New York University legal ethics professor Stephen Gillers was quoted in Sunday’s NYTimes Op-Ed, Résumés Made for Fibbing by John Schwartz. The essay is a riff on lying and why people do it. Schwartz asserts that “each of us tells little lies to make it through the day, and an indistinct line divides fair from foul.”
The reason the subject of lying came up in the paper is principally due to the latest politician caught embroidering truth, Connecticut Attorney General Richard Blumenthal who mischaracterized his U.S. Marine Corps service by claiming on occasion of serving in Vietnam when he hadn’t.
The fact that Blumenthal is also a lawyer is of more than incidental interest. “Lawyers can be at particular risk of pushing the boundaries of acceptable spinning,” Gillers said. Calling them alchemists through performance, Gillers also said that “a fact becomes true if a jury or opponent can be persuaded to think that it is true — even if it is false.”
Of moving lips.
There’s a very old lawyer joke about how to tell when a lawyer is lying. “It’s when his lips are moving.” An equally old assertion is that since lawyers are trained to zealously argue either side of an issue, they soon ‘forget’ the strands of truth present in such debates.
Years ago, lawyers were called ‘mouthpieces.’ Nowadays, it’s all about spin and being ‘spinmeisters.’ Sophocles said,“Truly to tell lies is not honorable, but when the truth entails tremendous ruin, to speak dishonorably is pardonable.”
In the case of politicians, the fact that truth itself is honorable is also forgotten. Lies emanate from self-delusional self-interest. For those running for office, it becomes like what Ken Kesey wrote in One Flew Over the Cuckoo‘s Nest,“It’s the truth, even if it didn’t happen.”
In another book I also read years ago, The Crime of Sheila McGough, author Janet Malcolm posited a similar take on truth, lawyers and the legal system. One of my favorite quotes from Malcolm’s book is that “Trials are won by attorneys whose stories fit, and lost by those whose stories are like the shapeless housecoat that truth, in her disdain for appearances, has chosen to uniform.”
Lawyer, patriot, and second U.S. President, John Adams, in his defense of the British soldiers on trial for the Boston Massacre, said that “Facts are stubborn things; and whatever may be our wishes, our inclination, or the dictates of our passions, they cannot alter the state of facts and evidence.”
But under ABA Model Professional Conduct Rule 4.1: Truthfulness in Statements to Others, Current Version, “A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts.”