President Clinton’s lawyer Bob Bennett last week heatedly declared that the allegations concerning the president and Paula Jones, Monica Lewinsky, Kathleen Willey, and others were “scurrilous” products of “Clinton haters.” Jones in particular “has no case. … She was never harassed.”
It is possible that Bennett actually believes his client’s story on all these matters. But suppose, like almost everyone else, he believes Clinton is lying to some degree. Is a lawyer free to tell, with as much passion as he cares to muster, something he believes to be a lie?
Lewinsky’s lawyer, William Ginsburg, has made a “proffer“: In exchange for immunity from prosecution, his client will testify under oath that she and President Clinton had sex. So far, Special Prosecutor Kenneth Starr has not accepted the proffer. Without a deal, is Ginsburg free to revert to Lewinsky’s earlier sworn testimony that she and Clinton did not have sex? Having offered to tell one version of events, may a lawyer really choose to tell a contradictory version–as if the offer had never existed?
Officially, the American Bar Association’s model code of professional responsibility forbids a lawyer to “knowingly make a false statement of law or fact.” The code forbids lawyers from making any statement, true or false, outside the courtroom that has a “substantial likelihood” of “materially prejudicing” a trial. In practice, however, these restrictions melt away.
Alawyer may not knowingly lie, but he or she is under no obligation to know the truth or to draw logical inferences from what he or she does know. Since the lawyer was rarely at the scene of the crime, she can plausibly maintain that she doesn’t know for sure what happened–and is therefore free to argue whatever version of events best suits her client. Indeed, in the absence of that very rare absolute certainty, the ethical obligation of “zealous advocacy” virtually requires a lawyer to argue his client’s version of events–however implausible. To guard against certainty, some lawyers take the precaution of not asking their clients to say exactly what happened–or even of asking them not to say what happened.
Lying really only arises as an issue in the absurd warhorse of law school ethics exams: a client who simultaneously confesses to a crime and insists on testifying that he is innocent. The ethical issue, even here, is not whether the lawyer is allowed to participate in the client’s lie but whether he is actually required to do so. The answer is: not quite. If a lawyer knows with ontological certitude that a client is planning to lie on the stand, she is not allowed to report this to the court. She is allowed to quit the case. Or–to avoid being guilty of suborning perjury–she may put her client on the stand and let him testify without asking him specific questions beyond “Tell your story.”
If a lawyer finds that his client has “perpetrated a fraud on the tribunal”–i.e., told a lie in court–the rules say the lawyer should inform the court, unless the information was told to him in confidence or secret. But, of course, just about everything that a client ever tells a lawyer is a secret or a confidence. Similarly, there appear to be specific and severe rules forbidding “extrajudicial” remarks, such as lawyers’ statements to the press about a pending case. But the reality is better characterized by the conduct of Bennett and Ginsburg. It is almost unheard of for anyone to get into trouble for giving interviews when a case is pretrial. The rule requires a “substantial” chance of “material” impact on the case, both of which are nearly impossible to prove.
Just to make sure they are not violating the rules against lying, lawyers can choose their words carefully. Bennett clearly intended to communicate that his position is the same as his client’s: The Jones, Lewinsky, and Willey stories are all false. But his words can be interpreted–if necessary–to mean something else. For example, he could be saying that Jones was not harassed because her description of Clinton’s behavior, even if true, doesn’t fit the technical definition of harassment. To say that allegations are “scurrilous” is not necessarily to say that they are false. And so on.
I n a proffer session, a witness, defendant, or potential defendant provides the prosecution with a preview of the evidence he or she could provide or the testimony they would give. The prosecution is invited to buy this information with leniency.
Proffers are increasingly common in the criminal justice system, especially since the enactment of federal sentencing guidelines in 1987, which substantially restricted a judge’s discretion in sentencing. One of the few remaining ways to obtain a coveted “downward departure”–a sentence below the official range–is through cooperation with the government. In Lewinsky’s case, lawyer Ginsburg, rather than turning state’s evidence after indictment, is asking for immunity–a guarantee that his client will never face charges at all. Unfortunately, this leaves Ginsburg trying to explain that if granted immunity Lewinsky will testify one way, and if indicted she’ll stand by her deposition. This does not do well for Lewinsky’s credibility.
Normally, these discussions are kept secret. Not because discussing them in public might violate the rules but because making proffers public seldom makes tacticalsense. In discussing Lewinsky’s proffer, Ginsburg suggests that Lewinsky either has already lied or will do so in the future for the right deal. This doesn’t look good.
But these contradictions cannot be used against Lewinsky at trial. The federal rules of criminal procedure prohibit the government from using any statements made in furtherance of a plea bargain, and Lewinsky’s attempt to gain immunity is essentially a form of plea bargaining. Additionally, most proffer sessions involve what is known as a “queen for a day” agreement, under which both sides agree that information discussed at such a session will not be admissible against the defendant at a trial. These protections, enacted to encourage truth before trial, have the paradoxical effect, when publicized, of making Lewinsky appear crazy, mendacious, guilty, or some combination thereof.