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1998

[Review of] Mark Perlmutter, Why Lawyers (and the Rest of Us) Lie [Review of] Mark Perlmutter, Why Lawyers (and the Rest of Us) Lie

& Engage in Other Repugnant Behavior & Engage in Other Repugnant Behavior

Sherman L. Cohn Georgetown University Law Center

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13 Wash. Law. 53

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Roth's "Eli, the Fanatic." This remark-able short story shows a lawyer workingto protect religious freedom in a mostremarkable way. The story is metaphor-ical about what lawyers do: lawyersoften identify with their clients, andmake the clients' causes their own. ButRoth has two twists in store. First, hehas the lawyer not only identify with thecase, but actually change clothes withthe protagonist, walk in his shoes, andbecome transformed. The second twistis Roth's attorney is transformed not byhis own clients, but by the person on theother side! The lawyer is retained by agroup in the community to use legalmeans to try to convince an orthodoxJew to change his clothing to conform tomodern dress. In the course of trying todo so, Roth comes to deep insight intohimself and the nature of religious free-dom. The attorney becomes the vehiclefor solving the problem his clients pre-sented to him by taking actions that ed-ucate everyone. Roth is not quite so tidyin his story as this summary makes itseem-he is much richer, nuanced, andmore real.

Understandably, but somewhat re-grettably, the book omits some chest-nuts like "The Devil and Daniel Web-ster," and omits entirely works of dramaand poetry. These omissions reflect aconscious choice by the editors to focuson "the human dimension of the indi-viduals caught up in the legal system aspractitioners, participants, and some-times victims." Also left out are "storiesbroadly relating to crime and punish-ment, morality, psychological guilt, ordivine justice." Classics such as FranzKafka's In the Penal Colony are not in-cluded on the grounds that the editorsomitted all non-English works, andchose instead to seek more unity of ex-perience based in the common law.

The book offers a glimpse of hownonlawyers as well as attorney-authorsthink of lawyers and others caught inthe web of the law. For teachers or afi-cionados of the study of law and litera-ture, Trial and Error provides an excel-lent addition to the library. For thosewhose appetite for law and literature iswhetted by the book, a short bibliogra-phy is included.

For anyone interested in wholawyers are, what the law is, how itworks, and what it does, TrialandErrormakes for delightful, insightful bedtimereading in nicely sized packets.

WHY LAWYERS (AND THE REST OF US) LIE &

ENGAGE IN OTHER REPUGNANT BEHAVIOR

By Mark Per/mutterBright Books, 1998, $16.95

Reviewed by Sherman L. CohnProfessor of Law, Georgetown University Law Center

Of late there have been severalbooks about the legal profes-sion and its problems. Someare valuable academic dis-

cussions such as The Lost Lawyer by An-thony Kronman of Yale and A Nation ofLawyers by Mary Ann Glendon of Har-vard. Sol Linowitz's The Betrayed Profes-sion, a description of how it was in thehalycon days of his law practice com-pared to the problems of today, is in aspecial category of importance. MichaelKelly's descriptive analysis in Lives ofLawyers should be read by all who arecontemplating a career in the law as wellas those who won-der what has hap-pened and why. Marl Perlmut

But Why Lawyers(and the Rest of Us) the stories, tLie & Engage inOther Repugnant Be- why lawyers chavior by MarkPerlmutter stands Why do we Iout as quite differ-ent. This book attempt to puspeaks to the indi-vidual lawyer about the eyes of ahis or her own prac-tice. It is a self-con-fession by a leadingtrial lawyer of his own defalcations: ofhis own lies, of his own standing by as amore senior member of his law firm de-liberately destroyed evidence, of hisown giving a convincing argument to acourt on a motion when all that he reallywanted to do was delay. The stories areintriguing and captivating.

Thus, while in a narrow sense, WhyLawyers Lie is a lawyer- bashing book, itis also much more. Written by a lawyerout of his own experiences, and drawingupon Sisele Bok's seminal work, Lying,this book describes the actions thatmany of us have taken, actions thatwhen looked at in the context of lyingand engaging in other repugnant behav-ior make one reflect.

Mark Perlmutter goes beyond thestories, however, to ask why lawyers dothese things. Why do we lie? Why do we

attempt to pull the wool over the eyes ofa judge or jury? And he answers thosequestions, focusing on our relations withour clients, but also on our internalselves. Thus, he demonstrates thatlawyers often act out of fear: fear of los-ing, fear of humiliation, fear of beingshown up. He attributes some of whatwe do to the motive of greed, but more tothe motive of winning the fight. Indeed,his point is that we very often forget theclient, and act in a way that is inimical tothe client's interest, as we focus on beat-ing the "bastard" on the other side. Weput bait before the enemy while he or

ter goes beyond

iowever, to ask

lo these things.

ie? Why do we

1l the wool over

ijudge or jury?

N

she puts bait beforeus. Too often werise to the bait andthe battle goesforth-clients andjustice be damned.

When exam-ined in this man-ner, the picture isnot a pretty one.Yet it rings truecoming from theexperience ofMark Perlmutter.But Perlmutterdoes not end there.

He goes on to pose solutions. While SolLinowitz and others have proposed solu-tions on a macro scale properly pursuedby the profession as a whole, Perlmutterfocuses on the individual lawyer. He de-scribes how he found himself unhappywith the practice of law, and how it dam-aged his psychological and physicalbeing. Like the story of the alcoholic inThe Lost Weekend, Perlmutter describeshis own depth of despair with the prac-tice of law as he saw and experienced it.

Perlmutter goes on to describe hispersonal transformation: his findingthrough seminars in personal develop-ment that he need not continue to prac-tice law this way, but that he couldtransform himself into a lawyer he couldlike and live with. He allowed himselfto "feel" as well as "think." He devel-oped the courage to act on his convic-

THE WASHINGTON LAWYER - SEPTEMBER/OCTOBER 1998 53

BOOKS in the LAWtions of how law should be practiced,and he describes how this made himboth a better and more effectivelawyer. He is more effective for hisclients in finding solutions to theirproblems at the least possible cost indollars, in time, and in emotional capi-tal. He is more effective with opposingclients in working toward solutions,and when a matter must go to trial he ismore effective in the courtroom. Per-haps most surprising he points out thatin the old days when there was almostalways a "bastard" on the other side,the one constant was that he, MarkPerlmutter, was the essential ingredi-ent in the changing picture. As MarkPerlmutter changed and exuded hisnew self to his opponents, the "bas-tard" on the other side transformedinto a more reasonable lawyer inter-ested in the system working better forall concerned. Keith Evans in a de-lightful little new book, TheLanguage ofAdvocacy, reports a similar experienceand similar results.

There is no question that the legalprofession has problems. This isdemonstrated by every survey and bythe fact that politicians find politicalcapital in bashing the profession. As wesee the ethical and criminal defalca-tions of lawyers in large, white-shoelaw firms-many of them senior andmanaging attorneys who are graduatesof the best law schools-we can nolonger put the matter solely on themarginal attorney, the graduate of thetrade school, or the young beginner.

Solutions are proposed on everyside. The law schools have been or-dered to teach ethics-for so long es-chewed by the "better" schools. A na-tional examination in the ethics of theprofession is now required for admis-sion to the bar of most states. TheCanons of Ethics gave way to the Codeof Professional Responsibility. Thecode gave way to the Rules of Profes-sional Conduct, and the rules are nowbeing reexmained by the ABA's Ethics2000 Commission.

We have also redone our disciplinaryrules, establishing in most states profes-sional investigatory and prosecutorialstaffs to pursue ethical breaches and dis-cipline those involved. The number ofthose disciplined appears to have

hWH

Perimutter's book adds to the

literature in a special way: it

is personal, it is real, and it

prescribes a way that eachofus can make a difference by

focusing on our individual

professional selves.

climbed appreciatively in most places.We have adopted codes of conduct bythe score if not the hundreds. Of course,we have been careful to call these codesmerely aspirational, should some lay

person be so unthinking as to try to holdus to these aspirations. Yet, the numberof legal malpractice cases grows as dis-gruntled clients seek redress for our per-ceived breaches of ethical and fiduciaryduties, with an uncomfortable numberof those cases resulting in recoveries forthe plaintiffs. The number of legalethics experts grows, not only as wit-nesses in court cases, but as consultants

to law firms on the handling of ethicalproblems that the firms have noted butthat have not yet hit the fan.

As noted earlier, we have also seen aplethora of writings within the profes-sion. There are books by academics di-secting the profession. Every re-

spectable law review has had at leastone symposium on the profession. TheGeorgetown Journal of Legal Ethics regu-larly provides incisive analyses of theethics of the profession.

The American Inns of Court wascreated, in part, to deal with these prob-lems. That it has found a responsivecord is clear from the fact that it hasbeen the fastest growing organizationof lawyers and judges in the nation, asthey seek to put meaning and enjoy-ment back into the practice of law.

Yet, the problems and the percep-tion persist. The canons, the codes,and the rules prescribing a minimalstandard of conduct, the accompany-ing reforms in the discinplinary sys-tem, the mandatory education inethics in the law schools, and the in-crease in CLE ethics offerings havehopefully educated lawyers who oth-erwise would not have known how toact and intimidated some who wouldhave gone astray but for the discipli-nary club. Yet, public unhappinesswith the profession does not abate.The codes of aspirational conductseem to have proven little more thanself-congratulatory paraphenalia bythe organized profession.

Perlmutter's book adds to the litera-ture in a special way: it is personal, it isreal, and it prescribes a way that each ofus can make a difference by focusingon our individual professional selves.Why Lawyers Lie does not call for an-other systemic reform, but for the indi-vidual lawyer to own up to his or hercontribution to the problem. It pro-vides a way for the individual lawyer todo something concrete by reforminghimself or herself. In this way WhyLawyers Lie makes a contribution madeby no other book known to this writer.

But why should any of us care? IfPerlmutter found himself unhappywith the practice of law and sought asolution that made him feel more com-fortable with himself, why should thatbe of interest? The answer lies in thesurveys that show how unhappy manylawyers are. Deborah Aaron's seminalwork, Running from the Law, was justthe beginning of the literature thatshowed that many, perhaps most,lawyers are very unhappy with the

continued on page 62

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54 THE WASHINGTON LAWYER " SEPTEMBER/OCTOBER 1998

BOOKS in the LAWcontinuedfrom page 54

profession as they see and practice it.Perlmutter is not alone; he speaks formany, perhaps, most of us.

Yet, there is a larger reason. AbrahamP. Ordover's "The Lawyer as a Liar," anarticle that appeared in the AmericanJournal of Trial Advocacy in 1979, madethe telling point that lawyers have a spe-cial responsibility to our system of legaljustice and to its preservation. (Thispoint was made again recently byRoberta R. Katz in Justice Matters.) Or-dover makes clear that our system oflegal justice itself is frustrated when itsprincipal participants act so as to effec-tuate its perversion. He makes the im-portant point that when lawyers lie,they act to pervert the system that justi-fies their existence.

Today the United States preachesto the world the advantages of the ruleof law. The Central and Eastern Euro-pean Law Initiative, sponsored by theAmerican Bar Association, attempts tobring to the former Soviet bloc the ad-vantages of the rule of law aspreached, if not practiced, by theUnited States. Trial lawyers of everypersuasion have demonstrated the ad-versary and jury systems to audienceson every "disadvantaged" continent.

Yet, if we persist to act in ways thatpervert the rule of law through our ownpersonal conduct, we can, and should,be accused of hypocrisy. Judges and ju-ries have roles that depend on the par-ticipation of lawyers. But that partici-pation must be honorable in order toeffectuate the system that we so justlyproclaim. As Sisele Bok and AbrahamOrdover make clear: truth is very diffi-cult to ascertain, but truth-telling isnot. When lawyers countenance lyingby clients, and when we lie ourselves,we act to destroy the system that weproclaim.

Thus, while Perlmutter is right indescribing the damage that each of uscauses ourselves and often our clientswhen we act as Rambo perverters ofjustice, the damage we cause is evengreater when viewed in the broadercontext. Perlmutter's contribution istwofold: he makes clear that such ac-tion makes each of us odious to our-selves, and he provides a way out thatis personal and obtainable by each ofus. For that reason, Why Lawyers Lie isa significant book that should receivewide circulation in the profession.

firm as a partner...Tommie S. Cardinhas joined Butler, Snow, O'Mara,Stevens & Cannada in Mississippi, andFrank 0. Crosthwait Jr. joined the firm asof counsel... Christopher K. Car and LeahE. Schwartz have joined Vinson & Elkinsas associates and Mark S. Laufinan hasjoined the firm as of counsel... Butler C.Derrick Jr. has joined Powell, Goldstein,Frazer & Murphy as a partner andLawrence R. Fullerton has rejoined thefirm as a partner... Donald W. Douglas,formerly a partner with Ball Janik, hasjoined Miller Nash in Portland, Ore-gon... David Douglass and Alison Duncanhave joined Porter, Wright, Morris &Arthur as partners, and Heather Stewarthas joined the firm as an associate...David D'Zurilla has been named partnerat Lane, Aitken & McCann, and Mark A.Wurm has joined the firm as a partner...Julie Edmond has joined Covington &Burling as of counsel and Jasper A.Howard has returned to the firm as a part-ner after serving three years as specialcounsel with the Internal Revenue Ser-vice... Scott B. Elkind has been namedpartner at Greenberg & Bederman andJonathan M. Pertchik joined the firm asan associate... Robert C. Eustice has be-come a full member and director ofSpirer & Goldberg... Margaret G. Farrellhas joined Cohen, Milstein, Hausfeld &Toll as of counsel... Gregory Ferenbachhas been named senior vice presidentand general counsel at the Public Broad-casting Service... Mark Fitzsimmons hasjoined Steptoe & Johnson as a partner...Richard A. Froehlinger III, Eileen M. Green-baum and Ronald A. Milzer have joinedBallard, Spahr, Andrews & Ingersoll asan associate, a staff attorney and of coun-sel, respectively, and Kelly M. Wrenn hasbeen named partner... Warwick "Bud" R.Furr II, Christopher B. Hanback, and JanisB. Schiff have joined Holland & Knightas partners; former congressman ThomasRailsback joined the firm as of counsel,and Tara A. Scanlon has joined the firmas an associate... Philip S. Gallas hasjoined Sandier, Travis & Rosenberg as amember... Matthew W. Greene has joinedSchumack & Smith as an associate...Thomas W. Greeson has joined Hazel &Thomas... Angela C. Goelzer, Thomas S.Harman and Monica L Parry have joinedMorgan, Lewis & Bockius as of counsel,partner, and associate, respectively... IraD. Hammerman has been named manag-ing partner of Rogers & Wells' Washing-ton, D.C. office... John F. "Jack" Harring-ton has rejoined Fulbright & Jaworski as

i; a partner andSteven M. Kramer

has joined the firm... Christopher Hickshas joined Barnes & Thornburg... Patri-cia L. Irvin and Kurt L.P. Lawson havejoined Shaw, Pittman, Potts & Trow-bridge as partners... Stephen L. Kabler hasjoined National Geographic ChannelsWorldwide as director of business andlegal affairs... Joel R. Kaswell has joinedLukas, Nace, Gutierrez & Sachs, andGerald S. McGowan has left the firm tobecome U.S. Ambassador to Portugal...Patricia R. Lane has joined the HumaneSociety of the United States as directorof program management and regulatoryaffairs of the Wildlife and Habitat Pro-tection Division... Bradley E. Lerman hasjoined Winston & Strawn as partner...Scott H. Lyon has joined ATCALL, Incas general counsel... Colleen P. Mahoney,acting general counsel of the Securitiesand Exchange Commission, has joinedSkadden, Arps, Slate, Meagher & Flomas partner... Samuel M. Maruca has joinedMiller & Chevalier... Edward J. McGrathhas joined Verner, Liipfert, Bernhard,McPherson & Hand as a shareholder...William P. McGrath Jr. has been named apartner at Porter, Wright, Morris &Arthur... Steven Mirmina has joined thepublic affairs firm of APCO Associates asa senior associate.

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62 THE WASHINGTON LAWYER - SEPTEMBER/OCTOBER 1998