Born liars

Times Online, August 11, 2006

For many years, I have agonised over the extent to which it is permissible, as a lawyer, to lie. As a mere civilian this issue does not arise, still less does it perturb me in my guise as freelance hack (when lying is, of course, a sine qua non). But as a lawyer, an identity I am unable to escape, the problem returns with the ineluctability of sunrise. As each day dawns, a lie might pass my lawyer’s lips, and yet when it does, what then? Should I confess all to the Law Society and thank them when they strike me off the roll? Or cross my fingers and hope for the best? Or even stop lying?

Not that I lie often. If I do, it is only in the course of duty, another aspect of my life that it is impossible to avoid. There is always a duty, lurking around the next corner, waiting to ensnare me. And so it was that I found myself last week in the pleasing environs of The Gurnard’s Head, a hostelry in West Penwith, an area of Cornwall of astonishing beauty that, incidentally, formed the backdrop to the bloodletting in Sam Peckinpah’s Straw Dogs.

Professional obligations of confidentiality prohibit me from disclosing the precise reason for this odyssey to the far west of Britain, though it is true to say that I was not on holiday. I was sitting in The Gurnard’s Head contemplating a conundrum that, sadly, is impossible to divulge. Suffice it to say that it involved a person with whom I enjoyed, once upon a time, the special bond that is the lawyer-client relationship. Just as I was wondering what on earth to say to him, given the content of his breathless request to meet me at short notice, the answer revealed itself. For there, on a shelf, was a book, and in it, an essay by none other than Charles P. Curtis.

For those who have never heard of this revolutionary among legal thinkers, I can tell you that he wrote a remarkable treatise entitled "The Ethics of Advocacy" that first appeared in the Stanford Law Review (no. 4) in 1951. Do not expect me to tell you how he came be in The Gurnard’s Head, but let me instead convey this from said essay: "One of the functions of a lawyer is to lie for his client… A lawyer can be as truthful as anyone, but not as ingenuous." Mr Curtis was clearly a cat among pigeons, for he goes on thus: "A lawyer is required to be disingenuous. He is required to make statements as well as arguments which he does not believe in."

I was dumbstruck. Here was another lawyer, albeit one writing nearly 60 years ago, saying: "Relax! It’s OK to lie! In fact, it’s your calling!" Mr Curtis cited a specific example of when it is acceptable to lie for one’s client, as follows: client and lawyer have lost contact, but for many years enjoyed a mutually satisfactory professional relationship. One night the client materialises on the lawyer’s threshold, to confess that yes, he is the man responsible for a series of bank robberies that have gripped the nation. The lawyer greets this news with regret, but the quondam client has decided to mend his ways. "I intend to give myself up," he says. There is just one problem: he needs a couple of days to sort out a few personal matters before doing so.

In the interim the police arrive at the lawyer’s office. "Has X been here?" they ask, for word of his reappearance in town has spread. The lawyer says that no, X has not been to his office; after all, as Mr Curtis says, "the further [a lawyer’s] statements tend to the particular, the more truthful he may be, indeed must be, because no one appreciates the significance of the particular better than a lawyer." And of course it is true: X has not been to the lawyer’s office, only to his home. So far as Mr Curtis is concerned, the lawyer’s obligations to the authorities stop there, for remember: "One of the functions of a lawyer is to lie for his client." Indeed, the lawyer has no business in telling the police that he has had contact with X, wherever it may have occurred, albeit that knowledge of this is plainly what the police most earnestly desire.

I put down the book and breathed a sigh of relief. Whatever my former client had to tell me, I didn’t have to tell anyone else. But I am still plagued by uncertainty. It is clearly acceptable to lie on behalf on one’s client, but what about timesheets? Is it permissible to record a one minute phone conversation with one’s client as a unit of 15 minutes and bill him accordingly? Surely this very act is a lie, and not one that works to the client’s benefit. Perhaps Mr Curtis should have omitted the concept of the client from his essay, so that its key pronouncement reads thus: "One of the functions of a lawyer is to lie."