In a Legal Spectator column titled Truth, Falsehood, and the Law, legal legend Jacob A. Stein says the Martha Stewart case got him thinking about how the law deals with lying.
P.P.P.S. Whether you agree with all the conclusions or not, Walter Olson‘s book The Rule of Lawyers is an important part of any library focusing on law, lawyers and American society. It’s now out in a softcover edition (for $10.47 at Amazon.com), with an Epilogue in which Walter discusses “major developments of the last year such as the fast-food litigation, the enactment of comprehensive tort reform in Texas, and the surprise move by the ABA to support reform of asbestos and class-action litigation, as well as the latest twists in gun, tobacco, fen-phen and lead paint courtroom battles, among others.”
May 9, 2004
Good Lies, Bad Lies
[not a golf story] This month’s Washington Lawyer magazine (May 2004), from the D.C. Bar, has two interesting pieces focused on truth, lies, deception and the law(yer).
“What was done may be illegal, immoral, embarrassing, or any combination of the three. The effort to conceal converts something that may be of no great consequence into something very serious, a felony.”
Stein then explains how the U.S. Code treats lying — as perjury, grand jury perjury, and the far broader crime of false statements to the government (in Title 18 Sec. 1001). It’s a nice review. What particularly attracted our attention, though, is Stein’s discussion of lie detectors — not as evidence, but as proof of the basic moral nature of human beings:
Lewis Thomas, the distinguished physician and author, says the lie detector gives him hope that the world is all right despite the overwhelming reasons for discouragement. The lie detector proves that we cannot tell a lie, even a small one, without setting off a smoke alarm deep in the brain, resulting in the sudden discharge of nerve impulses and neurohormones. This is recorded by the lie detector gadgetry along with other changes including the heart rate and the manner of breathing.
Thomas says this is good news. It proves we are a moral species designed to be truthful to one another. We have evolved beyond guiltless mendacity, as is the case with animals who lie to one another all the time. Biologically speaking, it is healthy for us to stop lying to one another, whenever possible.
Stein’s evocation of Dr. Thomas sent pyj scurrying — okay, Google’s search spiders scanning for us — to find another great quotation by the noted author:
The second notable article from May’s Washington Lawyer is the Speaking of Ethics column, by Ernest T. Lindberg, on “Misrepresentation by Government Attorneys as Part of Official Duty.” It is a good summary of the recent D. C. Ethics Opinion 323 (30 March 2004) on that subject, and its treatment in other states. As Lindberg reports:
“Lawyers employed by government agencies who act in a nonrepresentational official capacity in a manner they reasonably believe to be authorized by law do not violate Rule 8.4 (misconduct) of the D.C. Rules of Professional Conduct if, in the course of their employment, they make misrepresentations that are reasonably intended to further the conduct of their official duties.”
I’m happy to say that, just as the law is not an ass (usually), neither is the D.C. professional code of ethics. It would indeed have been asinine to come to any other conclusion. [See Spying and Lying, ABA ejournal, April 23, 2004, for further discussion of the issue, including whether private attorneys may ethically act as “testers.”]
P.S. Speaking of lie detectors: congratulations to Cory Amron, who has been named Woman of the Year by The Women’s Bar Association (WBA) of the District of Columbia. She is currently a partner in the technology and intellectual property group at Vorys, Sater, Seymour and Pease LLP. However, in her first week or so of law school, Cory was already quite astute at detecting b.s. and deception — i.e., when a certain 2L Yabut tried to smoothly strike up a conversation at the HLS law library.
P.P.S. Ken Lammers has done it again — gotten first billing on the law.com NewsWire In Brief column (05-10-04) — this time for a delightful weblog posting How to Tell if Your Have a BAD Lawyer. Folks are starting to wonder if Mrs. Lammers’ maiden name is Patel.
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