Telling the Truth About Telling the Truth
Telling the Truth About Telling the Truth
It’s embarrassing, and inconvenient, having to lie about it.
Because you can’t tell the truth on the telephone.
T.S. Eliot, The Cocktail Party (1949)
The joke goes that you can tell a lawyer is lying if her lips are moving. The joke is way too harsh. Most of us have a decent respect for the truth; telling it is just more complicated for us than for some. Lawyers face two built-in constraints.
One has to do with the nature of the largest truths. Whether you believe in Chapter 3 of the Book of Genesis or you don’t, the evidence that we live in what believers call a Fallen World is pretty much unavoidable. That is, we humans routinely: pollute the environment, make war for no good reason, embrace racism, tribalism, and tyranny, engage in torture and rape, exploit each other, and show ourselves to be corrupt, negligent, spendthrift, addicted, and just plain stupid. Ecclesiastes, Hieronymus Bosch, William Hogarth, Thomas Hobbes, Mark Twain and Franz Kafka had it just about right. And the people leading this dance of the damned are usually our leaders: not only our presidents and kings, our ayatollahs and archbishops, but also our governors, our elected representatives, the people who head and man the government agencies before which our clients come suppliant for benefits, and the judges to whom we look for what they call justice. Try telling the truth about the very people it is your professional goal to placate, and about the direction in which those very people are driving our world. It ain’t always easy.
The other constraint has to do with our role. In a Fallen World you have – guess what? – Fallen Clients. Whatever ideals might have guided our paths to law school, the oath we took when we got out was not to champion goodness, truth and beauty, but to advocate for our clients within the constraints laid down by the rules. If we happen to find ourselves, like Superman, fighting for Truth, Justice and the American Way, it is most likely sheer coincidence. There is almost no consistent way as a lawyer to assist only the oppressed, only the justified cause. Not even prosecutors (who must enforce unjust as well as just laws) and public interest lawyers (whose clients are frequently not quite saints) can be so lucky. It was said in ancient times de mortuis nil nisi bonum (speak nothing but good of the dead). We must observe the same rule in speaking of those living persons who happen to be our Fallen Clients, and usually in speaking of those who resemble our Fallen Clients (so-called “issues conflicts”).
Of course we do not lie. Lawyers usually deserve a much better rap than they get in this regard. Rather, given the two compulsions just mentioned, and given the reflexes they instill in us, we are silent where honor and concern would otherwise prompt us to speak. Far too often, we know the truth and let it die unspoken on our lips. It’s not lying, but silence may be worse.
In our hearts, we know this. Our public discourse is choked with lies – and not lies of lawyers’ making, for the most part. In the face of our pollution, our undeclared warmaking, our systems of justice too often staffed by mediocrity, the theft of political power by big money, the culture of corruption and revenge that often fuels law enforcement, the rise of neo-Puritanism that criminalizes other people’s pleasures, the increasing hegemonism of religion in general and the Religious Right in particular, our media that focus inordinate amounts of attention on celebrities, sports and trivia rather than world crises of war, plague, famine, resource depletion, or any of the other problems just mentioned – we desperately need polemics and jeremiads. We know that truth sets us free, that truth is the most powerful thing in the world. And our lives as lawyers give us the opportunity to observe at close quarters many matters most fit for public disclosure and public discourse. But what can we do?
Well, for starters we can let ourselves off the hook to some degree. Nil nisi bonum is the correct rule. We cannot badmouth our clients, except in extraordinary circumstances, and if that means that there are some truths one or another of us cannot tell, then this must be; hopefully others will pick up the slack necessitated by our separate particular client loyalties. Nor can we be too cavalier in attacking our leaders and our policies. The leaders are imperfect humans like ourselves, probably deserving of compassion in equal measure with chastisement. And the policies are almost always compromises among important principles no one of which can be paramount.
But having made that allowance, there remains a wide swath of honesty we can still cut. If we say nothing shocking in our lives, we have not said enough. There is more for lawyers to extol than the triumphs of the triumphant. There is more for us to share than trade secrets. A hole exists in the ozone layer of our discourse. In the transcripts of our professional lives like this publication, too much of the important colloquy is off the record. And we all know it. We need to go back on the record now.
Truth-telling can be a dangerous enterprise, to be sure. But there is also such a thing as excessive timidity. There are rewards as well as dangers. The power of the truth is great, and sometimes awesome. And given the challenges we face as a society, the risks to us individually as well as collectively if we remain silent may be far greater than the risks of speaking out. Only the discussed problem can be properly addressed. So we should not let our hearts be troubled.
Instead, we should acknowledge that there is much to say, and never enough time. And we should be talking. Truthfully, the way lawyers generally do talk, if truth be told.
Copyright (c) Jack L. B. Gohn