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January|February 2005
Identity Crisis By Andy Latack
Parliament of Dunces By James B. Goodno
The Fall of New Rome By Geoffrey Gagnon
The King of Plots By Aaron Dalton
The Prudent Jurist By William H. Simon
Cases & Controversies

The Prudent Jurist

The Colorado Supreme Court censured a prosecutor who lied to a murderer in order to capture him, and the Oregon Supreme Court said prosecutors shouldn't oversee undercover operations. Both courts invoked the ethics rule against "dishonesty." Should lawyers be allowed to lie in the course of law enforcement?

By William H. Simon

CONTRARY TO WHAT SOME MORALISTS WILL TELL YOU, two wrongs sometimes do make a right. Or, to put it differently, what the right thing is can depend on whether others are behaving badly.

Lying has legitimate moral uses, both as a way to protect privacy (no one would criticize a person who, when asked, "How are you?" replied, "Fine," instead of explaining that he had cancer) and as a way of frustrating wrongful intentions (consider the hypothetical about whether one should respond truthfully to a murderer who asks where his intended victim is—a sanity test flunked by the philosopher Immanuel Kant). A few jurisdictions, including Oregon, which backed down from its rigid honesty standard after the Department of Justice sued to prevent the rule's application to federal prosecutors, have made explicit allowances for deception in police undercover operations. Some even allow for private enforcement deception, as in the use of "testers" of different races who pretend to be interested in renting apartments to investigate landlord compliance with antidiscrimination law.

One problem with absolutism about honesty is that it drives the moralist into a kind of dishonesty of her own. To avoid looking ridiculous, she is constantly forced to try to explain why various widely accepted forms of deception are not really "lying." Thus, the American Bar Association says that it is O.K. for a lawyer to say that his client has a "strong" case when he doesn't really believe that, because such statements are "puffing" rather than lying. The conclusion may be right, but the rationale is silly. Lying is intentional deception, and that's exactly what "puffing" is.

Nearly all law enforcement involves activities that, were they not efforts to apprehend or deter breaking the law, would be condemned as deceit, assault, false imprisonment, or invasion of privacy. Their legitimacy should depend on whether they tend to prevent graver harm, not on whether we can come up with innocuous-sounding terms to describe them.

The Florida State Bar challenged the advertising tactics of a pair of Fort Lauderdale personal injury lawyers. The law firm of Pape & Chandler markets its services with ads showing its partners on motorcycles, an image of the American pit bull terrier, and the firm's phone number, 1-XXX-PIT-BULL. Judge William Herring said the ads and the phone number were no problem. Should lawyers be allowed to market themselves in this manner?

IN REJECTING THE BAR'S CHALLENGE, Judge Herring showed a sensitivity to the constitutional values in commercial speech not often seen in Florida, home of some of the nation's strictest prohibitions on lawyer advertising.

Pape & Chandler advertises in venues throughout the state—in motorcycle magazines, on T-shirts, and in the occasional television commercial. Their typical ad shows two muscular men (Pape and Chandler) in sleeveless shirts and sunglasses staring confidently from their motorcycles. The red pit bull in the firm's logo sports a spiked collar.

The primary constitutionally permissible basis for regulating commercial speech is to prevent consumer deception, and Herring justifiably held the ads harmless on that score. But in its last encounter with lawyer advertising, the Supreme Court suggested that regulation might also be justified on the basis of preserving public respect for the bar. On these grounds, the motorcycles and pit bull might be debatable. Pape and Chandler argued that the motorcycles simply emphasized that their practice was focused on motorcycle accidents and that the pit bulls connote loyalty and tenacity more than unrestrained aggression. Herring was persuaded, but a judge with a more rigid notion of professional dignity might have decided differently.

Herring also insightfully detected class bias in the bar's complaint. The bar likes to imagine the typical lawyer as Gregory Peck in a three-piece suit; these lawyers portrayed themselves as Vin Diesels on their way to a bike rally. If the latter image inspires more confidence in some clients, why should the bar be permitted to dismiss their views?

Of course, the kind of information that such advertising provides is a flimsy basis for choosing a lawyer. But what is an inexperienced person with no trusted sources of advice to do? The profession would prefer that such people entrust themselves to the lawyer referral service of their local bar association, where a secretary gives each caller the next name on a list of lawyers who have indicated that they are seeking referrals. Any lawyer can get on the list, and the bar makes no judgment about the quality or suitability of the services they provide. If your only alternative is the referral lottery, it might make sense to go with the pit bulls.

William H. Simon teaches professional responsibility at Columbia Law School and is a contributing editor of Legal Affairs.

Questions for the Prudent Jurist can be sent to prudentjurist@legalaffairs.org.

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