Mark Levison, The Levison Group
As we roll into the new year, I am excited. Every new year offers its promises, problems and unknowns. For lawyers, 2016 is particularly exciting. It will be a year of political campaigns, and lawyers will be playing a large role, both as candidates and as campaign advisors.
This cycle’s presidential campaign has been turned on its head by a “straight talking” businessman, turned TV star, turned the new “anti-politician.” It’s hard not to have an opinion about Don Trump. Mine is he is engaging, charismatic, insecure, successful, entertaining and dangerous. There is nothing new about an “anti-politician” in the political arena. American history is full of them. Consider the diverse list of characters from Ralph Nader to George Wallace, Ross Perot, Jesse Ventura or Arnold Schwarzenegger—none of whom followed the typical lawyer politician pathway to the electorate.
One of Trump’s most attractive qualities is he is plainly unscripted and appears to be honestly telling us what he thinks. Of course, convincing listeners that you believe what you are saying is what makes a good actor. Some public skepticism is not unreasonable. However, the longer he campaigns, the more spontaneous and relaxed he seems. Trump appears to be entertaining not just us, but himself as well.
That’s a nice quality. I wonder when he goes home at night if he says to wife Melania, “You will never believe what I said today.”
Trump’s current success is grounded in the fact that he is not tethered to the political system. Being a straight talker, he tells us he can be trusted because he is not beholden to powerful political interests that have lobbied and bought the souls of his opponents. There may be some truth to that, but there’s another way of looking at who the truth tellers are in America. So, considering lawyers, politicians and businessmen, which group tells the truth most often? The answer may be surprising.
The “honesty spectrum” has very little to do with the personal integrity of individuals. It has to do with the checks and balances, or lack thereof, built into particular professions. Lawyers, unlike virtually any other group, have a code of conduct and ethical behavior. Truth telling is drilled into them, starting in law school ethics courses, continuing with morals standards for entry into state Bars, followed by a lifetime of monitoring through enforcement by peers, the judiciary and various disciplinary bodies governing lawyer conduct. If a trial lawyer is not truthful, if you can’t believe what he or she says, the attorney will lose credibility with the judiciary, become a less effective advocate, and as a result his or her practice will suffer. Truthfulness may or may not be a personal trait that draws individuals to the legal profession, but it is a generally required trait due to the checks and balances inherent in the system. Of course, it is sometimes said by the uninformed that lawyers are taught to lie. In actuality, lawyers are taught to recognize the line between truth and lie, and to never cross it. Creative advocacy is the opposite of, not an example of, untruth.
So, what about politicians? Probably due to the pressures of their profession they aren’t as honest as the typical lawyer needs to be, but are more honest than the typical businessman has to be. Unlike the rest of us, if politicians aren’t truthful, there are three external factors ready, willing and able to expose their lies. The first check on politicians’ truthfulness are the opponents that will campaign against them. The second check is the press. The ultimate check is rendered by the electorate. Can politicians be dishonest and get away with it? Of course. But it takes a lot of effort and usually a lot of money to overcome their opponents, and the media, to convince the electorate to vote for them despite their lies. Remember what a log-splitting lawyer, turned politician, told us a long time ago, “You can fool all of the people some of the time, and some of the people all of the time, but you can’t fool all of the people all of the time.”
A common criticism of today’s politicians is they use their positions to economically profit and that they bow to pressures from interest groups. All that is generally true and an increasing problem, but they nevertheless still fall in the middle of the truthfulness spectrum between lawyers and businesspeople.
As a young man, I was a campaigner and speech writer for politicians. Senator Stuart Symington, a one-time presidential primary candidate, sat me down and said, “Mark, I know you are interested in running for political office. Here’s my advice: Don’t do it unless you make a lot of money first.” Symington, a well-healed East Coast blue blood, who had run Emerson Electric in Missouri before being tapped by President Truman as the first Secretary of the Air Force, warned me that without a lot of money I would be subject to pressures from contributors who would expect me to “vote their way.” Symington, who had confronted Joseph McCarthy in the Army/McCarthy hearings, went on to warn me about the characteristics of demagogues. A particular target of Symington’s concern, at that time, was then Vice President Spiro Agnew. Agnew repeatedly chastised those who disagreed with him as “radical-libs,” thereby attempting to erase the very important difference between liberals and radicals. The Senator’s warnings seem as relevant today as they did then.
Now consider businesspersons. It is a positive that an outsider can achieve success in our political system. Purportedly, General Dwight Eisenhower had never cast a vote for president until he voted for himself in 1952! There are many examples of truthful outsiders. In fact, it is said that our first president, military man General Washington, “could not tell a lie.” However, whether it is Douglas MacArthur, Ross Perot, Enron’s Kenneth Lay, G.E.’s Jack Welch, Steve Jobs or Donald Trump, there is no widespread systematic honesty monitor for those outside of the political arena. Further, the raison d’être for a business person is the accumulation of wealth, not Scout badges.
Being a lawyer for businessmen, I have represented wonderfully ethical and honest individuals. I have also represented, and witnessed, individuals for whom success in business was the goal, and truthfulness not much of a concern. Just because a candidate comes from outside the typical political pedigree, doesn’t mean they are going to be more truthful than candidates who have risen through the ranks of legal ethics and endured the crucible of contested elections and media scrutiny. The thought that specific “straight talking,” non-politicians such as Trump, Carson or Fiorina are going to be more truthful than traditional politicians might be correct. It might not. We would all do well to remember the time honored legal maxim grounded in products liability law: Let the buyer beware!
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Under Analysis is a nationally syndicated column of the Levison Group. Mark Levison is a member of the law firm Lashly & Baer, P.C. Contact Under Analysis by e-mail at comments@levisongroup.com
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