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  • Should We Allow Our Clients to Tell Us the “Whole Truth?”
Should We Allow Our Clients to Tell Us the “Whole Truth?” December 2, 2013

Choosing the right attorney to represent one’s legal interests is often a topic of conversation, publication, and dissension among the practicing bar and folks with a drum to beat. Ward Davison and James Gill published an article in the Texas Bar Journal this month which was appropos . . . The Perfect Match. The article was well written and informative. However, one weakness in their modus operandi was the “generalist” nature of the advice, especially regarding how to start the attorney/client relationship off on the right foot. I don’t know about civil lawyers, but an experienced criminal attorney may take a substantially different approach to learning about the prospect’s criminal charges at the intake interview. (Yes, I’m nitpicking) But following are my thoughts.

 

Davison and Gill recommended the prospective client “not withhold any information” from the attorney with whom they were interviewing. Further, they advised the prospect to “tell the truth, all the truth, andThe Whole Truth nothing but the truth” during the initial interview. However, from a tactical point of view I rarely want my client telling me “all the truth” at our first meeting . . . not by a long shot. Occasionally, a Bryan-College Station criminal defense attorney who knows too much is hamstrung later when advocating the client’s position, especially before a jury. The point being we don’t call our client as a witness unless we know he’s telling the truth.  Most often, the client does not know what the “truth” is until they are fully informed of the facts and law bearing upon their guilt or innocence. In the same vein, a defense lawyer who knowingly permits their lying client to testify is treading on unethical ground. 

 

Our approach is to elicit only what we need to quote a fair price for legal services. Clients often want to tell us “everything.” But here is where the experience (and caution) of the defense attorney begins to bear fruit. Before I get the client’s whole story, I want my discovery first. Sometimes a legal defense or key factual issue turns on information in the discovery. Most times we want our client acquainted with the law and the prosecution’s facts before we discuss the “truth.” For example, it may be important my client understands the law of self-defense before telling me everything. The bottom line is we dare not contaminate a potential winning legal or factual issue by having the client commit to a set of facts before knowing how the prosecution can prove guilt. 

 

Make no mistake, this is smart lawyering. Parry any imputation you are unethical, slimy, or deceitful. You are not! To the contrary, helping the client place their best foot forward is part of our responsibility. Helping them understand the law and facts before committing to their story can be the difference between failure and burning the prosecution’s feet on the fire of proof beyond a reasonable doubt. Good luck.

COMMENTS

6 thoughts on “Should We Allow Our Clients to Tell Us the “Whole Truth?”

  1. I disagree with the proposition that we should not hear the whole story as the client perceives it. If we give the law to the client and allow him/her to twist their story to fit the law we are not getting a true picture of what happened and cannot make informed decisions about a proper defense in a criminal case or a proper approach in a civil case. In fee setting, we are unable to forecast the time that will be necessary to handle the issues and conduct discovery.
    I do a great deal of criminal and immigration work that involves filings and discovery that depend on accurate information from the onset. When the client is given the law first, they leave out details that may appear to be negative to them but which can be dealt with if covered early on. In preparation for an immigration trial this can be fatal and result in a finding that they have been deceptive or are not reliable. This can be fatal to the case. In the criminal context, though the client may not recognize self defense, if it is a potential defense it will not be compromised because the client was not able to articulate it at first. It will come out in context and can be developed later.

  2. Kenneth: Thanks for your thoughts on this. I imagine if we took a poll of criminal defense attorneys who had been defending for some time, we’d hear stories from lawyers who had asked their clients, on a particular case, too many questions. It may not be the rule, but it’s certainly the exception. My point was wanting to learn about my client’s case from the prosecutor’s point-of-view first, since they bear the burden of proof, then go from there. If my client looked good on a DWI video, I don’t necessarily want to know he just consumed a 12 pack, especially if it’s a case where my client may be called to testify. I would never allow my client to lie under oath and I don’t want to hamper his ability to defend himself because he told me too much. Anyway, I appreciate you making a good comment.

  3. I disagree with the concept that our client should not tell us the “whole truth” at the outset, and that we wait until we have discovery until we get into the details of our client’s story. In my jurisdiction, I cannot get discovery until the my client has been bound over for trial following the preliminary hearing. Even then, particularly if the case involves some complicated facts, I may not receive all of the discovery for several weeks. In the meantime, there are time limits that I have to pay attention to vis-a-vis filing of certain motions, such as change of venue, etc. If I don’t know the entire story from my client before then, I risk committing malpractice if I later determine that I should have filed a motion that is now barred because of a missed deadline.
    More importantly, I want to know as early as possible whether I have a factual defense to the charges. The best way to learn that is to interview my client thoroughly about the complained of incident. I start formulating potential trial strategies as early as the initial interview–the earlier I can determine whether my client would make a good witness the better. Finally, although the client has the final say whether he or she testifies at trial, my experience has been that they will heed my advice whether to do so. Much of that advice is based on my knowledge of all of the facts of their case. The last thing I want to see occur is to let my client testify at trial and hear something for the first time out of his mouth during direct from the prosecutor. I want to know everything I can, warts and all, as early as possible so as to avoid that nightmare scenario.

  4. @Alf: Your method looks sound to me. Certainly, procedural time limits can impact what we want to know, and when. If I’m facing a deadline, like yours, I’d probably do some things differently. As long as we are providing the best service possible to our clients, our different styles of defending criminal cases matters little in the end. Good luck with your practice and thanks for leaving a comments.

  5. I am sorry to put this comment so tersely. This scenario is bullshit. There is a great difference between defending a client and insisting that the prosecution present a case against the client beyond a reasonable doubt and presenting evidence ourselves. If we knowingly present evidence that we know is false, the lawyer can have a problem. However, if you are not presenting false evidence and merely attacking the prosecution’s case and attacking the veracity and/or accuracy of the prosecution witnesses and evidence, there is no ethical problem. Is it unethical to tear apart an eyewitnesses account even if you know they are correct. The answer is no. On the other hand if your client does not tell you everything, you are going to encounter surprises in the case for which you are unprepared and can not answer. You may walk into disaster by a line of questioning because your client failed to tell you the whole story. I had a case where my client insisted that he never met with the informant drug buyer at the meetings with my client with anyone else present. I presented a scenario to the jury that the agents were not present and and they did not use proper controls before and after the meetings and thus the informant is setting up my client. After repeatedly pounding this issue, late in the trial, we were presented with a female witness who was present several times and was also an agent. I turned to my client and said “What?” He said he did not think she was important. I told him “Enjoy your vacation.” I tell this story to all of my clients. I always insist that they client tell me everything so that there are no surprises. From this I can fashion an attack on the prosecutions case etc. and what defense to mount. This is not the same as suborning perjury or interjecting facts know to be untrue. In an ID case are you telling me that you cannot attack the witnesses ability to identify the client at trial, if you know he was the perpetrator. I think not. It is our job to insist that the prosecution present a case beyond a reasonable doubt and if they fail because of my efforts, it matters little if they were right. We do not always seek true justice. We insist that the prosecution do its job properly and present their case. If they fail for whatever reason then our job is fulfilled. This may sound cold-hearted and my mother would surely disapprove, but I believe this is our function as a criminal defense attorney. We are not here to seek justice, we are here to defend them, now matter of whether they are guilty, and make sure the prosecution does it right. Otherwise, only represent innocent people or get ready to get blasted when you encounter surprises in the case.

  6. I agree with Richard Rehbock, and I’m really surprised to hear that any DUI lawyer wouldn’t want to know that their client had “just consumed a 12 pack” before getting pulled over, especially in a case where the client might testify. Imagine these two conversations:

    During the client-interview at the lawyer’s office:
    Lawyer: I think you have a great case – you didn’t make any statements to the police, and you performed very well on your field sobriety tests.
    Client: There’s one thing you should know – just before I got pulled over, I’d been pounding –
    Lawyer: WAIT! Don’t tell me anything like that!

    Later, at trial, after defendant has taken the stand and testified:
    Prosecutor: Had you been drinking that night, Mr. Defendant?
    Client: Well, some, yes.
    Prosecutor: What exactly did you drink that night?
    Client: Twelve beers…

    Seriously? Would you really not want to know this information ahead of time? If you’d known this information, you probably wouldn’t put your client on the stand. And if you knew you couldn’t put your client on the stand, you’d probably also consider some plea offers (or perhaps DUI diversion). But instead, you let yourself get blindsided, and your client looks like a drunk who is going to jail.