DECEMBER 2019 | ETHICS IN VIEW

“Truthiness” and professional responsibility

by Dennis A. Rendleman, former ABA Ethics Counsel and current Springfield, Illinois, lawyer

This article reflects personal views of the author and do not reflect those of the Standing Committee on Ethics and Professional Responsibility or official ABA policy.

It’s hard to remember nowadays that “truthiness” dates from all the way back to 2005.

Many would say we’ve even entered into a “post-truthiness” era–rephrased as “post-truth.” 

Having now returned full-time to my home in Springfield, Illinois–Abraham Lincoln’s hometown–it is fitting that Lincoln’s legal career again comes in view. Known by the sobriquet “Honest Abe,” this name is said to be based upon the possibly apocryphal story that Lincoln, while a store clerk in New Salem, walked five miles to return six pennies worth of change to a woman he had accidentally overcharged. This was long before he became a lawyer.

As a lawyer in 1850, in a fragmentary document known now as “Notes on a Law Lecture,” Lincoln stated: 

There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief–resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.

Ironically, in the ABA Model Rules of Professional Conduct, the concepts of “honesty” or “truthfulness” are only partially addressed.

ABA Model Rule 4.1, “Truthfulness in Statements to Others,” states:

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

And Model Rule 3.3, “Candor Toward the Tribunal,” requires that as an advocate representation of a client:

A lawyer shall not knowingly:

make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

New Model Rule 7.1 makes perhaps the broadest statement on a lawyer’s required honesty:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Honesty and truthfulness are specific components of several other Rules–Rule 1.15 “Safekeeping Property”; Rule 3.1 “Meritorious Claims and Contentions”; Rule 3.6(a) “Trial Publicity”; Rule 6.2 “Accepting Appointments”; Rule 7.2(c) “Communications Concerning a Lawyer’s Services: Specific Rules”; Rule 8.1 “Bar Admission and Disciplinary Matters”; and Rule 8.2(a) “Judicial and Legal Officials.” Many other rules implicitly include the concepts of honesty and truthfulness.

There are a plethora of jurisdictional Professionalism Codes. Most of these non-binding statements include aspirational goals such as civility, courtesy, integrity and respect. But the obligation of truthfulness is not specifically addressed.

Though not a site focused upon the law, the Farnham Street web page contains this interesting observation:

Lawyers must be honest, but they don’t have to be truthful. Honesty and truthfulness are not the same thing. Being honest means not telling lies. Being truthful means actively making known all the full truth of a matter. Lawyers must be honest, but they do not have to be truthful. A criminal defense lawyer, for example, in zealously defending a client, has no obligation to actively present the truth. Counsel may not deliberately mislead the court, but has no obligation to tell the defendant’s whole story.

This is recognized in ABA Formal Opinion 06-439, “Lawyers Obligation of Truthfulness When Representing a Client: Application to Caucused Mediation” (and the opinions cited therein):

Under Model Rule 4.1, in the context of negotiation, including caucused mediation, a lawyer representing a client may not make a false statement of material fact to a third person.  However, statements regarding a party’s negotiating goals or its willingness to compromise, as well as statements that can fairly be characterized as negotiation “puffing,” ordinarily are not considered “false statements of material fact” within the meaning of the Model Rules.

 

This approach is Solomonic. But at the same time from a broader perspective–and beyond anecdote –scholarly studies have shown than lawyers are not trusted. One article opined that “[l]awyers are ranked on par with prostitutes when it comes to trust.”

Moreover, a recent study notes that trust in institutions is falling, with younger people having the least trust:

Around three-quarters (73%) of U.S. adults under 30 believe people “just look out for themselves” most of the time. A similar share (71%) say most people “would try to take advantage of you if they got a chance,” and six-in-ten say most people “can’t be trusted.” Across all three of these questions, adults under 30 are significantly more likely than their older counterparts to take a pessimistic view of their fellow Americans.

One can presume that this finding is equally applicable to lawyers and the legal system.

Current ABA President Judy Perry Martinez has written about “rekindling trust and confidence in our American justice system.” 

It has been suggested that the Model Rules should include a rule on truth.  In his article, “The Truth be Told: The Need for a Model Rule Defining a Lawyer’s Duty of Candor to a Client,” legal ethicist Raymond J. McKoski suggests that “the failure of the Model Rules to impose a duty of candor in client communications rests on the profession’s uncertainty as to what degree of honesty should be required of attorneys in communicating with their clients.”

He cites The Restatement (Third) of the Law Governing Lawyers. Section 16(3) of the Restatement states that a lawyer must “deal honestly with the client.” Comment (e) to §16 explains that this obligation of “honesty” prohibits a lawyer from knowingly making a false statement to a client and further requires all disclosures necessary to avoid misleading a client.

McKoski then proposes possible amendments to the Model Rules:

Rule 1.4 “Communications”: “(c) A lawyer shall not knowingly make a false statement to a client and shall make disclosures to a client necessary to avoid misleading the client.”

and/or Rule 4.1 “Truthfulness in Statements to Others”: “A lawyer shall not knowingly make a false statement of material fact or law to a client and shall make disclosures to a client necessary to avoid materially misleading the client.”

Philosophically, one cannot argue with the concept. But, in practice, would such amendments improve the public’s trust in the honesty of lawyers? This issue is worthy of contemplation.

ABA Center for Professional Responsibility is a national leader in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism and client protection mechanisms.