Make no mistake. I’m caught between a rock and a hard place. And whatever the outcome, neither me nor my client is going to be happy. Damn those ethical rules!
Lawyering ethically isn’t as easy as one might think. You see, two competing principles govern attorneys’ behavior. On the one hand, rules of professional conduct preclude us from promoting or permitting perjury. On the other hand, we’re required to represent our clients zealously.
Accommodating both concepts means walking a fine line. When I’m evaluating clients’ cases for the first time, I have to state the governing law and then massage the most helpful details from the clients, without putting words in their mouths. I can’t and won’t encourage people to invent facts which establish the defense or claim I’ve described.
Usually, I employ hypotheticals when interviewing new clients or when preparing them to testify. I tell them that the law provides “x,” so if the facts are “y” and “z” those requirements will be satisfied. From there, it’s up to them to recall whether their particular situations fit the standards I’ve related.
That’s the method I used when agreeing to defend “John” in a lawsuit and when preparing him for his deposition. For reasons soon to be obvious, I’ll omit any particulars about him or his case. All you need to know is, while under oath at his deposition yesterday, he flat out lied. He said things diametrically opposed to the information he’d conveyed when we first met and during our preparation process.
At the day’s end, I pulled John aside and, as calmly as I could manage under the circumstances, asked him to explain why he’d perjured himself. He matter-of-factly replied: “Because you told me to.”
So much for calm: “Whaddya mean, I told you to?! I never said you should lie!!!”
“Well, not in so many words,” he replied. “But when we went over my main defense, and you explained again how the law works and the kind of facts that fit, you winked.”
As I belatedly explained, I wear contact lenses. And dust or a stray eyelash occasionally becomes trapped beneath a lens. When that happens, I have to either gently rub the eye or at least blink rapidly to ease the discomfort. “So you see,” I said to John, “I didn’t wink; I blinked.”
“Ohhhh, my bad!” John conceded. “What do we do now?”