A friend asked me to write something to present to new members of the bar in Alabama this week. Here it is:
You are about to embark on a career as an ambassador for other people’s sorrows. Nothing you have studied in law school has prepared you for what you will see, and for the pressures you will endure as a practitioner. You have sacrificed much to earn the right to practice law, and your motives for being here are no doubt both noble and base. You can do well by doing good. But first you must learn to survive, and that will take all the cunning of Odysseus, a man, you will recall, of many sorrows.
There are no larger truths in the law, no vision of the good, true and beautiful that will make right all that the law seeks to correct. The law is where we turn to resolve conflicts without overt resort to violence. But the courts are places of great emotional violence. Your job is to be the good shepherd your client relies upon to guide her safely through whatever process she faces.
Whether a plaintiff’s lawyer or a defense lawyer, on the civil side you will engage in intellectual and emotional combat to protect, and to advance, your client’s interests in this world. Ours is not the task of preparing souls for immortality. Leave righteousness to men and women of the cloth.
Learn to listen well not just to what your client says, but to why they are saying it. Only law professors talk about bargaining in the law’s shadow; practitioners know that the darkest shadows cast in a courtroom come from fear, anger and dread – these emotions animate most litigants, whether it be in a child custody dispute, a dispute about unfulfilled promises, or a claim arising from a personal injury. These dark furies will become close acquaintances of yours.
They will kill you if you let them.
Normal empathy just can’t withstand a daily onslaught of raw and ferocious need. You must learn to listen while protecting yourself. Empathy is wonderful; self-preservation, the keeping of boundaries between yourself and your client, is critical. Suicide, alcoholism and drug use are temptations to which too many lawyers succumb. Soon you will understand why.
Read fiction, read psychology, read history. Find time every day to see the world through lenses other than the law’s. The legal tools you have been taught to use are mere bandages. Many lawyers forget this, and then become frustrated, even angry, when clients don’t listen to their advice. Remember, your job is to advise, the client then decides. Clients will reject your advice; it will hurt. When that happens listen to your client, watch your client – they conceive of their interests in ways different than you do. Learn about all that moves a psyche. We are crooked timber, each of us.
This will become obvious to you in the criminal courts. The law is savage in its consequences, often judging a person’s entire worth as the mere sum of his worst moment. A man can face decades in prison for a moment’s mistake. Often you will be able to offer a client a negotiated plea that will result in a lesser sentence than he will receive if he looses trial. In many cases, you will see an avalanche of evidence that promises to bury your client. You will beg the client to see the avalanche, to avoid the catastrophe sure to come. The client will ignore you and instruct you to go to trial in a case you are sure you cannot win. You will win some of these cases. You will learn in despair the courage it takes to excel as a lawyer.
It is when you face hopeless odds and throw your entire soul, all the talent you have, between the avalanche and your client that you actually begin to become a lawyer. Ours is a Christ-like profession: greater love has no man than this, that he lay down his life for a client. Break yourself on the hard wheel of impossible cases. And then heal, returning stronger and more determined to face the next challenge.
If there is one thing I wish an older lawyer had told me when I started out, it would be this: forgive yourself when you fail. You will not win every case. No one does. You don’t choose your cases. They choose you. Your case is not an athletic contest. Do your best every time, sparing no effort: die, and then rise again. In a decade’s time, you will become sturdy. Over the decades, you will become a sheltering oak to others enduring life’s most terrifying storms.
Love, laugh, stay fit – do all the ordinary things everyone tells you to do. Don’t forget these things. They are basic. But above all, fight. Pause at the lintel to every courtroom and repeat the Spartan warrior’s pledge: today is as good a day as any to die. One day you will die, we all do, but until that day comes, face the uncertain with cunning and courage.
And then fight to defend your client’s interests. It is what we do as lawyers. It is all that we contribute to an imperfect world cascading from crisis to crisis. It is a noble calling that will break your heart in the end. And that is at it should be, for as much as we like to pretend we are above it all, mere observers of the sorrows of others, our lives are one of sacrifice. We are made of the same unstable clay in which our clients are cast. Never forget it.
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.