Lawyers behaving badly: a reprise

To conclude, I want to return to the cases I began with - cases of contrived ignorance by lawyers. As a law teacher, and in particular a teacher of legal ethics, these cases seem particularly pressing to me.

Should the law penalize willful ignorance by lawyers

of their clients' deceits?

We’ve seen that the formal rules of legal ethics, unlike criminal law, contain no willful-blindness doctrine. Except in certain specialized circumstances, a lawyer is under no obligation to press her client for knowledge or to corro­borate what her client tells her.^[434] If she uses a “Don’t ask, don’t tell” inter­viewing strategy, and her client subsequently commits perjury, the lawyer will not be charged with knowingly putting on perjurious testimony. Here, willful blindness does not equal knowledge. The question is whether it should.

The approach developed in this chapter would ask about our lawyer’s mental state toward possible client perjury at that moment in the interview when she orders her client not to tell her too much. In my experience, many lawyers expect clients to perjure themselves when the stakes are high, sug­gesting that the “Don’t ask, don’t tell” lawyer is at least reckless toward future perjury, and, perhaps, willful.

Perhaps, then, legal ethics rules should be modified so that willful and knowing ignorance count as knowledge. Doctrinally, adding a willful- blindness doctrine to legal ethics would involve nothing more than a minor change in the terminology section of the Model Rules of Professional Conduct. Where the Model Rules now state that “ ‘knowingly,’ ‘known,’ or ‘knows’ denotes actual knowledge of the fact in question,” the amended terminology would add: “or conscious avoidance of actual knowledge of the fact in question.”

Minor as the change appears on the printed page, it has the potential to transform the nature of the client-lawyer relationship, and thus of legal practice, if it were honestly enforced. Most obviously, adding the willful- blindness doctrine to ethics rules leaves great uncertainty about how much inquiry into a client’s case a lawyer must undertake to avoid disciplinary action. Perhaps the doctrine would be read narrowly, so that “conscious avoidance of knowledge” means only that the lawyer consciously refrained from asking questions that, but for the fear of discovering guilty knowledge, she would obviously have asked in order to help prepare the case. But even then it is unclear what questions this obligation encompasses. For example, does the doctrine require a criminal defense lawyer to ask every client if he did the acts alleged? Faced with uncertainties, the fear of liability might provoke lawyers to ratchet up the level of inquiry, which carries enormous potential for damaging the elements of trust essential to a successful client­lawyer relationship. Moreover, to determine how much due diligence a lawyer actually did undertake, or whether the lawyer employed impermis­sible “Don’t ask, don’t tell” interview techniques, disciplinary authorities would have to scrutinize privileged and confidential conversations between attorney and client - perhaps all their conversations.

Sophisticated clients with something to hide would have reason to actively frustrate their own lawyers’ factual investigation of their case, because they would know that their lawyer is ethically required to ferret out guilty infor­mation that under some circumstances she might be ethically required to disclose. The worried client may frustrate the lawyer’s investigation even of innocent facts that the lawyer needs, because the client does not know that the facts are innocent. For the lawyer’s part, a lawyer who fears liability for consciously avoiding knowledge, and who in any case needs information to represent her clients competently, may be forced to play a cat-and-mouse game of sleuthing against her own evasive clients. Adding to the tension is the fact that in many cases the client is paying by the hour for his lawyer to investigate him - and the more the client tries to frustrate the investigation, the more time-consuming and costly it becomes. The client retains the lawyer because he must, while viewing the lawyer askance, with a certain measure of dread and resentment. The client fears, sometimes rightly, that he would be better off with no lawyer at all.

All of these concerns have a familiar ring to them: they sound very much like the bar’s standard objections to proposals that would weaken con­fidentiality in the name of truth. Invariably, the bar springs to the defense of confidentiality and trots out a parade of horribles if confidentiality is weak­ened - damage done to the client-lawyer relationship, clients evading their lawyers’ questions for fear that the lawyer could be compelled to disclose damaging information, lawyers being left out of the loop in business deci­sions, clients hiding innocent information from their lawyers because they don’t know that the facts are innocent. As William Simon has recently argued, none of these objections is very persuasive, for two fundamental reasons.

They may. The willful-blindness doctrine, which requires lawyers to ask clients hard questions that they would otherwise leave unasked because they prefer not to know the answers, will elicit evasive tactics only from clients who believe they have something to hide. If the aim is to diminish the amount of client crime and fraud by making it harder for dishonest clients to enlist lawyers in their efforts, that may be all to the good.

On the other hand, the number of clients who believe they have something to hide may be very large, and they are not all crooks. When disputes lead to litigation, all parties may have done something discreditable or embarrassing; and when clients enter into business transactions, all sides may be concealing weaknesses or defects in their wares. None of them will appreciate a doctrine that they fear will require their own lawyers to ferret out their dishonesties and then resign or report them. This result is much more alarming than rules weakening confidentiality, under which the client with a secret blemish at least has the option of withholding information from the lawyer, who can remain passive and do the best she can with whatever information the client gives her. Under the willful-blindness doctrine, the lawyer cannot remain passive. Her license is in jeopardy unless she actively investigates the client.

The behavioral assumptions of this scenario are few and harmless. It assumes only that clients whose lawyers are investigating their embarrass­ments will try to hide the ball, that lawyers who face professional discipline if they avoid knowledge will feel impelled to investigate their clients, and that neither lawyers nor clients will like each other very well while all this is going on.

No doubt some of these problems could be solved. And perhaps the gain in preventing lawyers from assisting client fraud is worth disrupting the client­lawyer relationship as we now understand it. At the very least, however, we should be extremely cautious about affixing a willful-blindness doctrine to legal ethics. The Law of Unintended Consequences looms large.

Miriam's case, or, the messy morality of “Don't ask, don't tell”

Suppose, then, that formal legal ethics doctrine remains as it is today. The argument developed in this chapter tells us that willful blindness is morally equivalent to recklessness, or knowledge, or even willfulness, depending upon the lawyer’s motive in avoiding knowledge. In that case, should the good lawyer avoid “Don’t ask, don’t tell” strategies even without a legal doctrine telling her to do so?

That is the conclusion toward which the argument points us. If, for example, a client commits perjury, most states’ ethics rules require lawyers to disclose it to the court if the client insists on standing pat. In most cases, I believe, that is the morally right result.^[436] If the lawyer avoids her disclosure obligation by arranging not to know that the client’s story is false - the “Don’t ask, don’t tell” strategy - that is morally equivalent to knowingly (or recklessly, or willfully) failing to disclose known perjury.

There might, nevertheless, be exceptional cases in which the morally troubling consequences of knowing too much outweigh the duty to avoid “Don’t ask, don’t tell” strategies. An imaginary example will illustrate the point.^[437] Consider a political asylum case involving a political activist - let’s call her Miriam - who fled to the United States from a dictatorship. Miriam’s asylum application is denied, which means that to avoid deportation she must prove her case in an immigration court. She hires a lawyer, and tells him her story. She had been imprisoned for two months by the political police in her home country because of her dissident activities.

Miriam’s lawyer sets about documenting the case, because he must prove to the judge that she truly was persecuted at home. He quickly confirms the essential details. Fortunately, Miriam brought a birth certificate proving her identity, and she saved newspaper clippings from her home country that identify her as a political activist. Furthermore, Amnesty International reported on her arrest and imprisonment at the time. She even has a dated document showing when she was released from prison; and the Amnesty report gives the date she went in. A friend of Miriam’s who moved to the United States a year before her will testify that Miriam phoned him from her home country when she received the death threat. So far, so good. Miriam has a powerful case for political asylum. A psychiatric examination finds symptoms of post-traumatic stress disorder in her, consistent with her terrible experiences in prison.

In the initial interview, Miriam mentioned that her brother, who has already won asylum, lives nearby. The lawyer asks her to arrange an inter­view with the brother, who can corroborate her story. Suddenly, however, Miriam becomes evasive. Her brother is very busy, Miriam tells the lawyer; he is studying for his college exams. In any case, she hardly ever speaks with her brother. And she is sure that her brother will not want to talk with the lawyer. As she says these things, Miriam seems flustered and alarmed; she won’t look the lawyer in the face. He notices tears in her eyes; then she gets angry. What is going on?

Many things are possible. Maybe her PTSD is causing her strange reac­tion. Maybe she had a fight with her brother. Maybe her brother fears that if he testifies, the government will vindictively try to reopen his own asylum case. Or maybe he doesn’t really have asylum, but is undocumented. Maybe, just maybe, he really is studying for his college exams.

But there is a worse possibility. Could it be that Miriam doesn’t want the lawyer to speak with her brother because the brother won’t corroborate Miriam’s story? The lawyer has already documented the essentials. But perhaps she exaggerated some things. What if, despite her friend’s testimony, the police never threatened her with death? Or what if she was never raped or beaten in prison, but said she was because someone (wrongly) told her that otherwise she wouldn’t get asylum? The lawyer has seen it happen: refugees often get bad legal advice from other refugees. If so, her lie was under­standable. She comes from a country where it doesn’t pay to tell the truth to the government; her persecution was genuine; and everything her lawyer has learned convinces him that her peril if she is sent home is all too real.

What should the lawyer do? Immigration judges have discretionary power to turn down asylum applications if they doubt the credibility of the asylum­seeker; and this particular judge is less sympathetic to asylum-seekers than most. To insist on interviewing Miriam’s brother, or even pressing Miriam on the issue, runs the risk of learning that parts of her story are untrue. In that case, the lawyer is ethically bound to retract court filings containing the false details. Doing so, however, would dynamite Miriam’s credibility, even though the details aren’t essential to proving her case; and a case that Miriam deserves to win is lost, perhaps at the cost of her life.

The alternative? Willful blindness - break off the investigation, elect not to interview the brother, go with the story that’s already in the application and is well documented. It’s almost certainly enough to win her case. I suspect that most lawyers would choose this alternative with scarcely a second thought, and the rules of legal ethics clearly permit it. But the theory that I have been elaborating counsels that such willful blindness is morally indistinguishable from knowingly (or recklessly) going along with Miriam’s deception - if deception is what it is.

I know of no easy way out of the lawyer’s dilemma, but in Miriam’s case I accept the willful-blindness alternative. The reason is that in Miriam’s case, in which telling the truth might defeat justice, and the stakes are enormous, even a lie might be morally excusable. It is a good principle to require candor to the court from lawyers, but even good principles have exceptions.^[438] If a lie to save Miriam’s life would be morally excusable, then why not avail oneself of willful blindness, which doesn’t force the lawyer to lie and doesn’t violate any rules?

Of course, this is moral loopholing, but here I think that there is a sound reason to indulge in it. In part, no doubt, lawyers choose willful blindness over morally excusable (but unlawful) lying to spare themselves the possi­bility of professional discipline. But even when there is no realistic chance of being caught, they still prefer willful blindness over morally excusable lying. That is because it matters to them that in legal ethics willful blindness is permissible and lying is not. Abiding by their rules of professional ethics is important to most lawyers’ sense of professional identity. A lawyer who knew that Miriam’s asylum application contains falsehoods might well withdraw it, even where going along with the false submission is morally preferable to the truth. Paradoxically, in Miriam’s case, the lawyer should prefer willful blindness to knowledge because willful blindness might spare him the temptation of wrongfully making her tell the truth. Earlier, we observed that people engage in willful blindness to spare themselves moral dilemmas. Exactly that dynamic is at work here - only in this case sparing oneself a dilemma is the right thing to do, not because one might give in to the temptation to break a formal ethics rule, but because one might give in to the temptation to obey it. Breaking a rule of professional misconduct is a Rubicon many lawyers refuse to cross, even when it is the right thing to do. Availing themselves of the loophole that contrived ignorance provides enables them to do the right thing without crossing the Rubicon.

Just call me an ostrich. But on this issue I am an unrepentant ostrich, because I don’t think that the misdeed of putting on a fundamentally truthful case that may have a few unimportant false details - which the lawyer does not know are false - really is a misdeed. And that allows me to retain the conclusion that as a general rule, lawyers should avoid willful ignorance of inconvenient knowledge, just as everyone should, although this general rule has exceptions in extreme cases like Miriam’s.

The fact that the general rule has exceptions should not deflect us from the moral importance of the rule, which takes away an excuse lawyers contrive for themselves when they have no reason more exalted than not wishing to have awkward confrontations with paying clients. In my view, the most inexcusable form of lawyer willful ignorance occurs when lawyers paper questionable deals for questionable clients because the price is right. A banker recollects that in the Roaring Eighties “for half a million dollars you could buy any legal opinion you wanted from any law firm in New York.”^[439] The ethics rules prohibit lawyers from knowingly counseling or assisting a client in fraud, but if there’s no “due diligence” duty to investigate the client and no willful-blindness doctrine, it becomes too easy for lawyers to evade the rule by evading the facts. Surely, a good lawyer should regard it as her duty to learn the facts before closing a deal.

That leads us back to Joseph Hutner and the computer crooks. We left Mr. Hutner figuratively clamping his hands over his ears and running out of the office. What happened next?

Hutner’s law firm retained a pair of legal ethics experts, and made it clear that the firm hoped it wouldn’t have to fire or blow the whistle on its way­ward client. The ethics experts were only too happy to oblige. They advised that the law firm could not reveal the client’s past frauds, and could continue to close deals for the computer company, provided that steps were taken to detect dishonesty. In fact, the experts cautioned, if the firm stopped repre­senting the computer company it would signal that something was amiss, and that would violate client confidentiality.

Unfortunately, willful ignorance seems to be habit-forming, and the law firm’s monitoring of the loans was timid and easy for the resourceful crim­inals to evade. Some evidence suggests that the firm wanted to know as little as possible about the uprightness of the loans it was closing, because it didn’t want to part ways with the client. As a result, the firm closed another $60 million in crooked loans for the computer company. When the lawyers dis­covered the new frauds, an ethics farce ensued. Their ethics experts advised that these new frauds had now become past frauds protected by the con­fidentiality rule. At this point, Hutner’s firm decided that it was finally time to resign. The ethics experts sternly admonished that the firm should keep strict confidentiality while it turned the client over to another law firm. As a result, the new law firm proceeded in honest ignorance to close $15 million in fraudulent loans for the crooks before the plot finally unraveled. First farce, then tragedy. Hutner’s law firm paid $10 million to defrauded lenders to settle lawsuits.

It’s not a happy ending, but perhaps it’s an edifying one. The law firm had two experts’ opinions attesting that it had done what the ethics rules required, but it was nevertheless prepared to pay millions of dollars not to have its willful blindness put before a jury. Perhaps that tells us something about what we really think of contrived ignorance as a moral excuse.