The Lying Game
Of course, it is never acceptable to lie or mislead someone about whether you are an attorney. Beyond that, we legal assistants occasionally need to ask ourselves the following questions:
1. When is it acceptable to lie?
2. If it is acceptable to lie sometimes, how much of a lie can be told?
3. Is the omission of information the same as lying?
I will discuss these questions individually.
When Is It Acceptable to Lie?
In the best of all possible worlds it would never be acceptable, or necessary, to lie. Nevertheless, there are many instances when we feel we must lie. If your attorney represents a woman who has gone into hiding to escape from her abusive husband, and he calls demanding to know where she is, most of us would agree that it is acceptable, even necessary, to tell the husband you wonít give him that information, or even say that you donít know where she is, even if you do. The reasoning is simple: if I tell the husband where she is, he might find her and hurt her, and if I tell him I know where she is but wonít tell him, he might hurt me.
Another fairly simple example is when opposing counsel calls to ask you a question to which you know the answer, but you know you shouldnít give that information to opposing counsel. Perhaps it is information that should come from the attorney instead, or perhaps it is something you know your boss has no intention of telling the other side just because he isnít required to tell them. Either way, you can reassure yourself with the knowledge that any lie or omission is being handled by the attorney, not you.
If It Is Acceptable To Lie Sometimes, How Much Of A Lie Can Be Told?
As the examples above indicate, it is sometimes acceptable to lie. However, how much of a lie can be told (or is a little lie the same as being a little pregnant)? A friend was once trying to locate a man who had skipped out on paying child support, embezzled from a partnership, and had several other people looking for him. After calling the phone numbers for several of his previous addresses, she finally reached someone at the last address she had for him. When she asked for this man, the woman who answered told her there was no one there by that name. My friend then spoke as if she was an old friend of his who was trying to reach him and recited the list of previous locations where he had been. She mentioned how hard it was to keep up with him and the woman on the phone agreed that he had moved frequently. After a few more minutes of conversation, the woman gave my friend a phone number of someone who could always get in touch with this man. Although my friend never specifically said she was a friend of this man, it was definitely implied by what she said. It could be argued that since this man was a scum bag, he deserved to be caught regardless of whether she had to lie. However, I donít know if the man she was trying to locate would see it that way, or whether the woman on the phone would forgive her for lying.
Is The Omission Of Information The Same As Lying?
Perhaps you feel more comfortable not lying, but just omitting information. A friend of mine recently was attempting to arrange for service of a subpoena on a realtor. The realtor has the listing on a house which is the subject of litigation. She knew she had to leave a message on his pager and figured that if the realtor knew someone from a law firm was calling him, he might not return the call. The message she left on his pager stated her name and that she wanted to talk with him about a house in Smith subdivision. Everything she said was the truth, she just left out some information. Did she mislead him? Probably, since the message he left her in response indicated he couldnít wait to show her the house. Did the ends justify the means? Maybe. There is no way to determine now whether it was necessary to omit that information to get the realtor to return the phone call. She had to make her decision based on past experience.
Although the majority of us would probably agree that lying should be avoided whenever possible, the same people would probably also agree that lying (or omitting) is often useful and sometimes necessary. As illustrated by these few examples, lying and omitting information is often a part of our jobs. However, it is quite a gray area and what is acceptable to one person may be more than another person is willing to do. Therefore it is up to each of us to determine the best way to handle each situation and to be as truthful and ethical as possible, while getting the job done.
Ellen Lockwood is a legal assistant with the firm of Jenkens &Gilchrist Groce, Locke &Hebdon in San Antonio. She is a former member of the Board of Directors of the Legal Assistants Division and currently serves as Chair of the Ethics Committee.
If you have any questions regarding any ethical issue, please contact the Professional Ethics Committee.
Originally published in the Texas Paralegal Journal © Copyright 1998 by the Legal Assistants Division, State Bar of Texas.