Sometimes clients lie. They lie to their own lawyers even. Any lawyer who has practiced for any length of time might look at my statements and say “duh, you just figured that out?” Actually, I have known it for a long time, but the funny thing is that I am always still just a little bit shocked when it happens. I suppose it is one of those lessons you learn, forget, and then have to relearn.
Sometimes clients actually try to scam their own lawyers. Again, nothing new on that point for anyone who has been at this for some time. Obviously, scammers are almost certainly liars. All lying clients may not be scammers, but if you catch a client being dishonest, you should be wary that he or she might be trying to pull one over on you.
We don’t see this sort of miscreant behavior a lot, but we see it enough not to be surprised when it happens. In recent years I have become a plaintiffs’ lawyer exclusively, mostly FTCA malpractice cases relating to the VA and the military. I can tell you that the problem of dishonest or conniving clients exists on both sides of the v, albeit with some differences.
Perversely with plaintiffs, it seems to me that such problems are seen more often in cases that are relatively strong ones, cases where liability is clear and at least some damages are plainly connected. I suppose some clients hope to make a good case better – and get more money. Sometimes, however, I conclude that some people are just reflexive liars. Regardless, dishonesty usually has a negative impact. Nothing can damage the value of a case more than a client getting caught in a lie and/or the lawyer concluding that their basic credibility – as in simple truthfulness – is or will become an issue if a case goes on. Those are the ones where you either get out or cut the best deal you can, quickly.
When I look back on my 30 years of being a medical malpractice defense lawyer, the problem clients were a bit easier to pick out because the ones most likely to fudge typically had cases that were hard to defend on the basic medicine. I can laugh about it now, but early on in some of those cases I was told some huge whoppers. Not being a doctor, I might not have figured it out at first, but it does tend to come out pretty quickly. Once in a radiology case, my doctor client assured me that what was seen on a mammogram was not only plainly benign but normal too. I sent the case out for review and when he called me the reviewer’s first words were: “Perhaps your client is blind.” He then went on to make more choice remarks which don’t need to be repeated here.
Over the years, I can look back and see that there are some common scenarios. With this in mind, I offer several thoughts and/or observations:
If someone is caught lying about something small or seemingly inconsequential, there is a significant probability they will lie about bigger or more consequential matters.
Beware of seemingly odd memory lapses, especially if there is a pattern of this happening.
Likewise, beware of curious misunderstandings, especially with clients who are plainly somewhat more sophisticated or educated.
When a client tries to play office personnel against each other, that is a huge red flag. That is not to say that you should dismiss out of hand any complaint brought to you about a colleague, but I think you have to look carefully at what the client is really trying to do or get.
If you are persuaded that a client is being dishonest with you, what do you do? If you are early on in the matter and it can be done without prejudicing the client’s interests (even if you’re wary of what those interests might be), just get out. Even if you confront someone and they promise to be better, the odds are you will have something else arise.
As a case progresses, getting out is not so simple. We still owe duties to our clients – even the reprehensible ones. I do think you need to be honest with clients – calling them (at least obliquely on their dishonesty or conduct) and telling them (quite expressly) the negative impact or potential impact on their case.
One thing to never do – and I mean never – is to do anything to endorse or affirm a client’s dishonesty. Never. I am not just talking about out and out perjury. The rules there are set out. I am talking about those situations where with good reason you just don’t believe your client – and you don’t think anyone else is likely to. Anyone who has any experience knows exactly what I am talking about. You may have no objective reason to know a client is making stuff up, but at the same time your experience tells you that the story is just not real.
A couple of years ago I was taking the deposition of a government doctor. The doctor had simply not seen or ignored information that was plainly in the record, a radiology study showing a tumor. The patient was harmed but fortunately not as badly as he could have been. Damages were decent, but our expectations for the case were modest. Under oath, the doctor told a tale I knew was ridiculous, claiming awareness of the tumor and that the patient had been treated appropriately. What did the defense lawyer do, the Assistant United States Attorney? Nothing. He didn’t come to the aid of the doctor. Never objected or tried to “fix” anything. I suppose one could criticize him for lack of zealous representation but having been a defense lawyer myself I sort of admired him. He knew what his client was spinning and while he could not call the doctor on it in front of me, he was not going to do anything to endorse it. I also suspect the doctor had been counseled as to the impact of that silly version of events. A couple of months later, the case was settled for twice what we anticipated it would be worth.
I can take the same story and just change the party telling the tall tale. In that circumstance, it’s the plaintiff who gets far less for the case than it should be worth, if he or she gets anything.
As lawyers, our reputations for honesty should be impeccable. None of us wants to be the embodiment of the many dishonest lawyer jokes out there. Our reputations are not only based on our actions – they can also be based on the conduct of our clients. Quite simply, no client is worth losing your good name for.
As for prospective clients reading this, all I have to say is that if you can’t be 100% straight with me, I don’t want or need you as my client. If I lie to you – which I won’t – you should fire me. The converse is just as true.