June 2001

The Truth, the Whole Truth, and Nothing But the Truth

by Jan Eric Peterson, WSBA President

I know I'm going to get a lot of grief for writing this article, but I'm going to do it anyway. As U.S. Supreme Court Chief Justice Earl Warren once said: "Everything I did in my life that was worthwhile, I caught hell for."

At the core of the public's distrust and criticism of lawyers is the perception that we do not tell the truth, and everyone but us realizes it! Public faith in the legal profession is not merely at an all-time low, but according to recent polling, has been declining at a disturbing rate. During the past decade, the percentage of people willing to rate lawyers' honesty and ethical standards as "high" or "very high" has dropped from 22 to 13 percent, an average decline of nearly one percent per year. According to pollsters, lawyers are ranked among the five occupations considered least honest by the American public, and the legal profession is among three that have lost the most in ratings over the last 10 years. From Watergate to Bill Clinton, it has been a disgrace. The movie Liar Liar was based on the premise that a lawyer could not speak in court because of a spell cast over him to tell only the truth. The public loved it. Lawyers are offended by this premise, and honestly believe themselves to be truthful. However, we all have stories about other counsel who weren't honest, shaded the truth, or engaged in deception or sharp practice. I don't think that "other counsel" is the same person for all of us.

Are we earning this disparaging reputation? Have our system, our billing methods, our zealous advocacy, our commitment to put our clients' interests above all others', our professional courtesies allowed daily misrepresentation to be accepted, to be commonplace, to be overlooked? Why has the confirming letter become an essential safeguard? Why have negotiation posturing and outright misrepresentation of authority become accepted parts of the settlement dance? Have the public and our clients seen it and heard it on such a regular basis that their view that our words are not trustworthy is an accurate one?

I have read the excellent article by Jaclyn Sinclair in the February King County Bar Bulletin. I have heard the speech of the Honorable Chief Justice Thomas Zlaket of the Arizona Supreme Court, and I have read the report of John Humbach to the American Bar Association Center for Professional Responsibility and Standing Committee on Professionalism. Test yourself with their questions:

Have you ever stretched, added or created time in your billing practice?
In mediation and settlement conferences, do you and your client honestly answer questions about bottom dollar and settlement authority?
In answering discovery, have you ever "forgotten" to list an adverse witness or to disclose adverse documents? Do you narrowly parse definitions of the questions and expansively assert privileges and work-product protections to hide damaging facts for as long as possible?
Have you ever embellished an excuse for a continuance? Do you think your client does not know the truth?
Have you let your clients know that you do not trust the other lawyer and have to use "confirming letters"? And do you find these letters sometimes inconsistent with the facts of the discussions they are confirming? If lawyers can't trust lawyers, why should the public?
Have you seen flat-out misstatements of the facts, of the record, of the evidence in briefs and arguments to the court or jury? Were they often accepted as "zealous advocacy"? Are lawyers ever called to task for it by the court?
Are you scrupulously honest in the deductions on your tax return?

Little white lies are not acceptable. It's not an excuse that everyone in society does it. We are not everyone — we are supposed to set the example. Honesty and truthfulness should be the core value of our profession. We took an oath and it's for a reason. It is particularly essential to the long-term stability of our American form of government that the public be able to trust the lawyers who steward its laws and its justice. If people do not trust the integrity of the lawyers who administer the legal system, they will never find it easy to trust the system as a whole. Thus, the documented public cynicism about lawyer ethics and trustworthiness is no mere trifling concern.

Yet the Rules of Professional Conduct aren't exactly expansive about it. RPC 3.3, for example, prohibits lawyers from lying to a tribunal, but the prohibition extends only to false statements knowingly made about material facts or the law. RPC 3.4, regulating conduct between opposing parties and counsel, doesn't even use the word truth, but prohibits falsifying evidence. Although the RPCs are mandatory, Ms. Sinclair points out in her article that they are also aspirational:

Each lawyer must find within his or her conscience the touchstone against which to test the extent to which his or her actions should rise above minimum standards. But in the last analysis, it is the desire for the respect and confidence of the members of the legal profession and the society which the lawyer serves that should provide to a lawyer the incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction.

Well, we are suffering that sanction. And I know you're tired of it, so let's do something about it. First, we start with ourselves by looking in the mirror. Today is the first day of the rest of your professional life. Help regain respect and confidence by rising above minimum standards, demanding scrupulous honesty, and giving the same. We should be the maximum example, not the minimum. The model Rules of Professional Conduct are being rewritten, as is our oath of admission to the Bar. They should both contain two simple statements: "A lawyer must always tell the truth. A lawyer must never intentionally mislead by act or omission." Then judges and bar associations should enforce them.

There are those who are skeptical of this view, arguing that it merely reinforces the negative perception that people have of lawyers, and that it's unfairly critical. Lastly, and perhaps most tellingly, some believe that I simply don't trust the advocacy system. Isn't it, after all, the point of the advocacy system that the truth will emerge from the sparks of conflict, stewarded by skilled advocates adhering to the rules of procedure and evidence? In fact, there is no truth until the system declares it.

It's like the three umpires discussing their work. The first umpire says: "I just call 'em as I see 'em." The older, more experienced umpire shakes his head and says: "That's not good enough. I call 'em the way they are." But the chief umpire looks down sagely and wisely and says: "They ain't nothing till I call 'em." Perhaps this is a valid point in our system, where the truth is what the trier of fact says it is. We, the lawyers, are not the declarants of the truth, but only the facilitators.

Consult your conscience and don't accept rationalizations. If we are not honest, the system itself becomes skewed. If we expect the public's trust and confidence, we must live by the oath to tell the truth, the whole truth, and nothing but the truth. Then we can be really proud to be the profession that sets the example — honest lawyers.

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