group, exemplified by Judge Marvin Frankel, would give lawyers greater responsibility for truth-telling. (2) Although the approaches of these two groups can be combined, Langbein's approach seems more promising than Frankel's. High-minded, ethical pronouncements cannot transform adversarial tigers into public-spirited pussycats. (3) Both the market for legal services and the lawyer's sense of professional obligation press her not to reveal truths that will prove harmful to a client. (4)
The dilemma posed by a client who proposes to present false testimony illustrates the difficulties of assigning the primary responsibility for truth-telling to lawyers. Under both the Model Rules of Professional Conduct and the Model Code of Professional Responsibility, lawyers have a clear obligation not to present such testimony. (5) According to the commentary to these codes, the difficult questions arise when a client insists on testifying falsely and the lawyer is unable to withdraw. (6) Should the lawyer blow the whistle, refuse to call the client to the stand, permit the client to offer false testimony in narrative form, or something else? Much ink has been devoted to answering these questions, (7) but bar committees and legal academics seem to worry about them more than most trial lawyers do.
Many trial lawyers apparently have the same view as a public defender who spoke to one of my classes. When a student asked about the rule forbidding a lawyer to elicit false testimony from a client, this lawyer insisted that there was no such rule. "No," he stated, "there isn't any rule saying I can't put my client on the stand when I know he's lying. The only rule is that I can't put my client on the stand when I know that I know he's lying. I've had many cases in which I knew my client was lying, but I've never had a case in which I knew that I knew he was lying."
Some lawyers say they never know what the truth is--not even when a client has confessed his guilt. Even more reject the conventional wisdom that a lawyer should describe the attorney-client privilege to a client and press the client hard for the truth to avoid being surprised at trial. (8) These lawyers don't want their clients to level with them. Not knowing the truth makes it easier to avoid the ethical issue.
Even the lawyer's obligation not to abet perjury thus seems to be of limited efficacy, but I do not dismiss altogether Marvin Frankel's proposal to give lawyers more responsibility for truth-telling. At least some progress can be made by revising ethical codes. Many lawyers currently endorse the view of Lord Brougham:
An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and among them, to himself, is his first and only duty. (9)
These lawyers translate the duty of zealous representation to mean that everything not forbidden is required. If an action will benefit a client and is not forbidden by the rules of professional conduct or other legal rules, the lawyer must take that action even if it is misleading or deceptive. (10)
Professional codes should be revised to deprive lawyers of this unfortunate argument. The codes should state that a lawyer's duty of faithful representation does not justify his or her departure from ordinary norms of fair dealing. (11) In this respect, I would distinguish the duty of faithful representation from the duty to preserve a client's confidences, which does sometimes require a lawyer to depart from ordinary principles of fair dealing. …