Tuesday, April 13, 2010

WHY LAWYERS [e.g., Linda Hollenbeck] LIE -- According To A Psychiatrist.

As one person said, "I'm no psychiatrist, but being a parent, not to mention having been a teenager my experience tells me people lie for two reasons: they think they can't get caught and/or they are more afraid of the truth." Such as when they are protecting their jobs and pressured by their boss they will even perjure themselves in court, ignoring the consequences to themselves, and certainly with no care and concern for what the harm is they do to others.

The following article spends a lot of time discussing the first reason for lying and also addresses the competitiveness of the adversarial system as an explanation for lawyers lying, but what appears more important -- their narcissism.

Suppose a judge calls both the prosecutor and defence lawyer into private chambers before a criminal trial and asks, “Come on, let’s move this along. Did he do it or didn’t he?” [Not as uncommon as you may believe.] Allan C. Hutchinson in his text, “Legal Ethics and Professional Responsibility”.

The defense lawyer is presented with an "ethical dilemma." To respond in the generally accepted manner, which is simply to politely draw the judge’s attention to the abject impropriety of the question, might actually prejudice the client, since the judge might retaliate against the lawyer by making findings contrary to the lawyer’s client where there is close evidence on each side. So he responds with a “doctrine of mental reservation”, to justify his responding to the judge “… I have no doubt that my client is innocent.” The statement is calculated to mislead the judge, and is not ethically acceptable, and both know it. [Judges were practicing attorneys.]

Richard Ratner, a board-certified psychiatrist has many lawyers as patients in his clinical work and also serves as a forensic psychiatrist in bar disciplinary cases and other types of litigation. He says a lot of "psychopathology" takes place in litigation, for a variety of reasons.Lawyers will use the psychological defenses of "rationalization" and "denial" to enable themselves to intentionally mislead -- and even lie -- if they believe that is the only way to win. Ratner states that as a result of this rationalization and denial, they do not see themselves as having done anything wrong. Instead, they see themselves as justified, because they were acting for a "higher purpose" of "defending their client's." He explains that the power of rationalization can be enormous.

Rationalization can even be seen in such horribly extreme examples as with the deaths of innocents in hotel fires, and purposely making the elderly and handicapped homeless by their slum lord clients seem as "heroic."

Arthur D. Burger
New Jersey Law Journal
August 22, 2008


How many of you have deliberately misstated important facts to a court? Silence. Mmm hmm.

Coincidence? I don't think so.

As a litigator myself, I can easily think of two examples when opposing counsel did just that.

When I was a very young lawyer handling my first evidentiary hearing, my client, whose alimony obligations I was trying to reduce, had a housing allowance of $4,000 per year as a government employee living abroad -- which we fully disclosed. The lawyer for my client's former wife kept bringing up the allowance, and each time he did so, somehow what came out of his mouth was $40,000, not $4,000. Each time I had to stand up and correct him. Surely, stating the wrong number once could be an honest slip, but how could one explain the repetitions?

Much later in my career, in a hotly contested lawsuit, opposing counsel repeatedly accused me in motions papers of "altering documents," without bothering to mention that the so-called "alterations" were plainly marked redactions pursuant to the rules, properly identifying in each instance the claim of privilege being invoked.

I wondered, "What are these lawyers thinking?" Even from a Machiavellian standpoint, how could they expect to gain anything from such easily rebuttable distortions?

So as a lawyer, I went to someone who I thought could explain this phenomenon. That's right -- a psychiatrist. And he was not at a loss for words.

Richard Ratner, a board-certified psychiatrist since 1973, has many lawyers as patients in his clinical work and also serves as a forensic psychiatrist in bar disciplinary cases and other types of litigation. He says a lot of "psychopathology" takes place in litigation, for a variety of reasons.

First, he notes that lawyers, generally, and litigators, in particular, tend to "have generous helpings of narcissism," which he says can be both good and bad. Narcissistic people, he states, "want to go out of their way to shine and make themselves look terrific." This is a good thing to the extent it motivates them to work hard and be prepared.

The problem, he says, comes when you put such people in the crucible of litigation, which after all is a competition with winners and losers. He says that this competition aspect creates a polarization of issues and, for narcissistic people, places their fragile egos directly onto center stage.

Ratner explains that extremely narcissistic people are so "needy for the affirmation of success," that the idea of losing is seen as unbearable. They will therefore use the psychological defenses of "rationalization" and "denial" to enable themselves to intentionally mislead -- and even lie -- if they believe that is the only way to win.

Ratner states that as a result of this rationalization and denial, they do not see themselves as having done anything wrong. Instead, they see themselves as justified , because they were acting for a "higher purpose." He explains that the power of rationalization can be enormous. It can even be seen in such horribly extreme examples as when the killing of innocent civilians by terrorists is seen as "heroic."

It is useful to understand this dynamic in our adversaries so we know what we are up against , and see the element of insecurity and desperation driving such behavior. It is also useful, however, to examine ourselves and look for similar symptoms.

None of us likes to lose, and nearly all of us, at times, get carried away in litigation by a certain "bunker mentality," through which we see our side as "good" and the other side as "bad." Ratner says that it's important to take one's own temperature during the course of a contentious case to assess whether you have maintained perspective. One good way to do this, he says, is to discuss the case with a colleague or at least to take time to calmly review the record and look at the facts.

Indeed, I recall instances where I have feverishly scrawled angry epithets in the margins of my copy of opposing counsel's briefs, filled with righteous certainty that they have misstated the record or mischaracterized a court decision -- only to review the record, or look up the cited case, and see that, at least to some degree, they had a valid point that needed a thoughtful answer.

Without taking a few moments to review the record or read the cited case, I might have been prepared to lunge out with angry misstatements of my own. Who knows? Perhaps at times I have done so.

Being aware of Ratner's observations provides a tool for us to periodically look at ourselves, which should work to our benefit by allowing us to avoid court sanctions, see the strengths of an opponent's case or simply avoid looking silly.

Our clients want us to fight hard -- and to win. But we can do that best if we keep our wits and see reality. If that requires putting our egos in check, so be it. After all, it's doctor's orders.

Arthur D. Burger is a director at Washington, D.C.'s
Jackson & Campbell and is chair of the firm's professional responsibility practice group. He represents law firms and lawyers in matters related to professional ethics.

by Adam Freedman

Can lawyers tell lies? Professionally, that is.

Is it ethical for a lawyer to commit perjury if he thinks it’s in the best interests of his client?

That’s a great question, and it touches on the age-old suspicion that lawyers are, at best, often tempted to lie or, at worst, professionally obligated to lie. The quick answer is that lawyers are not supposed to lie, but they can’t necessarily prevent their clients from lying.

What’s the Difference Between Perjury and Plain Lies?

First, let me clear up the terminology. In his email, Are lawyers allowed to commit “perjury.” The term “perjury” refers specifically to making a false statement under oath. It’s rare for lawyers to commit perjury for the simple reason that lawyers generally do not make statements under oath--that’s what witnesses do. Instead, lawyers make arguments based on the testimony of witnesses, but they don’t do so under oath.

But even when a lawyer is required to make a statement under oath (such as when the lawyer is himself a witness), it is never proper to make a false statement. Perjury is a crime no matter who commits it.

But what about when the lawyer isn’t under oath? The American Bar Association’s Model Rules of Professional Conduct states: A lawyer “shall not knowingly make a false statement of material fact.” In other words, lawyers aren’t supposed to lie--and they can be disciplined or even disbarred for doing so. But notice, the key word here is “knowingly.” A lawyer cannot “knowingly” lie.

Do Lawyers Know if Their Clients Are Lying?

There is, however, no rule that requires a lawyer to know what the truth is. As a result, lawyers are sometimes torn between the rule against lying and a separate ethical rule requiring lawyers to represent their clients “zealously.” Here’s what happens: a client approaches a lawyer. He’s being sued by someone, or is being criminally prosecuted by the state. The client tells the lawyer his version of the facts.

Lawyers shouldn’t lie, but they don’t have to fact-check their clients. [Except for a Deputy District Attorney who who must do "due diligence" ot make sure theyhave a case.] The lawyer is skeptical of the client’s story, but he’s under no obligation to fact-check the client. Rather, the lawyer can argue [rationalize] that it is his duty as a “zealous” advocate to accept the client’s version of the story, and try to produce evidence to support that story.

Confidential Communications are Off-Limits

What about clients or witnesses who only tell part of the truth, rather than the “whole truth?” The Model Code requires that lawyers must disclose important facts “when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.” So, in theory, if a lawyer sees that his client is misleading a court or another person by omitting important facts, the lawyer is supposed to disclose the missing information. But there’s a big exception to this rule: there is no duty to disclose facts that a client told his lawyer in confidence. And generally, most facts that the lawyer learns from the client will have been learned in a confidential lawyer-client conversation.

Can Lawyers Defend Clients They Know are Guilty?

Okay ... What about the big enchilada? Can a lawyer defend a client in a criminal trial when he knows the client is guilty? The answer is: yes, but the lawyer has to proceed somewhat carefully.

If the client confesses his guilt to the lawyer, but wants to plead “not guilty,” a lawyer can represent him within ethical bounds. The reason is simple: in the eyes of the law, every person is innocent until proven guilty, [lots of laughs] and it is the state’s obligation to prove guilt “beyond a reasonable doubt.” There is nothing unethical about a lawyer demanding that the state meet its burden of proving guilt beyond a reasonable doubt. It’s everybody’s right, and they do it on TV all the time.

One thing a lawyer cannot do, however, is encourage the client to get up on the stand and give false testimony. In that situation, the client commits perjury, but the lawyer commits a distinct crime known as “suborning perjury,” and it’s a very serious offense. [When a lawyer is presented with documentationfrom an opposing side that shows their client is lying, or declarations from clients that are perjurious, and the lawyer goes forward anyway, knowing their client is lying... It is "fraud on the court" to present declarations from their clients, e.g. Karen Brooks and Cassandra Oseth-Oshsner, that are provably perjurious, and collateral estoppel can come into play.]

Recap: Can Lawyers Lie?

So, to recap, a lawyer should not lie, commit perjury, or encourage others to lie or commit perjury. But a lawyer is entitled to accept his client’s version of the facts and is positively required to maintain the confidentiality of all communications with the client. Ethics aside, my advice, whether you’re the lawyer or the client, is: always tell the truth. It’s the easiest thing to remember!