OCBA UPDATE: The quest for truth

“The man who lies to himself and listens to his own lie comes to a point that he cannot distinguish the truth within him, or around him, and so loses all respect for himself and for others.”1

In today’s era of “fake news” and partisan “spin,” it is often easy for the public to forget that the American judicial system is not about winning; it is an avenue to ascertain the truth. And so, as my opportunities to write these monthly articles wane in the final months of my presidency, it happened upon me to write about that for which we are supposed to be in search: The Truth.

As a bar association presently made up largely of litigation-minded attorneys, many of us advocate zealously for our clients. And the end goal of that advocacy in the American legal system is that a fact finder determines the factual truth and thereafter the required legal outcome.2 Often I see attorneys angered by what they perceive to be (shall we say) a less-than-candid presentation to the court by their opponent. Where is the balance between truth and the advocate’s duty in our system?

Wayne State University Law School Professor Peter Henning authored a scholarly article on this topic 12 years ago.3 Professor Henning noted the conflict between duties as an officer of the court and an advocate loyal representing the client: “[f]inding the truth is the object of the judicial system, but is not the governing principle of the lawyer.”4 Henning suggested that the concepts of “truth” and “honesty,” while related, are not identical, truth being “focused more on determining the existence of a historical fact” and honesty “focus[ing] on the accuracy and authenticity of the lawyer’s current assertions on behalf of the client.”

Another author offered a viewpoint on honesty, truth and attorneys, and in doing so, took a broader view of the concept of truth:

“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.”5

This view has the ability to create a fine line that can be inadvertently crossed.

As a practitioner of criminal law, I certainly understand the concept of not necessarily telling the absolute truth to a jury in my opening statement.6 The criminal arena is slightly different because the government is the plaintiff, and the Constitution places certain burdens on the prosecution and confers benefits upon the accused. Thus, the government must prove the guilt of one presumed innocent, and it is the defense attorney’s obligation to the client to challenge the proofs (no matter his/her belief about the case).7

That being said, I think (or hope) that we all agree with Henning that “[t]he lawyer’s conduct as an advocate cannot include the use of dishonest means that affect the court’s ability to oversee a search for truth.”8 Certainly, we cannot suborn perjury or suggest the unhelpful witness take a sudden vacation to Bolivia. But what of the actual statements a lawyer makes? What about the judge asking a simple series of questions about a motion, and the lawyer who works very hard to avoid giving the potentially unhelpful answers?9

The Michigan Rules of Professional Conduct speak to the concept of truth in a number of ways, but never in the sense of an affirmative duty to tell it. Instead of simply saying “tell the truth,” the rules prohibit certain non-truthful behaviors.10 I suspect it says something about a lawyer if he or she is spending more time wondering whether an untruth is “material,” rather than whether to correct the record.

Henning’s solution is the lawyer must have a “... personal characteristic ... that reflect[s] integrity and trustworthiness,”11 and in practice a lawyer whose “... expressions are both accurate and authentic.”12 But even Henning’s view returns to the concept of truth: “[a]n accurate statement is one that is truthful and does not intentionally deceive or mislead another person [and] ... [a]n authentic expression is one that comprehends fairly the lawyer’s (and in certain circumstances the client’s) intentions.”13 I think that more than anything, Henning’s detailed analysis shows just how complex this issue really is. That other words (such as candor, sincerity, upright and/or straightforward) fit equally well shows just how much thought each of us ought to give to how we conduct ourselves as advocates.

Perhaps the best way to describe the advocate’s duty is that of a “straight shooter.” Such a definition does not require abstract thought. It’s a “know-one-when-you-see-one” analysis that brings to mind concrete examples in our legal community. In the system’s search for truth, the question for you is how you conduct yourself in the effort to get there. Hopefully, being a straight shooter will remain at the forefront of your endeavors.
————————
Footnotes
1Fyodor Dostoyevsky, “The Brothers Karamazov,” 1880.
2The goal of some civil lawyers is to eliminate the question of material fact, so as to allow the court to reach the appropriate outcome without a fact finder.
3Peter J. Henning, “Lawyers, Truth, And Honesty in Representing Clients,” (2006), reprinted in Notre Dame Journal of Law, Ethics and Public Policy, February 2014, Volume 20, Issue 1, Article 8.
4Id. at 214.
5Matthew Frederick, “101 Things I Learned in Law School,” 2013.
6You are not going to hear me say, “Of course, he’s guilty; this is just an exercise of his Fifth and Sixth Amendment rights ...”
7The Michigan Rules of Professional Conduct reflect this. MRPC 3.1.
8Henning at 219.
9Or the process of seeking an expert witness who will tell the truth while fully supporting the position of one side over the other. The Michigan Supreme Court came to the conclusion that physician affidavits were party admissions. Barnett v. Hidalgo, 478 Mich 151, 479-480 (2007). Such a ruling might be interpreted by the less-informed as an admission that experts are nothing more than an advocate-witness tied to the party’s need for a particular opinion.
10Lawyers shall not make false statements. MRPC 4.1. Lawyers must only bring claims and defenses that are not frivolous. MRPC 3.1. Lawyers shall not make false statements to the tribunal or offer evidence known to be false. MRPC 3.3. A lawyer shall not falsify evidence or offer false testimony. MRPC 3.4. A lawyer shall not make false statements about judges. MRPC 8.2. Lawyers must not engage in dishonesty. MRPC 8.4.
11Henning at 220.
12Id. at 221 (emphasis in original).
13Id. at 221-222.
————————
Gerald J. Gleeson II, of Miller, Canfield, Paddock, & Stone PLC, is the 85th president of the Oakland County Bar Association.