The Importance of Being Honest

How Lying, Secrecy, and Hypocrisy Collide with Truth in Law

Steven Lubet

• Publisher: NYU Press
• Year: 2008
• Print ISBN: 9780814752210
• eBook ISBN: 9780814752364
• Topic: Law
• Subtopic: Ethics & Professional Responsibility in Law
• Index: Law

Popular author Steven Lubet brings his signature blend of humor, advocacy, and legal ethics to The Importance of Being Honest, an incisive analysis of how honesty and law play out in current affairs and historical events. Drawing on original work as well as op-ed pieces and articles that have appeared in the American Lawyer, the Chicago Tribune, and many other national publications, Lubet explores the complex aspects of honesty in the legal world.
The Importance of Being Honest is full of tales of questionable practices and poor behavior, chosen because negative examples are much richer, and often more remarkable, in their ultimate lessons. Wyatt Earp's shootout with Billy Clanton, Bill Clinton's disastrous decision to lie under oath, Oscar Wilde's self-destructive perjury in a 1896 libel trial, and the dubious resolution of Justice Scalia's duck hunting trip with Dick Cheney are only a few of the cases Lubet use to illustrate that law is a vague and boggy realm where truth, and falsehood, is seldom absolute. With his lively, insightful, and sometimes hilarious prose, Lubet takes readers on a tour of the law in our everyday lives, and forces us to rethink how we really feel about honesty and truth.

PART I
Clients

Introduction

THIS SECTION BEGINS with the story of a famous client who did not trust his lawyer, much to his later regret. “Sex, Lies, and Depositions” addresses Bill Clinton’s disastrous decision to lie under oath, and explains how his attorney could have saved the president from embarrassment, impeachment, and near ruin — if only the big guy had been candid with counsel.

In contrast, some clients place too much weight on their lawyers’ shoulders, attempting to evade responsibilities for their own decisions with the highly questionable claim that “My Lawyer Made Me Do It.” Regrettably, some clients go even further, using their lawyers to make outrageous claims, in the hope of intimidating adversaries. That is what happened in the case of “McKinney’s Bluff,” although the tactic ultimately failed to work.

The next essay presents a situation where no one is lying or blustering, but where the moral truth is still difficult to ascertain. In “Morally Gray,” clients on both sides of a lawsuit present sincere and legitimate claims, and there is no easy way to tell which one should win.

“The Truth about Torts” takes the discussion of moral values to a broader level, illustrating virtues of personal injury litigation that have often been obscured and explaining some of the false premises of so-called “tort reform.”

The next two essays address the ways that clients may either fail or succeed to explain themselves. “A Missing Witness” explains how Martha Stewart never managed to tell the story of her own innocence, while “Freedom Stories” expands on the power of stories to convey the truth.

Finally, this section ends as it began, with a famous client who lied (about sex) to his lawyer and in court. “The Importance of Being Honest” is the story of Oscar Wilde’s self-destructive (and perjurious) testimony in his celebrated defamation suit against the Marquess of Queensberry in 1895.

1
Sex, Lies, and Depositions

ON JANUARY 17, 1998, President Bill Clinton testified at what turned out to be the most significant deposition in the history of the United States. Sworn to tell the truth, he calmly lied about his affair with Monica Lewinsky, falsely stating that he was never alone with her and that he never had sexual relations with her. He would soon repeat his lies on television — “I never had sex with that woman” — and several months later he would attempt to wriggle out of the falsehoods in his videotaped grand jury testimony. But the harm was done. Clinton teetered for nearly a year on the edge of political ruin, becoming only the second president in history to be impeached. Although Clinton never came close to constitutional dispossession, the scandal continued to take its toll. In all likelihood, it cost Al Gore the 2000 presidential election — either because it alienated voters from the Democratic Party, or because the skittish Gore decided not to allow Clinton to campaign with him (or both).

Dozens of books have been written about the Clinton era — by insiders, adversaries, journalists, and even a sitting federal judge. Finally, we got My Life, the massive autobiography of Clinton himself, covering the years from his Arkansas boyhood until the inauguration of George W. Bush.

Predictably, much of the buzz was created by Clinton’s comments on his affair with Monica Lewinsky (“immoral and foolish … my selfish stupidity”) and its impact on his family life (“I slept on the couch”). From a professional perspective, however, it is much more interesting to consider Clinton’s relationship to one of his lawyers, Robert Bennett, who represented him in the Paula Jones litigation.

Paula Jones sued Clinton for an incident of sexual harassment that allegedly occurred while he was governor of Arkansas. Clinton tells us that he had an early opportunity to head off the case by paying Jones a nominal amount and helping her husband find work in Hollywood. He refused to pay, however, “because I hadn’t sexually harassed her.” Instead, he hired Bob Bennett to defend him.

Bennett is an exceptionally talented Washington lawyer, highly regarded as a litigator by everyone who knows him. In fact, he eventually succeeded in getting the Jones case dismissed on summary judgment, although not until after the political damage was irreparable. There were other strategies available to Bennett that might have saved Clinton from lying under oath. Unfortunately, Clinton himself evidently foreclosed those options, insisting on a more aggressive approach to the litigation.

And even more significantly, it appears that the president consistently lied to his own lawyer. The details have to be pieced together, but the factual situation seems clear.

As the fateful deposition approached, Clinton had every reason to know that he would be asked about his sexual relationships with female employees, as both governor of Arkansas and president of the United States. As he put it, “The presiding judge, Susan Webber Wright, had given Jones’s lawyers broad permission to delve into my private life, allegedly to see if there was a pattern of sexual harassment involving any women who had held or sought state employment when I was governor or federal employment when I was president.” An astute attorney himself, Clinton says that he was “certain that the lawyers wanted to force me to acknowledge any kind of involvement with one or more women that they could leak to the press.” Moreover, he could not have doubted that Monica Lewinsky’s name would come up at the deposition because she had been disclosed on the plaintiff’s witness list a month or so earlier.

In advance of the deposition, Clinton had “gone over a series of possible questions with my lawyers,” concluding that “I was reasonably well prepared.” He did not, however, tell them anything about Lewinsky. Did they ask him about other women? It seems impossible that they did not. Robert Bennett has honorably maintained his silence about his representation of the president, respecting the attorney-client privilege even as everyone else has gone public. But no competent lawyer, let alone the super-capable Bennett, would have failed to ask a client about every person named on the opposing side’s witness list. Given the transparency of the plaintiff’s tactics — trying to force Clinton to talk about sexual liaisons — we can be all but certain that Bennett put the question directly to his client.

To put it bluntly, Clinton expected to be asked about Lewinsky and he planned to lie, keeping his lawyer in the dark so that he could be sure to get away with it.

True to form, Jones’s lawyers used the deposition to pound away at Clinton’s relationship with Lewinsky. As Clinton recalls, they asked “how well I knew her, whether we had ever exchanged gifts, whether we had ever talked on the phone, and if I had had ‘sexual relations’ with her.” Silently relying on Judge Wright’s somewhat incomplete definition, which arguably excluded unreciprocated oral sex, Clinton “answered no to the ‘sexual relations’ question.”

During a break in the testimony, Clinton discussed Lewinsky with his lawyers, lying to them once more. “My legal team was perplexed,” he says, “because Lewinsky’s name had shown up on the plaintiff’s list of potential witnesses only in early December, and she had been given a subpoena to appear as a witness two weeks later.” Of course, they would not have been at all perplexed if Clinton had simply told them the truth about her. Instead, he continued to mislead his lawyers: “I didn’t tell them about my relationship with her, but I did say I was unsure of exactly what the curious definition of sexual relations meant.”

What are we to make of that assertion? We know, of course, that Clinton did not tell Bennett or the other lawyers about his affair with Lewinsky, which he continued to deny until the following August (after Ken Starr leaked information about the “genetic material” on Monica’s now-famous blue dress). But did the president really hint so broadly to his lawyers that a less “curious” definition would lead to a more explicit answer about his sexual relations? Again, we will probably never learn Bennett’s version, but it is extremely unlikely that he would have failed to put two and two together. Imagine how the conversation would have gone between lawyer and client (based solely on Clinton’s own account):

BENNETT: Mr. President, we are perplexed. Why are they asking you about sexual relations with Monica Lewinsky?

CLINTON: I don’t know. But I am unsure what is meant by the curious definition of “sexual relations.”

Is it even remotely conceivable that Bennett would have failed to ask a single follow-up question? So we are left with only two plausible scenarios. Either Clinton’s memoir is, to put it gently, inaccurate about the hint to Bennett (diverting some of the blame to his lawyer for not figuring out what was going on), or Bennett actually pursued the hint but obtained only more misinformation from his client.

Yes, technically there is a third possibility — namely, that Bill Clinton came clean with Bennett, who then willingly facilitated his client’s perjury. In truth, however, that is just about impossible. First, it would have been unethical, and no one has ever suggested that Bennett is anything other than a completely ethical practitioner. Second, we know that Clinton persisted in lying to everyone in sight — his wife, his daughter, his cabinet, his advisors, the American public, and the entire world — so there is no reason to think that he was honest with Bennett. And finally, Bennett was surely smart enough to know that Clinton was courting disaster by lying, and he would have taken immediate steps to get his client out of a quickly deepening hole.

Nearly all of Clinton’s woes, up to and including his impeachment, are traceable to his perjury in the Jones deposition. Ultimately, there was no proof that he ever induced anyone else to lie, or that he concealed evidence, or that he destroyed gifts from Monica Lewinsky. But there was no doubt (among any but the most credulous) that he flatly lied in his deposition, and was later less than candid about it when he testified before a grand jury. Clinton himself remains in denial. He wasn’t lying, he writes; it was merely that he “had not been trying to be helpful to the Jones lawyers.” Or, as he testified to the grand jury, “I was determined to walk through the minefield of this deposition without violating the law, and I believe I did.”

Well, he was mistaken. Both Independent Counsel Kenneth Starr and the House of Representatives’ impeachment managers concluded that Clinton had violated the law — no surprise there, of course, and not exactly an objective assessment. But so too did Judge Susan Webber Wright, who held Clinton in contempt of court for his “willful failure” to testify truthfully. “Simply put,” said the judge, “the president’s deposition testimony regarding whether he had ever been alone with Ms. Lewinsky was intentionally false and his statements regarding whether he had ever engaged in sexual relations with Ms. Lewinsky likewise were intentionally false.” Clinton was also compelled to surrender his Arkansas law license, admitting that he intentionally gave “evasive and misleading answers” that were “prejudicial to the administration of justice.”

The greatest irony — or tragedy, or perhaps farce — is that Bennett could have rescued Clinton, if only the president had told him the truth. Adequately forewarned, Robert Bennett surely would have counseled his client to tell the truth and to skip the coy evasion. If the president refused, there were still feasible alternatives. They could have refused to attend the deposition, claiming that the United States Supreme Court erred in ruling that a sitting president is subject to civil legal proceedings. Or they could have refused to answer “inappropriately personal questions,” asserting a right to privacy.

Either measure would have been drastic, but still far preferable to lying — and much less dangerous. Judge Wright would obviously have imposed sanctions under the Federal Rules of Civil Procedure, but they would have been trivial compared to the eventual upshot of Clinton’s testimony. In fact, even the most severe sanction — entry of a default judgment — would not have been so bad. It would have ended the case completely, resulting only in the payment of some money by Clinton. And probably not very much money at that. Jones would still have had to prove up her damages, which were relatively modest — by her own account she quickly rebuffed Clinton’s crude proposition, and she was never fired or demoted. At worst, she would have gotten the full $700,000 demanded in her complaint, which would have been more than offset by the small fortune in legal fees that Clinton would have saved.

Even after defaulting, Clinton could have maintained his public denial of sexual harassment. A default judgment is not an admission of guilt. Clinton could have characterized his withdrawal from the case as a decision to spare the presidency from the intrusive indignity of the lawsuit, announcing that he would rather spend his time running the country than worrying about lawyers and litigation. In the hands of a masterful politician, a default judgment might have been portrayed as the high road — a noble financial sacrifice for the sake of safeguarding the independence of his office.

We can be almost certain that Bennett asked about Clinton’s relationships with women, and Monica Lewinsky in particular, but we do not know how sharply he inquired. Should Bennett have probed more deeply, asking sharper questions and refusing to accept Clinton’s blanket denials? Should he have realized that the legacy of the Clinton administration was in his hands?

It is always hard to press your client, and it must be impossibly difficult when he is the president of the United States, the most powerful individual in the world. Bennett cannot be faulted for taking Clinton at his word, or even for failing to pick up on a few oblique hints (if indeed they were given). Robert Bennett trusted his client; it is only too bad that Bill Clinton could not bring himself to return the favor.

2
My Lawyer Made Me Do It

SOONER OR LATER, nearly every lawyer has to confront some variant on the dilemma of zealous representation. How do we justify representing clients whose goals are morally questionable or even flatly offensive? The standard answer is that lawyers serve society by facilitating client autonomy, allowing individuals and corporations to make informed decisions about their legal rights. As Samuel Johnson explained nearly 250 years ago, “A lawyer is to do for his client all that his client might fairly do for himself.” Thus, corporate counsel (following each new accounting fraud) and public defenders (in almost every case) deliver the same ready reply to a relentlessly familiar question: How can you defend those people? Well, it isn’t always easy, but we are just doing our job.

That is why lawyers are convenient foils, resolutely (if not gladly) taking the heat for their clients. It is also why you so often hear corporate officials or political leaders insist that they “cannot comment” on matters that are “under investigation” or “subject to litigation.” No one really believes that hooey, but it is semi-respectable because it is so transparent. It may well be prudent to clam up, especially if you have something to hide, but nothing a lawyer recommends can ultimately prevent an individual from discussing pending litigation. So the “no comment” approach is generally recognized as a face-saving ploy, raised to avoid uncomfortable — and too frequently incriminatory — inquiries by invoking the advice of counsel.

Acknowledging a lawyer’s advice is one thing, and accepting it is another, but both are far different from claiming to be a helpless bystander in your own case. Client autonomy, which lawyers are obligated to respect, creates significant responsibilities that cannot simply be reassigned to counsel. Of course, that doesn’t stop clients from trying to shift the blame in sticky situations, but you usually expect that sort of behavior from, say, habitual polluters or sleazy congressmen. Until fairly recently, it was a safe bet that no lawyer ever had to worry about taking a hit for a client like the Catholic Archdiocese of Boston, but that was before the sexual abuse scandals that have rocked the church (and many other denominations) for nearly a decade. Almost without fail, high-stakes cases tend to bring out the worst in people, as they search for just about any useful dodge or trumped-up excuse for their conduct. The Boston situation turned out to be no exception, in a novel and rather surprising way.

The clergy abuse litigation in Boston — with over five hundred individual cases — was particularly extensive, involving numerous priests and allegations of repeated cover-ups. It was also extremely acrimonious on both sides. By 2003, many parishioners were openly questioning the basic decency of the church’s legal strategy, going so far as to accuse the defense of inflicting new trauma on the abuse victims. Representatives of the archdiocese responded by blaming it all on their counsel — “Our lawyers made us do it” — as though the church had no control over the tactics employed in its name.

Amid charges of stonewalling and complicity, over fifty priests signed a letter declaring “no confidence” in Cardinal Bernard Law, a measure unprecedented in the Catholic Chu...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• Acknowledgments
• Introduction
• PART I Clients
• PART II Lawyers
• PART III Judges
• PART IV Academics
• PART V Medical Practice
• Afterword
• Notes and Sources
• Index
• About the Author