Loosening Lawyer Lips

THE OPEN MIND
Host: Richard D. Heffner
Guest: Floyd Abrams, Esq.
Title: “Loosening Lawyers Lips”
VTR: 9/7/01

I’m Richard Heffner, your host on The Open Mind. And my guest today has joined me here many times over the years, in fact this is the 22nd time, and each time I realize all over again how much I respect and admire his wit, his wisdom, his erudition, his extraordinary ability to bring reason and a profound understanding of human psychology to bear on the legal problems we face in society and as individuals.

Indeed, I hope that some day he’ll let me turn the thousands of words we’ve exchanged here on the air into print, a book like my “Conversations With Elie Wiesel”, published now by Random House’s Schocken Press.

Yet my guest, my friend is a lawyer. A quite distinguished attorney and brilliant advocate. And that may complicate matters. Indeed, partner in the prestigious law firm of Cahill, Gordon and Reindel, Floyd Abrams is one of our nation’s premiere Constitutional experts. Internationally known and admired for the cases he tries and the appeals he argues for clients high and low.

And the complication, for me, at least, is related both to stories about his professions recent encounters with some troubling ethical issues. And to my own thinking and agonizing over what Mr. Abrams said to me here on The Open Mind a half dozen years ago and more when we discussed an article he had just written for the New York Times Sunday magazine entitled “Why Lawyers Lie”. Not, “do they lie?” but “why” they lie. Appropriate then that the American Bar Association recently considered updating some of its rules relating to professional ethics in order to give attorneys freedom that they hadn’t had before to tell the truth, to divulge their clients secrets if such revelations would prevent fraud, injury or death. The ABA rendered what might be called a mixed decision here, giving lawyers the right to disclose clients’ confidences to prevent “reasonably certain death, or a substantial bodily harm”.

Note that the opposition to loosening lawyers’ lips was and remains quite intense in the profession. And I want to ask Floyd Abrams what his stand is and how it relates to “why lawyers lie?” Floyd?

ABRAMS: I think what the Bar Association did was just about right. Uh, I think we have to remember what lawyers do. They, they speak for clients. They appear for clients. They’re not independent actors, even though lawyers act. But they are really the, the best embodiment of what their clients could say for themselves. And since clients do bad things sometimes, lawyers are defending bad things sometimes. Even bad people. I wouldn’t have it any other way. But I can’t think of a way to ensure that clients will speak to lawyers other than a rather general and rigidly enforced policy against requiring lawyers to reveal what clients tell them. We have to be able to promise and mean it, confidentiality. So to have an exception for bodily harm is one thing. I’m in favor of that. But I think we have to be sure that the rule remains, that the, the general rule remains what it’s been. If you come my office, you can tell me your secrets. You can tell me what you did wrong. You can tell me “the truth” and I’ll defend you. That’s what we do.

HEFFNER: And when it comes to fraud, because this was the other issue before the ABA …

ABRAMS: Well, yeah, one of the problems with fraud is that fraud, more than bodily injury is often a matter of opinion. You know, my fraud … or your fraud may be my, you know, sharp dealing … dealing around the edges. I don’t think we want lawyers to be in the business of passing judgment about whether their clients have committed fraud or not. That’s not our job. We’re not specially trained for that. Our training is to defend clients. To represent them. And so, if a client that arguably committed fraud comes in and says so, you really want us to go to the police. Who’s going to come and how are they going to be represented? And what are we going to do in the man, many cases where it’s not at all clear what fraud is and if, or if not, a client has committed fraud. So I think we have to pay the price, and it is a price, as a society of, of saying, “Look, when you go in a lawyer’s office you can say certain things, certain true things, hopefully, generally people tell the truth to their lawyer. Often, often I must say. Too often, not. But we encourage them to tell the truth, and they won’t and we can’t represent them well if we then become the sort of mini-police or extension of the FBI if we start hearing things that sound bad to us.

HEFFNER: Well, you know, John Sexton, the Dean of NYU Law School, who is now the President-designate of the University itself, of NYU, was here the other day and I couldn’t quite get him to talk about that. But he did talk about this noble, this noble profession, this noble class of beings … these “priests” of our society … the lawyers. And he didn’t mean just any lawyer. Of course, he meant the elite lawyers. But when you have a priestly class like this … isn’t there an obligation to society … what about that aspect of the profession?

ABRAMS: Well the obligation to society, I think, is fulfilled, uh, by representing clients. The role we play, the role our society asks us to play, uh, is to do the best job we can in advising, but also articulating for a client what the client could say if she or he could, could say it was well as we can. And this is … that’s the role we play. We’re not the justice givers. Judges are. Juries are. We’re the, the players on the stage who hopefully lead to justice being done.

HEFFNER: But when I go back to that piece that you wrote for The New York Times, I had the feeling that you were uneasy at that point about just exactly what you’re saying now.

ABRAMS: Well, I am uneasy about some of the, the game playing that lawyers …

HEFFNER: MmmHmmm.

ABRAMS: … engage in. I do think that we could be and probably should be stricter on the behavior of lawyers. Not their keeping confidences, but, but about, you know, the screamers and deceivers and, and the like. I mean I do think that a lawyer has an obligation, at one and the same time, a) primarily to his client, but b) also to the judicial system. And the way you’ll fulfill the second one is by performing your role in an appropriate way according to the rules. And a lot of lawyers have, you know, have gone a long way. I mean I do find troubling lawyers who make up, conjure up, uh, false charges against people who they’re examining, with the thought that, “well, the only way to get my client off, is to discredit this witness, so I have to do this or that.” Now that’s a difficult line. I mean we are obliged to represent clients zealously, if we don’t do our job we’ve violated our cannons that are supposed to guide us, if we don’t represent clients zealously. At the same time, you know, when a lawyer spends his time trying to discredit a witness, by, by suggesting something that the lawyers knows isn’t true … about the witness. Or saying something to get it in front of a jury and slip it by a judge … that you know isn’t so. That, that it seems to me goes across the line.

HEFFNER: But I’m a little puzzled. You say that the “lawyers knows isn’t so”. But just a few moments ago you were making the point that it’s not up to the lawyer, he is not a judge, he is not a jury, to make that judgment. Let the judge find out for himself … and so rule …

ABRAMS: Oh, oh, I mean that about my clients’ culpability, say. But, but if in the course of defending a client … I mean my work is civil work, but whether it were civil or criminal … in the course of defending a client, if you come to suggest a witness is lying because the witness has done this and that and that … and the witness hasn’t done those things … I think …

HEFFNER: But you really don’t know that, do you?

ABRAMS: Well, if you don’t …

HEFFNER: That’s the point you made.

ABRAMS: But if you … you have to lean in the direction of protecting your client. I mean that’s, that’s the beginning and the end. But there are some limitations. And when I, you know, read lawyers, or meet lawyers you know, who are, so proudly orating about how they, in effect, deceived juries … my reaction is, “Look, that’s part of the system, some times the wrong side will win”. And indeed, in my own cases, no cases may give me more pleasure than ones I think I should lose, and then I win, because I think I do a good job. I mean that’s just ego. But for the rest of us, the ones that didn’t try the case … you know, we should be rooting for the right side to win. We shouldn’t give lawyers credit, you know, who bound about the television networks and, and on various talk shows, saying “I’ve never lost a case.” You know, which usually means … a) it’s usually not true, but b) true or not , what they’re often saying, is “I have deceived juries.” Well, the answer to that is, “You know., we do what we have to do.” And we try to do it as well as we can. But I don’t think people ought to be all that proud of doing some of the things that routinely come with a law license.

HEFFNER: What does it mean, the phrase, “officer of the court”? I don’t mean the guy who carries the gun … who stands there …

ABRAMS: Yeah.

HEFFNER: … in uniform … with a badge.

ABRAMS: Well, you know, I got a license from New York State, they didn’t have to give it to me … I’m not entitled to it … we have a system whereby the state gives lawyers a monopoly on the right of going into court, and arguing cases. Apart from the fact that people can represent themselves. But, in terms of representing anyone else … only people licensed can do so.

HEFFNER: Then what do you owe the court?

ABRAMS: I think you owe the court candor. I think you owe the court the willingness to follow the rules. I think, uh, … you know, I think back to a baseball book I read when I was young, and they described young John McCraw of the New York Giants back in 1910, 1912 … running from first base to third base across the field without touching or going near second base because there was only one umpire then. Well, you know, you’re not supposed to do that. The sportswriters loved it. And the fans loved it …

HEFFNER: So do you and so do I [laughter].

ABRAMS: Well, it’s a wonderful story. But lawyers aren’t allowed to go from first to third without touching second. And when they do we should condemn them, we shouldn’t say, “Oh, God, what a great lawyer. He got away with it.” We should say, “Look, you can be a great lawyer and play by the rules”, and, uh, you know, I hope people will do it.

HEFFNER: Well, let’s, let’s go back to this business of the obligation to the client. I was reading something you wrote about that, maybe it was a transcript of one of our earlier discussions … and I thought to myself, “does that mean I should never have discussed on this program any of the topics that Floyd is involved with as an attorney?” And … what’s, what’s your answer to my question to myself?

ABRAMS: Oh, I think that you can discuss … we can discuss matters as to which I am an attorney. But, I think your viewers have to view with special caution what lawyers say, uh, about their on-going cases. Because they have a different obligation. What, what my New York Times article focused on most of all was that since the lawyers’ obligation is primarily to the client, playing within the rules, but primarily to the client … that when you put someone on television … let’s say in the middle of a case … and ask him “what do you think?”. Let’s say you’re asking me, “Floyd, what do you think about such and such?” And I think to myself …

HEFFNER: That damn fool …

ABRAMS: … he doesn’t get it. He doesn’t understand. I’m not Floyd Abrams any more, I’m not his friend anymore. I am a lawyer of somebody and my role is to defend that party. So, I may be right in what I’m saying, but I am no longer, uh, the person you thought I was because my, my obligation, my loyalty is to something, someone else then answering your question as I might, more candidly do so in another context.

HEFFNER: Well, you know, I don’t want to push this too far, because I’m likely to get a “no” from you the next time I invite you on the program …

ABRAMS: [Laughter]

HEFFNER: But think of the implications. I’m not talking about an on-going case … I know what you mean about the lawyers who emerge from the courthouse and when they’re asked by some foolish reporter, “what did you think?”, or “how do you react?”, presumably we’re listening to an expert, we’re listening to an advocate, not an expert. You’re … I introduce you as a … variously as the leading Constitutional or First Amendment attorney … I want to be able to discuss with you, and many times we have … the larger question of free speech and we’ve talked about violence in the media, uh, and I have a point of view … you don’t share that point of view … sometimes I think you do share the point of view … but you are still an attorney “at large” for CBS and The New York Times, etc., etc. Now what do we do? You smile.

ABRAMS: Well, [laughter] I smile because, you know, you have to decide before you invite me, uh, whether you think I’m going to say things that I believe or not. I’m careful in what I say about some things. Um, but I don’t say anything that I don’t believe. And I don’t have to restrict myself except, uh, insofar as it would inconsistent with something I’m saying or, or would likely come to say soon in court. I mean, for example, it would be hard for me to come on your program and say, “You know, there’s really no need for journalists to protect their sources. It’s just, you know, looking back on it, it doesn’t make any sense at all. People will talk anyway.” I couldn’t say that, even if I believed it. But I wouldn’t lie to you and it would be a lie if I said and took the other position, if I didn’t believe it. So you can be assured that what you see is, basically, what you get.

HEFFNER: Yes, but you’re also making the point that, that’s shaded a little. You may not … I’m sure you won’t say something that you don’t mean. But will you say something that you do mean, or will you restrain yourself from being forthcoming? Another smile.

ABRAMS: Well, yeah, because there are times, when, when I probably do have to restrain myself from being full forthcoming. I haven’t, I haven’t left the playing field yet. I can’t, wouldn’t, violate the sort of … what I view is at least as a sort of implicit trust I have with, with people that I’m still representing. And, and one has to bear that in mind. I mean one is entitled to discount, or at least to question what I say precisely because of that. That said, though, you know, I’m not just a spokesperson and I’m not … I don’t show up at an event like this simply to mouth, uh, the platitudes of my clients. And … but, but do I sometimes have to restrain myself from saying things? Sure I do. But I’m not the … it’s not just lawyers who have to do that. I mean we all, we all live in a real world out there. And, and a part of that is that there are limitations on what we chose to say about people and institutions to which we owe one or another sort of obligation.

HEFFNER: What is, what is that business again … “where you stand depends upon where you sit.”

ABRAMS: Well, there’s some of that. There’s some of that. But, uh, I mean that there’s another proposition which is that you can hold against someone an admission. And if I say certain things they would be taken to be, you know, admissions against “the cause” to which I’ve devoted a good part of my life. So I don’t say them. I say other things, I say things I mean. But, you know, I can’t be the person, at this point in my life, to, to whom someone comes for revelations about press misconduct.

HEFFNER: Well …

ABRAMS: Enough of it occurs anyway …

HEFFNER: [Laughter]

ABRAMS: … without my help in exposing it. But that’s, that’s just not a role I can play.

HEFFNER: You see, I miss so much … I admire, as I started off the program, I wasn’t kidding or anything else … umm, you’re the smartest man I know, and I want … it’s my want … I want to see you applying that Abrams brain and knowledge to some of the social problems that I think exist and yet I feel that as, in our competitive society, in our Darwinian society, in our capitalist society … you representing certain clients and being a major person in a major commercial law firm may not be saying everything that you would when the game is over … and I guess …

ABRAMS: That’s true. That’s true. I can’t. I don’t … say …

HEFFNER: Do you think academics are the only ones who can?

ABRAMS: Oh, but academics have other limitations. [Laughter]

HEFFNER: To be sure.

ABRAMS: And, I mean, are academics the only ones who can … I wish I were more comfortable with the notion that academics “do” simply give the truth and the whole truth as they know it. But I mean, I’ve found, in the legal area, for example, academics write law review articles for the purpose of persuading certain Supreme Court Justices. They shape the article that way. Is that ignoble? No. But is it, is it really straight in the sense that … are they really saying what they thing, or are they really trying to persuade … they’re often writing for the purpose of persuading. And, and academics become often associated with one or another view of an event or person, or a school of thought, uh, and I fear are too often “cabined”, self-cabined as it were in that respect. But they could … and often … look to be fair … they often do, you know, come right out and say whatever they think. And, and I think that’s terrific. And there are areas in which you and I have spoken … today on this program I have no vested interest in lawyer confidentiality. I mean … I, I could go on with my life if the law were changed to allow, in response to your very first question … a lawyer to reveal client fraud. I don’t see client fraud … that’s not what I do for a living anyway. You know, we could survive as a society like that. But in any event what I think is precisely what I’m saying about that. The only areas that you and I, I think have any difficulty on with respect to this subject is areas as to which I’m an active participant in a, in an on-going legal and social conflict and, and in that area there are some limits on what I can say.

HEFFNER: I gather, too, Floyd, and we just have a couple of minutes left … in terms of what you’ve said, that you really do feel that the law itself could not survive, or the law in America could not survive the, the reverse of what we have where there is no sense … when a client comes into an attorney’s office that there is some confidentiality.

ABRAMS: Look, we have lawyers abroad in circumstances in which they don’t have the same “rights”, as it were … powers even, to shut up, that lawyers have here. You know, and they have tolerable legal systems. But in this respect I think we have a terrific, probably the best legal system because we assure clients genuine independence and loyalty on the part of their lawyers. And that, that is a great thing to offer and it is a great societal benefit that, that our country has.

HEFFNER: In a minute … in those countries where attorneys do not have that, what’s the down side. What happens that negative?

ABRAMS: Well, they become either instrumentalities of the state, uh, as in all totalitarian countries; or so imbued with a sense that they’re part of the Court, that it’s the lawyers and the judges who are really, you know, the important figures here … as if clients don’t matter.

HEFFNER: In France?

ABRAMS: … As if … yeah, there’s a lot of that in France. There’s some of it in England. I mean I don’t think that there is any place where, where lawyers are taught to, and do have more of a sense of, of rigorous loyalty to their clients than, than in this country. And I think that that is, uh, a major protection that our society, not just our clients have. And, and we should be pleased with it.

HEFFNER: Floyd Abrams, thank you so much for joining me again on The Open Mind. I hope we go on and on and on.

ABRAMS: I hope so.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send four dollars in check or money order to: The Open Mind, P. O. Box 7977, F.D.R. Station, New York, New York 10150

Meanwhile, as an old friend used to say, “Good night and good luck”.

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.