358. "Lawyers' Spin Undercuts Public Faith in System." USA Today (July 24, 2001) p 13A.
The next time you hear Abbe Lowell, lawyer for Rep. Gary Condit, D-Calif., state that his client passed a lie detector test and fully cooperated with the police, there's every reason to be wary.
Last week, for example, D.C. Police Chief Charles Ramsey and the FBI reviewed Condit's lie detector test -- administered privately by someone chosen by Lowell -- and both dismissed it. D.C. police said it had "no investigative value." Similarly, it reportedly wasn't until Condit's third interview with D.C. investigators that he finally admitted to an affair with Chandra Levy, 10 weeks after she'd disappeared.
But Lowell is not alone when it comes to lawyers' spinning the facts to favor their clients. The same could be said of the lawyer for former New York police officer Justin Volpe, who was charged and later convicted of brutalizing Haitian immigrant Abner Louima with a broomstick in the police-station restroom. He stated that the injuries were the result of a consensual homosexual incident. As eminent attorney Floyd Abrams once wrote, it should not surprise us when lawyers make claims that have nothing to do with the truth. And as Alan M. Dershowitz wrote through his legal maven in his novel, The Advocate's Devil, "In this game, there's only one bottom line -- winning."
For these reasons, we need to fashion reforms to rein in these fast-talking lawyers who are increasingly playing verbal acrobatics with the truth, if we are to ensure public faith in our system of justice.
I'm being too cynical, you say?
Well, to test whether my view of lawyering is indeed too mistrustful, I posed a hypothetical example (based on an actual case) to several legal authorities: Eight women charge that a physician sexually molested them while he had them connected to a wire that he claimed would endanger them if they moved. The defense argues that the women fabricated the whole thing, conspiring to extort money from the physician. No evidence of any kind is presented to support this claim.
Assume, I suggested, the lawyer made up the whole defense; should we allow this? All seven lawyers and legal scholars I approached said lawyers' only obligations are to their clients.
For example, George E. Bushnell Jr., former president of the American Bar Association, put it starkly: "While your report of the sexual-molestation defense on its face is irresponsible, I cannot agree that the rights of the defendant should in any way be changed or modified."
You could argue that lawyers have not only a right but also a duty to do everything they can for their clients. You could also argue that lawyers are already bound by the ethical codes of their profession. And you'd be correct to a degree. For example, if a lawyer knows that his client is about to commit perjury, the lawyer is supposed to stop the client or to alert the court. Also, a lawyer cannot legally enter a plea of not guilty for a client he knows has committed the crime. However, many lawyers circumvent these rules by what is known as "The Lecture." When a lawyer first meets his clients, it's not uncommon for him to warn them not to tell him more than he needs to know.
What's the answer, then?
Abrams believes we should ask lawyers to show less willingness to make certain arguments (e.g., those that could not be true) and greater willingness to view themselves as part of a system of law rather than as alter egos of their clients.
How about, for instance, prohibiting one lawyer from challenging the other side's veracity when the lawyer knows the other side is telling the truth? Or making it at least an ethical offense when a lawyer makes up a theory, for which there is no shred of evidence, to undermine the prosecution?
In one meeting of legal scholars and lawyers, I found few takers for such reforms. Lawyers are paid to help their clients; they have little motivation and fewer incentives to pay mind to other considerations, I was repeatedly told.
U.S. District Court Judge Paul L. Friedman criticized the American Bar Association (ABA) for wanting lawyers to abide not only by their clients' decisions about the objectives of litigation, but also about the means. U.S. Appeals Court Judge S. Jay Plager reported that during an educational conference sponsored by the ABA, lawyers were encouraged to ignore the judge's instructions regarding what they must disclose to a jury.
But those assembled had a constructive idea: They argued that judges could more aggressively challenge a defense lawyer or district attorney when they suspect them of making up something. This action, the group thought, would deter lawyers on both sides from similar behavior in the future. Even if judges merely noted in their verdicts when a lawyer crossed the line, we would be on the way to some tightening of the rules of the game.
True, public interest in justice should not take precedence over a defendant's rights. But it should not be wantonly ignored, either.
Amitai Etzioni, most recently the author of The Monochrome Society, is a member of USA TODAY's board of contributors.