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Lawyers, Truth, and Honesty in Representing Clients Peter J Notre Dame Journal of Law, Ethics & Public Policy Volume 20 Article 8 Issue 1 Symposium on Law & Politics as Vocation February 2014 Lawyers, Truth, and Honesty in Representing Clients Peter J. Henning Follow this and additional works at: http://scholarship.law.nd.edu/ndjlepp Recommended Citation Peter J. Henning, Lawyers, Truth, and Honesty in Representing Clients, 20 Notre Dame J.L. Ethics & Pub. Pol'y 209 (2006). Available at: http://scholarship.law.nd.edu/ndjlepp/vol20/iss1/8 This Article is brought to you for free and open access by the Notre Dame Journal of Law, Ethics & Public Policy at NDLScholarship. It has been accepted for inclusion in Notre Dame Journal of Law, Ethics & Public Policy by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. LAWYERS, TRUTH, AND HONESTY IN REPRESENTING CLIENTS PETER J. HENNING* INTRODUCTION The Supreme Court asserted in Nix v. Whiteside that a trial is a search for the truth.1 While this may be a clear expression of the operating rationale of the justice system, it is wrong to trans- late that assertion into a prescription for how lawyers are to oper- ate when they provide legal representation to clients. A distinction must be drawn between the goal of the judicial system and the broader category of legal representation that incorpo- rates the rules regulating how lawyers represent clients. To say that the rules governing lawyers do-or should- reflect a commitment to truth is a worthy goal, but it misappre- hends how the professional standards should be applied. The rules have to set minimum criteria for how lawyers practice their profession, which entails the representation of clients in dealing with the judicial system and other individuals, including oppos- ing lawyers. While those rules should not undermine the judicial system, they need not mirror the goals that system tries to * Professor of Law, Wayne State University Law School. The author appreciates the support of Wayne State University Law School, and input from presentations on this topic to the faculty at Wayne State University and Texas Tech University. The Article was aided by comments by Professors John Dolan and Peter Hammer, and the assistance of Olive Hyman. This Article is copyright © 2005 by PeterJ. Henning. All rights reserved. 1. 475 U.S. 157, 171 (1986) ("[U]nder no circumstance may a lawyer either advocate or passively tolerate a client's giving false testimony. This, of course, is consistent with the governance of trial conduct in what we have long called 'a search for truth.'"); see Williams v. Florida, 399 U.S. 78 (1970), stating: The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. We find ample room in that system, at least as far as 'due process' is concerned, for the instant Florida rule, which is designed to enhance the search for truth in the criminal trial by insur- ing both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence. Id. at 82; see also Kenneth Pye, The Role of Counsel in the Suppression of Truth, 1978 DuKE L.J. 921, 926 ("Efforts aimed at the ascertainment of truth must be central to the role of counsel in any system for the resolution of disputes."). 209 210 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBIJC POLICY [Vol. 20 achieve.2 The regulations for lawyers must deal with every type of legal representation, and not simply when a lawyer stands up in court. While the picture of the attorney appearing in a court- room is paradigmatic of the profession, it should not be under- stood as representing the large volume of legal representation that is also governed by the rules of the profession. The rules governing the legal profession recognize that a lawyer must be a zealous advocate for the client, putting that per- son's interests ahead of all others.' As Lord Brougham famously described the lawyer's role in 1820: "[A]n advocate, in the dis- charge of his duty, knows but one person in all the world, and that person is his client."4 Some have argued that advocacy must be limited if it obstructs the search for the truth because the law- yer's paramount obligation is to the court's ascertainment of the truth and not the client's interest in a favorable outcome, partic- ularly in a criminal case.5 For the prosecutor, this means that justice must be served and the government's lawyer has a "duty to refrain from improper methods calculated to produce a wrong- ful conviction."6 Yet, the same obligation is not imposed on the defense lawyer, whose duty to the client is paramount. As Justice 2. One can reasonably question whether the adversarial system is even designed to achieve a relative approximation of the truth, as opposed to an inquisitorial system. See Bryan T. Camp, Tax Administration as InquisitorialProcess and the PartialParadigm Shift in the IRS Restructuring and Reform Act of 1998, 56 FLA. L. REv. 1, 19 (2004) ("[O]ne value that the American adversarial system prefers over Truth is the protection of an individual's freedom to act without having to account to the state for the act, and freedom from state monitoring or intervention: in short, a sphere of individual autonomy ....");Matthew T. King, Security, Scale, Form, and Function: The Search for Truth and the Exclusion of Evidence in Adversarial and InquisitorialJustice Systems, 12 INT'L LEGAL PERSP. 185, 236 (2002) ("With the full Truth, inquisitorial systems can then go on to dis- pense the exact and proper justice required . ."). For the purposes of this Article, I accept the Supreme Court's assertion in Nix v. Whiteside regarding a trial as a search for the truth as the principle goal of the judicial system. 3. See CANONS OF PROFESSIONAL ETHICS Canon 15 (1908) ("The lawyer owes 'entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability.'" (quoting GEORGE SHARSwOOD, AN ESSAY ON PROFESSIONAL ETHICS 78-79 (photo. reprint 1993) (5th ed. 1896))). 4. 2 TRIAL OF QUEEN CAROLINE 8 (J. Nightingale ed., 1821). 5. See, e.g., Marvin E. Frankel, The Search for Truth: An Umpireal View, 123 U. PA. L. REv. 1031, 1032 (1975) ("[O]ur adversary system rates truth too low among the values that institutions of justice are meant to serve."); Harry I. Subin, The Criminal Lauyer's "DifferentMission ":Rejlections on the "Right" to Present a False Case, 1 GEO.J. LEGAL ETHICS 125, 128 (1987) ("[I]f stricter limits on truth-subversion were instituted, the rights of persons accused of crimes gener- ally would be enhanced."). 6. Berger v. United States, 295 U.S. 78, 88 (1935); see also Bennett L. Gershman, The Prosecutor's Duty to Truth, 14 GEO. J. LEGAL ETHICS 309, 313 2006] IAWYERS, TRTIH, AND HONESTY IN REPRESENTING CIENTS 211 White asserted in United States v. Wade, "[W]e countenance or require conduct [by a criminal defense lawyer] which in many instances has little, if any, relation to the search for truth."7 Lawyers must deal with a conundrum because they are required to act as officers of the court-presumably working to advance the truth-while providing loyal representation to cli- ents who may have little to gain from its ascertainment, particu- larly in criminal cases.' Neither goal can be fully achieved in every representation, and it is from the competition between these two principles that much of the criticism of the legal pro- fession arises.9 Many accuse lawyers of being liars with little devo- (2001) ("[T]he prosecutor has a legal and ethical duty to promote truth and to refrain from conduct that impedes truth."). 7. United States v. Wade, 388 U.S. 218, 258 (1967) (White,J., concurring in part and dissenting in part); see also Darryl K. Brown, The Decline of Defense Counsel and the Rise of Accuracy in Criminal Adjudication, 93 CAL. L. REV. 1585, 1590 (2005) ("[D]efense counsel's commitment is not to accuracy; it is to his or her clients, many of whom want inaccuracy to mask their guilt."). 8. See Arthur Gross Schaefer & Leland Swenson, Contrasting the Vision and the Reality: Core Ethical Values, Ethics Audit and Ethics Decision Models for Attorneys, 32 PEPP. L. REv. 459, 474-75 (2005). [T]he [Model] Rules [of Professional Conduct] are silent regarding how the lawyer is to act when balancing conflicting rules within the Rules. For example, the Rules state that the lawyer has a specific duty to promote the interests of the client, as well as a duty to not mislead the court. While overt lying is clearly forbidden, selective silence can easily violate the spirit of an attorney's duty to the court. Id. 9. See STEVEN LUBET, NOTHING BUT THE TRUTH: WHY TRIAL LAWYERS DON'T, CAN'T, AND SHOULDN'T HAVE TO TELL THE WHOLE TRUTH 1 (2001), stating: The popular image is that lawyers, and trial lawyers in particular, are cunning deceivers and misleaders, flimflam artists who use sly rhe- torical skills to bamboozle witnesses, turning night into day. In this conception, lawyers tell stories only in order to seduce and beguile the hapless jurors who fall prey to the advocate's tricks. Id.; see also RICHARD ZITRIN & CAROL M. LANGFORD, THE MORAL COMPASS OF THE AMERICAN LAWYER 163 (1999) ("Lawyers are perennially rated among the least beloved people in America.
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