Defending Isn't About Morals
A reader wrote the other day to ask whether I ever get upset with a client for lying to me. What would I do, she inquired, if a client told me he was not guilty of murder, and I later learned that he had done the crime?
The answer is simple: Nothing.
This struck her as a revelation. All week long, I’ve wondered why.
The law is not about morals. That doesn’t stop prosecutors from strutting the well of a court demanding accountability. But to whom, exactly, are they asking defendants to be accountable? Certainly not to the prosecutors themselves, they are mere advocates, much like defense lawyers, playing their respective roles on differing sides of the aisle.
Even judges get confused about the interaction between law and morals.
I was in federal court not long ago standing beside a client who had pled guilty to lying to federal investigators about his tax deductions. The client, a former police officer, should have known better, the judge said. His acts were “shameful,” she intoned.
I winced when I heard the jurist play moral censor. She knew full well that law enforcement officers are permitted to lie all the time to suspects. The courts condone lying when it serves larger purposes. Why, I wondered, is it honorable for FBI agents to lie to suspects, as is commonly done in interrogations, but a crime for a suspect to lie to the FBI?
We can apparently lie to serve the public good, but not for our own good, or some such twaddle.
There are all sorts of crimes. Some reflect transgressions of deeply held moral values: We ought not, except in extraordinary cases involving, let’s say, self-defense, to kill. I can conceive of no justification or excuse for the molestation of a child. These acts, murder and child rape, are said to be bad in and of themselves, what the law calls malum in se. One need not have religious convictions to regard such offenses as something like sin.
Other crimes don’t reflect the same moral weight, they are acts the sovereign merely prohibits us to perform; these acts are called malum prohibitum. It matters not one whit morally whether we drive on the right side or left side of the road, yet the law requires we observe rules of the road for the safety of all. Breaking the rule isn’t breaking a moral law.
A defense lawyer’s job is not to parse such distinctions. It is simply to defend.
That’s not to say that lawyers themselves are free to lie. Lawyers have a code of conduct they must follow. One of the cardinal rules is the duty of candor toward the tribunal. It is forbidden knowingly to misstate the truth to a judge, just as it is to fail to alert a judge to a decided case reaching a conclusion inconsistent with the one you are advancing.
But here’s where things get sticky: Just what is the truth about a given case?
It’s not uncommon for a client to appear and relay one version of potential events only to change course later, perhaps after learning more about the state’s evidence against her. You can’t very well maintain an alibi defense when all the folks who were supposed to vouch for you have told the state you weren’t there.
As a general rule, lawyers are prohibited from telling others their client’s secrets without the client’s permission. The attorney-client privilege exists so that clients can feel safe talking to their lawyers.
There are four potential roads a lawyer can travel when faced with a client who has a casual, or even no, relationship with the truth.
Cynics take the view that because lawyers are never witnesses in the cases they try, they never know the truth. Did the client claim alibi at first, only to change her story to self-defense? No problem. She can testify now that she witnessed the butler do it, so far as the cynic is concerned. After all, he wasn’t there; what does he know?
I don’t know many lawyers who play that fast and loose with truth. The road to hell is slippery, they say; the first step is often the last with any traction.
But what if the truth will hurt your client? In that case, you protect your client the best you can. In a civil context, that might mean having the client assert their right to remain silent if speaking the truth will result in criminal charges. In criminal cases, where the state has no right to call a client to the stand, you might recommend the client not testify at all.
But there are cases in which a client insists on lying. The lawyer knows it. What then? In these truly difficult cases, a lawyer has no choice but to move to withdraw — requesting the judge to let him out of the case — due to a conflict between his duty of candor toward the tribunal and his duty to be a zealous advocate for his client.
Such motions are tricky. The lawyer can’t, after all, break the attorney-client privilege. Most good judges understand this sort of conflict without it being spelled out in black in white. Insiders call these motions “noisy withdrawals.”
A safer course is to insist on integrity. Good lawyers confront their clients with the inconsistencies in the client’s claims. Impressing upon the client the need to be truthful is an obligation worth honoring.
Of course, in the overwhelming majority of cases lawyers avoid these issues altogether by not asking the client whether they did the crime. It hardly matters, you see. And that’s the answer that stunned my friend. I only ask a client whether they committed the crime if there’s something I need to know. Often, all I need to know are the weaknesses in the state’s case. I am not in the business of saving souls; neither is the state.
God saves immortal souls. Defense lawyers protect far more mundane interests. The state, well, I’m not sure what it does — too often it confuses mere public order with righteousness.