Why lawyers Lie

THE OPEN MIND
Host: Richard 0. Heffner
Guest: Floyd Abrams
Title: Why Lawyers Lie
VTR: 1/13/95

I’m Richard Heffner, your host on The Open Mind. And I want to introduce today’s program by quoting just a sentence from what my distinguished constitutional-lawyer guest wrote in The New York Times Sunday Magazine a few months ago. Namely, that, “It is time to ask whether it really leads to justice to have a system in which lawyers spend far more time avoiding truth than finding it.”

As a partner in the prestigious law firm of Cahill, Gordon & Reindel, distinguished attorney, brilliant advocate, Floyd Abrams tries cases and argues appeals in constitutional law. Yet, I’ve known Mr. Abrams a long, long time, and have never before known him to be quite so exercised over what lawyers in America actually do. He writes, of course, that, “Lawyers are not asked to do justice.” And the title of his Times Magazine article is: “Why Lawyers Lie.”

So that I would like to ask my guest what in the world has ticked him off so. Floyd?

ABRAMS: I think it was seeing a lot of defense lawyers paraded on television commenting on the O.J. Simpson case, and expressing their sorrow and unhappiness at the fact that O.J. Simpson had agreed to be interviewed by the police. And my reaction was: I think its fine that he was interviewed by the police, I think, so long as he knew what he was doing, at least in general terms, it’s good for the public. It’s a good way to get truth if someone’s willing to talk to the police. And they were all over television and all over Court TV talking about how awful it was and how it would limit, constrain his lawyer and the defense. And my reaction was: Sure, it will constrain the lawyer in his defense, because if he testifies he can’t say things too inconsistent with what he told the police. Or, if he did say things inconsistent with what he told the police, he’d get in trouble for it, or he’d have to explain it. And all that was good, too, I thought.

And so I thought I would write something saying, look, defense lawyers do their thing, and you, the public, you ought to understand what their thing is. It’s not a bad thing; it’s an important thing. But their role is to get their clients off. Their assigned task is to do all they can within the rules to get their clients acquitted. And that’s true of all lawyers, in fact; not just defense lawyers. But the thrust of my piece was saying, look, don’t trust lawyers when lawyers come and tell you what they think or believe about their cases. I can’t believe it when journalists ask lawyers – through the years they’ve done it — you know, “What do you think about such-and-such?” About an ongoing case. When the lawyer’s not allowed to think at all. When the lawyer’s a spokesperson for the client, the representative of the client. And it’s always irritating to me when journalists have asked lawyers as if they were independent agents, “What do you think? How do you feel? What do you believe about such-and-such in some case that you’re doing?” We’re the last person, I think, that you could expect a really straight answer from.

HEFFNER: Would you be shocked if I were to say that most civilians, non-lawyers, who read that piece, were shocked by that basic underlying assumption?

ABRAMS: No, I guess I wouldn’t be shocked. But I think it just shows how little public knowledge, if you will, there is about what lawyers do. I didn’t make up the title. The one thing I didn’t write was “Why Lawyers Lie.”

HEFFNER: I like the title.

ABRAMS: Yeah. And I didn’t mind the title, and it got a lot of people to read it. What I was really writing about was what lawyers do, and what lawyers do who play within the rules; not who break the rules. But what lawyers are asked to do by our society. And what they are asked to do is to represent clients. Indeed, I am very critical — not in this article, but personally — very critical of lawyers who lose sight of that. I mean, any lawyer, you know, who you see on television or who you read somewhere who is saying something which is sort of inconsistent, sounds sort of inconsistent with his client’s interest, is a disgrace in my view, absolute disgrace. But what comes with that is that… I tell a story, for example: When I was asked, after I did an argument in the U.S. Supreme Court against capital punishment in a particular case. And a journalist called me from this small town in Mississippi where my client had been accused and convicted and sentenced to death, and asked me, “Do you think he really did it? I know that the case was just about whether he should be executed. But what do you think, Mr. Abrams? Do you think he did it?” And I paused for a second. And then I said to myself, “What am I pausing for? I have no rights here. I have no independent status here. He’s asking me what do I think, but I am his lawyer. And the answer, therefore, to ‘What do I think?’ is his answer, which is, ‘He didn’t do it.”

HEFFNER: Yeah, but you know, when I read that in this piece, and it went down further, “I did what I think a lawyer was supposed to do, whether my client was guilty or not, whether I suspected he was guilty or not, I was obliged to defend them. And then you write, “But you are not obliged to believe me when I do so.” And I wrote next to it, “But Floyd, When do I stop believing you?”

ABRAMS: I think that you ought to take me and the rest of the bar on a different level of independent truth-telling when we represent clients, and when we are, so it seems at least, speaking for ourselves. But that when we are representing a client, we have an obligation to the client which transcends the obligation to be some sort of independent observer. That doesn’t mean that we’re supposed to Pie or deceive; but it does mean – for sure it means – we can’t say anything against the client’s interests. And I would go farther and say that what it really winds up meaning is that we are speaking for the client, we’re doing the best we can to present the best light on the client’s behavior. And so there’s nothing wrong with the journalistic question that was asked to me, although it irritates me sometimes that journalists think that they would get really straight answers in response to questions like that. But a lawyer… Suppose I had said, in response to the question “Do you think he really did it?” suppose I had said, “I don’t know. I mean, I just, I’m pro bono counsel. I was just retained to do this appeal in the Supreme Court on this very narrow capital punishment issue. I mean, don’t connect me with him. You know, I mean, I’m a high-class lawyer.” What an awful, awful thing it would be to sound anything like that, whatever the words were, if the music of what I was saying was, you know, “Don’t connect me with him; I’m just a lawyer,” I think it would be terrible.

Now, that’s entirely different than in England, say, and lots of other countries where the distinction between lawyer and client is much, much greater, and in which lawyers don’t play what we all are more and more playing which is sort of a P.R. role, as well as an in-court role. And one of the things I think I owe my clients is to do whatever I can do to protect their reputation as well as whatever is involved in the judicial proceeding that I’m representing them in. And trying to protect their reputation means doing it in, and more and more now, out of court.

HEFFNER: Well, you may remember my wife and I were down at the Supreme Court watching you in that case in your presentation. I knew better than to ask you. But I don’t know why I knew better. I guess I just didn’t want to hear your answer. But you’re telling me now that, no matter what your answer would be, what you gave the journalist. Are you saying, Floyd Abrams, that there is no necessary, positive, real connection between the truth and the quest for justice in our courts?

ABRAMS: I think there is a positive connection. Certainly when the system works at its best there’s a positive connection. But we have to understand what role we ask lawyers to play in the truth-finding process. At best, lawyers are part of the process of truth-finding. And what they’re asked to do is to be representatives of, spokesmen for, their clients; not truth-finders. I mean, they are asked to do all that the client could do if the client could do it himself or herself; not to parade in front of the judge and say, you know, “I found out, Judge,” or the public. Even worse, the public, “I found out what the real truth is here.”

HEFFNER: Now, what the client can do is lie. Can the lawyer?

ABRAMS: Well, the way the rules work, the lawyer is not supposed to, quote, ‘lie,’ unquote, or knowingly give the court lying testimony. That’s a very delicate area. The reason it’s delicate is that, on the one hand, the client’s entitled to representation, and at the same time, the lawyer is not supposed to be the one passing judgment. That’s the judge, that’s the jury; it’s not my role as a lawyer to pass judgment on who is right or who’s wrong. But if the client says to you, say, in a criminal case, you know, “I shot the man,” if the client says that, you’re not allowed to put him on the stand and say, “I didn’t shoot the man.” And that’s what leads to, you remember in “Anatomy of a Murder” what the author there called “the lecture]’ And we all do it in one way or another. Where we all say to clients, in civil as well as criminal cases, in substance, “Let me tell you what the law is before you tell me what the facts are.” It’s not right for you, I think to myself, as my client, its not right for you to lose out on some chance you may have because you’re my client.

HEFFNER: Floyd, may I ask you a question, not “Was he guilty or not.” Would you have it otherwise?

ABRAMS: I don’t know. Sometimes I have to say I’m tempted by some of the foreign systems. I worry about the adversary system sometimes. People say, almost by rote, that cross-examination is the best way to get truth. I don’t know. I don’t know if that’s true. It’s a great way to challenge lies, that’s true. But if you were starting all over, if you were saying, “What sort of legal system shall we put in place…”

HEFFNER: That is what I’m asking you.

ABRAMS: Right. “…in this country?” I’m not sure I’d have juries in all the cases that we do. I think I probably wouldn’t. I think I’d have much stricter limits on lawyer behavior, misbehavior, by judges in court. And I think I would try to impose — and maybe this is a cultural impossibility – more of a burden on lawyers to be representatives of the court at the same time as they are instruments of their clients.

HEFFNER: But, you see, that’s what puzzles me. I always thought that taking the oath made a lawyer an officer of the court. Not in some Never-never land, but now and here.

ABRAMS: The question is: What does it mean? What does it mean to be an officer of the court? At least it means you’re supposed to play by the rules of the court. Okay. What else does it mean? It does not mean that if you have a client that you consider in a criminal case guilty in all likelihood, or in a civil case, liable in all likelihood, it does not mean that you are free, or even permitted to voice those feelings, those conclusions. Far from it. The opposite. The lawyer is obliged, zealously, to represent his or her client. And generally I think that’s a good idea. It’s good that a client has one person to go to who is that person’s champion. And yet, sometimes I ask myself, and in the article I certainly raise the question: Does this all make a sort of sense? Or is the, at the end of the day, where we wind up, is that lawyers are spending so much time playing by these rules that they’re avoiding truth all the time? Not just not saying, “My client is guilty.” Of course you can’t do that. But literally, purposefully avoiding truth. And, you know, in a society where who your lawyer is really does have an impact on how the system of justice works, and where better lawyers really do matter, in my view, you can have a lot of injustice. And I think you do.

HEFFNER: You know, I remember in the summer after this program first went on the air in 1956, had to take it, in an aborted form, up to Boston. We did alternate weeks up there. And Paul Freund was my guest. And I gave the program in those alternate weeks the title “Search for Truth.” And he said, “Mr. Heffner, I know you always wanted to be a lawyer. And I think you rather naively think that the law is a search for truth. It’s not.” And I guess I find it very difficult to incorporate that into my thinking.

ABRAMS: I’d be a little more, a little Jess cynical than Professor Freund on that. The law, at its best, is a search for truth. Lawyers don’t search for truth.

HEFFNER: Oh, now, wait a minute, Floyd. You seem to be saying that our system of the law condones and even commands at times untruthfulness.

ABRAMS: That’s true. Look, if your client is lying, let’s say that the client hasn’t told you, you know, “I shot the man,” but you really, you know it in the way human beings know things. But it’s not provable in that sense. So, what is your role, say, as a defense lawyer? Your role is to represent the person. The person is entitled to a lawyer. If you are his lawyer, your job is – How shall one phrase it? — at the end of the day, to support that lack of truth-telling, to be his mouthpiece, if you will. Now, I think that’s one of the reasons why a lot of defense lawyers get very depressed. They represent a lot of guilty people, and are saying a lot of things that turn out not to be true.

HEFFNER: You mean they represent a lot of people who did what they’re accused of doing.

ABRAMS: Exactly.

HEFFNER: But who they make not guilty, or at least not…

ABRAMS: That’s what we ask them to do.

HEFFNER: Now, you know, the question that occurs to me is: Where is this written? Are you talking about what the law in America has become? Or are you talking about something to which… And you seem to be saying there is something that says this is what the lawyer is supposed to do.

ABRAMS: Well, there are canons of ethics which bind lawyers, and they have always talked in terms of zealous representation of clients. I do think that lawyers are more and more being pulled or purposefully moved towards roles outside the courtroom, as I say, of being, you know, spokespeople for clients as well as in court. I do think that lawyers more and more are becoming associated with their clients, associated sort of on purpose by themselves, not just by the happenstance that they happen to represent someone who’s accused, jet’s say, of some heinous crime. So, you know, I think we are moving in a direction of what I must say is less professionalism, and more a connection, an association, and identification by lawyers with their clients in ways that are sometimes bad for society.

HEFFNER: But you see, when I read your piece, ‘Why Lawyers Lie, not your title, I couldn’t help but wonder whether you weren’t reflecting, as I think you just indicated you are, a changing sense, a self-fulfilling prophecy on the part of lawyers who want more out of life, and who are doing those things that provide more out of life for them. We’re not talking just about what professionalism requires. In fact, it seems to me that, though you begin by saying, “To be a true professional, a lawyer must do so-and-so,” you seem now to be suggesting that perhaps what lawyers do today is not, in truth, professional in terms of more ancient definitions.

ABRAMS: I think that’s true. Yes. Yes. And where my difficulty comes in answering in a meaningful way the question you asked me earlier, and a question I certainly asked myself while I was writing it, and a question I was asked by the chief justice of a neighboring state of ours, which is: “What do you think we should do about this? I mean, what would you do if you could refashion our system?” I mean, our system has a lot to be said for it. And the notion, as I say, of a champion going to joust for an unpopular defendant is not just a romantic one and a very appealing one, but often a true one. And yet, and yet, I can’t help but say to myself, as I look around at our, as I look around how lawyers behave and what it is lawyers do, that we ask lawyers, or we encourage lawyers to behave in ways that we would find absolutely outrageous for anyone else in our society. Why do people dislike lawyers so much? One of the reasons – there are others – one of the reasons is that lawyers say so many things that aren’t true, because they are representing clients who say so many things that aren’t true.

Would I have it any other way than to have the lawyer be the spokesperson, the advocate? I don’t, you know, I guess not. I certainly haven’t thought of any way to do it. I think to myself sometimes, you know, ‘What about the French system where they have a magistrate appointed, and the magistrate goes out and finds truth?” Well, you know, I’m not sure I would trust the magistrate either. And maybe our system is the best we can do. But I don’t really think that it’s the best we can do.

HEFFNER: Isn’t this, to some considerable extent, a function of what has been identified, our friend Alan Derschowitz will frequently talk about the importance of using the press, the importance of convincing the public. There is a court of public opinion that you want to work over. So that when you say the lawyer is to defend his client and to be enthusiastic in his client’s defense, isn’t this the matter of in court and out of court, and aren’t cases tried so much now in the press and out of court that you do have more and more of this phenomenon of an attorney being asked whether his client is guilty, not in the courtroom, but out? And that’s where this lying takes place.

ABRAMS: Well, it takes place in both places. I think you’re right that we are certainly moving in our celebrity-driven society and information-rich or poor society to a place where more and more lawyers are playing a role out of court as empresarios that they never used to play, generally didn’t play. In fact, it used to be against the rules. Now, because of a variety of things, including some First Amendment rulings, lawyers are playing more and more of a role. But you know, at the end of the day… I don’t think that’s so much the problem. We see the problem now when lawyers are interviewed, let’s say, on the street, commenting on how wonderful John Gotti is to children, or things like that. We see it in a way we wouldn’t have seen it some years ago. But it’s always been there. And I think it’s a good thing, at least, for the public to understand the role played by, the social role, often good, but sometimes disturbing, played by lawyers, and to ask itself, “Is this the system we want? Do we want lawyers to have less free rein? Do we want to constrain them more? Do we want to say, ‘You gotta think of something else more than the interest of your clients and playing by the rules to accomplish the interests of your client’?”

HEFFNER: Okay. Then just the simple answer to that simple question that you’ve just asked. Do you want to say that you have to play by something more than the rule that you represent your client?

ABRAMS: By the rule that you represent your client, and that you play by whatever the rules are in representing your client.

HEFFNER: Right. Right.

ABRAMS: Yeah, I would like to see us move in the direction of requiring of lawyers, or at least asking of lawyers a higher sense of dedication to public interests at the same time that they’re representing their client’s interest. And it’s very easy to say that, and it’s very hard to do that.

HEFFNER: Where, who can do that? Where can that come from, that request? Effectively.

ABRAMS: First, of all places, first, public opinion. And then the bar, the Bar Associations, and the like. But first there has to be some sort of shared sense that something in our system has gone awry.

HEFFNER: Floyd, you know that we share with all the members of the public the sense that something is wrong.

ABRAMS: Yes, but I don’t know if the public shares with us the sense of what it is that’s gone wrong. I mean, a lot of what the public doesn’t like is good stuff. And a lot of what gets the public angry is nothing more or less than, you know, John Gotti has a lawyer at all. Or, for a lot of people, how can O.J. Simpson have all these lawyers. You know, we have to start with the idea people are entitled to lawyers, they should have lawyers, lawyers should try to help them, should try to get them off as beet they can within the rules. All those things are true. The added element that you and I are talking about now is: Is there something more that we as a society should ask of lawyers at the same time that they’re doing that? Some other place to look for guidance and direction? But that’s the hard thing to do, and I think that’s the direction we have to move in.

HEFFNER: And obviously, Floyd, it has to come from you and your fellow leaders at the bar. And this is the point at which I’ve made my point, and I say we have no more time.

Thanks for joining me today, Floyd Abrams.

And thanks too, to you in the audience. I hope you join us again next time. And if you’d like to share your thoughts about our program today, please write: The Open Mind, P.O. Box 7977, FOR Station, New York, NY 10150. For transcripts, send $2 in check or money order.

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