Mitchell on Law
Spring 2007WILLIAM MITCHELL COLLEGE OF LAW MAGAZINE SAINT PAUL | MINNESOTA
LYING TO CLIENTS
(Let's be Honest)
Is it ever OK to lie to clients? Mitchell professors address this ethically challenging and often-asked lawyering question.
By Cynthia Miller
When can I lie to clients? That’s the double-bind question students have asked Peter Knapp, professor of law and co-director of the clinic program at William Mitchell. It’s a question that can weigh on the practicing attorney, as well. Yet the politically correct answer—a resounding “Never!”—implies that law, like medicine, has no ethical gray areas.
In his search for a nuanced response, Knapp thought of the analogy of therapeutic privilege, a physician’s right to withhold information deemed detrimental to a patient’s psychological or physical well-being. For instance, doctors exercise therapeutic privilege when they refrain from saying that an illness is terminal or that symptoms might be psychosomatic. While this has sometimes led to malpractice suits, courts continue to uphold the physician’s right.
So, Knapp wondered, should a similar therapeutic privilege exist for lawyers? He began to brainstorm with Visiting Professor Brad Colbert ’85, longtime supervisor of William Mitchell’s Legal Assistance to Minnesota Prisoners (LAMP) Clinic and an assistant state public defender, about “the justifiable professional lie.” They subsequently pulled Professor Nancy Ver Steegh, a family law expert, into the discussion.
The trio embarked on writing an article with two starting points. First, despite the attorney’s duty to disclose, there might be valid reasons why that would be unwise. Second, for clarity’s sake, the uncomfortable word “lies” would cover all deceptive communications, including deliberate omission, misstatement, misrepresentation, and manipulation.
“We all lie in our relationships,” commented Colbert matter-of-factly. “So working from that, is there ever a rationale for lying? It gets dicey when a criminal defendant, for instance, says, ‘Do you believe me?’ If you don’t say ‘yes,’ they hear ‘no.’ You can’t finesse it by saying ‘It doesn’t matter what I believe.’”
Ver Steegh could also imagine times when therapeutic privilege would be pertinent to family law practice. For example, an attorney might decide to withhold triggering information, such as a spouse’s new address, from a volatile client for a couple of days. While that protects the client and isn’t plain lying, it is deceptive. She was also concerned with subtle presentational aspects of counseling, such as manipulative facial expressions or vocal tones, and like Knapp and Colbert, with the issue of seemingly benevolent lies, which might intrude on the client’s autonomy.
All three of the professors were uncomfortable with the paternalistic rationale: “I can tell when my clients want the truth and when they don’t.” On the other hand, they agreed that legal overwhelm is a genuine problem, when the client is bombarded with details, options, and jargon at the start. In such cases, clients might ask
the lawyer to decide, creating another gray area: Should the counselor be trusted to sift the truth, providing reasoned judgment? Or should information and counsel be disclosed in stages, another form of therapeutic privilege?
Knapp said as they worked through examples, the list of appropriate times for lying narrowed, professionally and in clinical practice. Yet the examples didn’t disappear entirely.
Ultimately, the professors believe the response to “When can I lie to clients?” is contextual, since there are no absolutes in law or in life. Their answer could be summarized as: Occasionally. Maybe. But only if you’re convinced it serves the client’s greatest good, not yours, and you aren’t undercutting the client’s autonomy.
Lying mainly appears appropriate when overheated emotions or a pathological mindset put the client at risk of making poor choices. Lawyers, like doctors, shouldn’t have to respect someone’s suicidal tendencies. Since attorneys will constantly confront different situations, they must practice reflection and self-evaluation.
Currently, the article is still in draft form, but the authors foresee it leading to CLE and clinical offerings. Ironically, despite real concerns about appearing to be advocates of lying, the professors’ shared motivation was to be honest with themselves and others in the profession about this shadowy aspect of lawyering.