Untitled 8

John Wesley Hall brings to our attention a new article: Fred Zacharias, Fitting Lying to the Court into the Central Moral Tradition of Lawyering, 58 Case West. L. Rev. ___ (2008).

Professor Zacharias focuses on what he calls Professor Monroe H. Freedman’s “most interesting illustration” of circumstances in which zealous representation might “require a lawyer to make a false statement to a court or a third person, or to engage in other conduct involving dishonesty, fraud, deceit, or misrepresentation.”

The illustration to which Professor Zacharias refers:

Suppose a judge routinely calls criminal-defense lawyers to the bench prior to trial and says “Let’s move this along. Did he do it or didn’t he?”

Now, this is the sort of thing a civil judge like Carolyn Marks Johnson might do. Otherwise it is (as Professor Zacharias recognizes) an unlikely situation.

(Letting civil judges hear criminal cases, incidentally, falls, along with letting civil lawyers try criminal cases, into the category of “knives to gunfights”.)

But while implausibility certainly contributes to the banality of the illustration, it’s not the deciding factor for me. In my view, Professor Freedman’s illustration itself is uninteresting because the answer is trivial, and doesn’t contribute to a discussion of making false statements to a court. (The article in which Professor Freedman uses the illustration, In Praise of Overzealous Representation-Lying to Judges, Deceiving Third Parties, and Other Ethical Conduct, is nontrivial. When is it ethical to lie? The article will give you some things to think about.)

The one thing that the lawyer cannot say in the hypothetical situation is, “Yes, your honor, he did.”

A proper answer, taking the judge’s question literally, is “Judge, you know I can’t answer that.” Professor Zacharias (who ultimately adopts the position that this is the correct response) teases us by noting that the judge might “assume that the client is guilty and hold it against the client.”

Really? A judge might assume that my client is guilty? What, in the name of all that’s holy, is the world coming to? Run in circles, scream and shout!

Aw c’mon now. Anyone who’s made his living in a criminal courtroom knows that this particular judge assumes that our client is guilty. Answering this question is like talking to the cops: they’re not trying to help you out, so nothing you say in your favor is going to be believed.

Professor Freedman’s response to his own illustration is that the judge has acted improperly, and that therefore the lawyer is justified in answering, ‘I have no doubt that my client is not guilty,’ even if the opposite is true.”

Let the law profs talk about niceties of the theory legal ethics; what’s most important for those of us who actually practice criminal law in the courtroom to remember if we’re ever faced with such a judge is that he doesn’t know diddly-squat about the criminal law.

Before trial, “my client is not guilty” is the truth. “Guilt” is a legal term, a term of art, and before his guilt has been proven beyond a reasonable doubt he is, as a matter of law, not guilty. “He is innocent” is equally true. . . until he’s proven guilty. Professor Zacharias calls Freedman’s response to the question a “lie to the court,” demonstrating an understanding of the bedrock of the criminal justice system that is suspect at best.

Of course, these true answers aren’t directly responsive to the judge’s question, but remember: the nicety of the distinction between legal guilty and factual guilt is a part of the criminal law of which this hypothetical judge (or, apparently, Professor Zacharias) is not cognizant. Professor Freedman describes the answer not as a lie, but as “intended to mislead the judge into believing something that the lawyer knows to be false”:

[T]he lawyer’s response is not literally false, because it is a form of morally justifiable equivocation. That is, although the lawyer’s statement is intentionally misleading, it is technically accurate, because the client is presumed to be innocent, and is not legally guilty until the jury has found him to be guilty after a trial. Moreover, the judge should know that the lawyer’s role – including the lawyer’s constitutional and ethical responsibilities – justify the lawyer’s wide mental reservation: “My client is innocent, because under the Constitution and laws of the United States, my client is innocent until proven guilty beyond a reasonable doubt.”

He’s closer to verity, but (I think) still wrong. If the judge asks an improper question and I respond with a literally true non-answer, it’s not my business what incorrect conclusions he reaches, based on his unconscionable ignorance of the law, from that answer. We agree that it’s okay not to answer the question; “my client is innocent” is not answering the question without signaling to the vicious boob in the black dress that you’re not answering the question.

Zacharias complains that “when the question is later asked about an innocent client, the lawyer’s word will mean much less. In effect, the lawyer has thrown one set of clients under the bus for another.” We who toil in the trenches of the criminal justice system recognize that our duty is to this client. If we resist doing what’s right for this client for the sake of later clients, we’re throwing this client under the bus.

Professor Freedman considers much more than the “regulators’” (Professor Zacharias’s word) narrow view of legal ethics (in other words, much more than just the law) in exploring the ethics of deceit; he “consider[s] the larger legal context of the lawyer’s role, including our clients’ constitutional rights;. . . understand[s] inconsistent ethical rules in the light of reason; and appl[ies] insights of moral philosophy” to reach his conclusion.

That is what practicing criminal lawyers do every day: consider legal context, reason, and insights of moral philosophy in trying to make ethical decisions. You can’t learn ethics from a law book.

Not to get all Greenfieldesque, consulting a law prof on matters of legal ethics is often like consulting a monk on matters of sex: he may be able to expound at length upon the theory, but there are probably better people to go to for practical advice.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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6 Responses to Untitled 8

  1. Michael says:

    “Vicious boob in the black dress”? Did Carole Marks Johnson have a mastectomy??

  2. anna says:

    First, Michael, mastectomy is never funny, okay? It happens because of breast cancer. How would you feel if I asked if a judge had his testicles cut off? or his penis?
    Second, Mark, now I have to read a law review article, something I have avoided for years. But Fred was a friend of mine in law school. He was very smart and a very nice guy. It seems like I agree with everything you say, but I feel like I have to defend Fred. I think he did actually practice law for awhile, but I could be wrong. I have always thought that Professor Friedman was the practitioner’s friend. Anna

  3. Mark Bennett says:

    Professor Zacharias refers several times in the article to practicing criminal defense. He doesn’t seem to have a criminal defense mind, though. Professor Freedman does.

  4. Ron in Houston says:

    In my 23 years of practice, I really can’t remember anything close to his happening. Most of my ethical issues are pretty easy. However, I think just the nature of criminal law creates more potential ethical bombs that often tend to be more difficult.

  5. John says:

    I think I’d say: “They sure haven’t proved it, your honor.” Admittedly, playing for the other team, I’ve not faced this particular question. Some like it. That said, we are advocates, and the proper answer is to advocate your client’s interest.

  6. Michael says:

    Can’t you just respond “Well, Judge, back where I come from, the judges tend to obey the judicial canons and not ask such obviously stupid and unethical questions, so I’m unprepared to answer you as I don’t practice in Hicksville everyday”? Or would that be bad?

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