My idealism is showing again. I think lawyers should be honest. Honest with clients. Honest with one another. Most of all, honest with the court. Honesty means different things to different people. If asked, nearly everyone would say they are basically an honest person. Yet, this clearly is not so.
Let’s look at this on a ‘truthfulness continuum’. All lawyers spin the truth to some degree or another. All lawyers will present and highlight facts supportive of their client’s position. They will avoid admitting hurtful facts when possible and ethical. This is the ‘best possible light’ range. When hurtful facts must be admitted, they will present them in the least harmful way as long as that way is a reasonable inference one can derive from the facts. I wish this is where we all stopped on the truthfulness continuum.
However, many lawyers go farther down the continuum. The next area on that range is the ‘grain of truth’ area. Here, as long as there is a grain of truth to what the attorney is saying, they feel free to engage in creative license with the truth. For example – the opposing party smoked marijuahna two or three times in the last year while out and the children were home with a babysitter. This suddenly becomes – the opposing party is a full blown drug addict who is endangering their children.
Then we get down to the other end of the spectrum. I wish that only a few lawyers hang out down here but sometimes it seems awfully crowded. This is the ‘say it enough times and it becomes true’ section. Here, the lawyer feels justified in engaging in wild speculation. As long as their client is willing to say something is possible, the lawyer will treat it as fact. For example – their client has some concerns that the opposing party might have left their child in the care of someone that could possibly mistreat that child, even though another adult was likely present. This becomes – the opposing party routinely leaves their child unsupervised with a known child molester.
The middle section, in my mind, is ethically questionable and personally distasteful. I do not practice even there and will tell prospective clients that up front. That last range of wild speculation, I believe, is unethical and immoral. I like to believe that judges will recognize the attorneys who practice in that range and no longer grant them credibility. Yes, I like to believe that. Those attorneys seem oblivious that they quickly get a reputation for those tactics among other lawyers even if the judges do not catch on and, in the long run, reduce their effectiveness because the other attorneys will not trust them enough to engage in negotiations.
It can be very disheartening when engaged in a legal contest with one of those wild speculation lawyers and see them winning. It seems human nature that if you hear something is true often enough, you will believe it – sometimes it is true and sometimes not. Marketing professionals entire professions are based on this concept. This kind of dishonesty is at the heart of what makes justice elusive. They are also the source of all the bad lawyer jokes and poor reputation of this honorable profession.