American Lawyers Have to Lie

Here is what a leading Yale Law School scholar says about lawyers lying.  He says that it is “part of the “systematic interpretive engagement with the professional obligations of adversary advocates. . . .” It is part of the “ordinarily immoral conduct to which lawyers are professionally committed. . . .”

Of  course this is not the whole story he tells in his 250 page (not including endnotes) very complicated and often brilliant book, though one difficult to read.

Here we go.

Unlike juries and judges, adversary lawyers should not pursue a true account of the facts of a case and promote a dispassionate application of the law to these facts.  Instead, they should try aggressively to manipulate both the facts and the law to suit their clients’ purposes.  This requires lawyers to promote beliefs in others that they themselves (properly) reject as false.  Lawyers might, for example, bluff in settlement negotiations, undermine truthful testimony, or make legal arguments that they would reject as judges.  In short, lawyers must lie. [p. 3, emphasis added.]

[L]awyers are professionally obligated to lie and cheat [i.e., treat people unfairly], both under the positive law of lawyering as it stands and under any alternative regime of professional regulation that remains consistent with adversary adjudication’s basic commitment to a structural separation between advocate and tribunal. . . . The center of gravity of my argument remains the genetic structure of adversary lawyers, and in particular the separation between advocates and tribunals that constitute adversary adjudication’s core[.] [p. 4]

[P]rofessional ethics requires lawyers to betray their own senses of truth and justice in ways that contravene the ethic of self-assertion that dominates ordinary morality[.] [p. 5]

[L]awyers’  professional obligations to mislead and to exploit are incidents not of any specific, elaboration of the adversary ideal[,] but rather of that ideal itself.  The arise ineliminably out of the structural separation between advocate and tribunal, and the associated principles of lawyer loyalty and client control, that belong to every conception of adversary advocacy, no matter what its limits. [p. 8]

Daniel Markovits, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age  (Princeton: Princeton University Press, 2008).   The author is a law professor at Yale, and for those of you who care about this kind of thing, he comes from a distinguished family amongst the law school professoriate, and elite economists.