Truthfulness and Courage

What people think about "lawyers" isn't what matters to us. We are becoming lawyers, the ones we want to be. Observing and learning from the practices we see lawyers building around us is necessary: We cannot become without plans, and our plans cannot be constructed without objectives, which in turn require models. We are imagining what sort of law practice will meet our needs, intellectual, material, moral, and social. Our readings this week involve, among other aspects, objectives in character: we are studying how becoming the lawyers we want to be means also creating states of character, identity states that represent choices about how we are.

Whether people think lawyers are liars is irrelevant to the actual importance of truthfulness in our practice. Judge Day raises the questions vividly, in her discerning way. Lawyers are, and should be, spooky. They are, as Kafka and Robinson know, never far from evil. They know too much. They are the privileged repositories of secrets and confidences they can never reveal. They manipulate social outcomes using words rather than hands or arms. How can they not lie?, as Day asks. But lawyers don't let other lawyers lie to them: if you do, they will get even. The simplest way to get even is not to trust: lawyers need other lawyers' trust all the time, in order to do whatever they need to do, wherever they are.

So—whatever other people think—good lawyers don't lie. When I tell something to another lawyer in professional contexts, it's the truth. If I make a representation, I have checked and to the best of my knowledge it is true.

In my particular practice I speak routinely to many lawyers and business executives across the global IT industry on more or less confidential terms. I have a basic ground rule about non-privileged conversations: I may choose to tell someone what I have said to a third party, but I never disclose anything anyone else says to me. I may choose to summarize conclusions I have come to on the basis of things I have learned, but I never disclose what I've been told. CEOs and General Counsel across my beat know that this is my rule and that they can absolutely trust me to follow it. They understand what use they can make of the breadth of my knowledge and communications, given their certainty about what I will do with what I learn. Their trust allows me to learn more and to be more valuable to them as well as to the others in our community. Thus, to take one aspect only, There have been relatively frequent occasions in the course of my practice where the CEOs of companies A and B couldn't effectively discuss with one another issues that divided them, at all, but they were both in frequent touch with me, to everyones' benefit.

Truthfulness is the cement that holds together a lawyer's integrity, the concrete out of which her practice is built. The lawyer's professional identity state, the one that's active whenever he is working, does not lie. For all the reasons Judge Day enumerates in the course of her discerning, this is a core around which many subtleties and diplomacies will gather: lawyers know too much and will always find it beneficial to say less than what they could. But a direct, intentionally false statement of fact is what lies outside the sharp distinction on which any code of lawyers' ethics must rest. If your word is not unfailingly good, then you are not an unfailingly good lawyer; it's really that simple.

In the US census of 1850, almost precisely one in seven of the American people (3.2 million out of 21.9 million) were enslaved. Just under 90% of the Americans of African descent were being treated as someone's chattel possessions.

Slavery could not be created, or maintained for a single day, without persistent, comprehensive, omnipresent violence. Killing, maiming, raping, forcibly separating families, subjecting human beings to deliberately dehumanizing treatment—all are activities which, no matter how "regrettable" or aberrant slaveholders may have considered them in their individual lives, were inherent in the system that produced and protected their prosperity. All Americans, no matter were they lived or how they earned their livings, knew that theirs was a society founded upon the legality and apparent inevitability of slavery.

What would it mean to become a lawyer here, now, if almost 50 million of our fellow Americans were being held in bondage? Henry David Thoreau's plea for John Brown is lawyering of the highest literary order, though Thoreau had no more of legal training than he had of preparation for the ministry, or to be inspector of snowstorms. A man like turns his words as he turns his hand, to what makes him grow higher in his own esteem, as did John Brown.

In them both, lawyers neither but good haters of injustice as they were, we are asked to consider the limits of our courage. What would we risk to be truthful about the radical injustices around us? What must we do in order to live not as we feel we must, but as we know we should?

I had a friend in Amsterdam who was arrested and tortured by the Gestapo in 1944; she had carried a message to another young woman already in custody about the fate of that prisoner's boyfriend, whom my friend's father was hiding, along with other Jews. She lived a long life, as a schoolteacher and artist; almost all postwar Dutch children grew up reading with their parents the children's books she illustrated. But the effects of her treatment by the Nazi occupiers never left her. Courage changes us forever.

To become a lawyer is to change. You know that now, though you offer at every turn your absence of experience as the reason why you don't know who you are changing into. Fair enough, but it is time amidst uncertainty about decoration to lay some architecture down.

-- EbenMoglen - 17 Mar 2021

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