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Should a lawyer withdraw at the first indication that the client wants to lie?

By Nancy Rapoport

My buddy Marc Stern forwarded this blog post to me (here).  My first instinct was "What the hey? Of course a lawyer should withdraw immediately."  I liked the blogger's observation below:

In short, the lawyer needs to make sure the client knows what the lawyer knows: the lie will eventually be discovered.  The client needs to confront this fact and agree to be truthful to the court.  It is a rare client whose force of personality cannot be overcome by his or her lawyer?s carefully presented arguments, especially where the client is clearly wrong, and the client is committing a crime by refusing the lawyer?s advice.

My problem with this concept is that I don't think that people who lie intentionally are going to be persuaded to become honest.  (See an earlier article I wrote about this topic here.  The Kaye, Scholer lawyers thought that their client, OPM--which was an acronym for "Other People's Money," always a bad sign for a client--was going to reform after being caught in outrageously dishonest acts.  Kaye, Scholer's mistake in trusting the stubbornly dishonest client is an object lesson for all of us.) 

Although it's possible that a lawyer's "force of personality" may help a client whose honesty is wavering to see the light, I think it's equally possible for a lawyer to persuade herself (wrongly) that she has won over the obstinately lying client.  That lawyer may well find herself the product of a disciplinary action later.

The well-meaning and honest lawyer faces many pitfalls.  (Alan Childress, Mike Frisch, and I are working on a professional responsibility textbook for Aspen based on the premise that honest lawyers can find themselves in all sorts of trouble even though they aren't hell-bent on lying, cheating, or stealing.)  Persuading oneself that one's client is going to see the light based on the lawyer's moral suasion is one such pitfall.

Full post as published by Nancy Rapoport's Blogspot on June 06, 2010 (boomark / email).