Patricia King

‘Tis the season of liars, it seems. They are everywhere, some connected to the highest levels of government, some are a lawyer’s client, and some have lied under the lawyer’s watch. An older attorney with whom I worked early in my career once advised me, “When you see the client coming, you think ‘Here comes the enemy.’” Having had more than a few clients since then, I have come to realize that his cautionary words were sound advice.

We may be fortunate enough to be representing clients who are part of the news cycle, but the very real question that remains is how to handle a client you suspect of lying.

1. Let the client know you expect the truth

The first step in this process calls to mind the old adage that “An ounce of prevention is worth a pound of cure.” You can’t always detect an untrustworthy client at the first interview. If and when you can, you should seriously consider passing on the representation. But no matter the client, it is wise to spend a few minutes, and a paragraph in your retainer agreement, setting out the expectation that the client is going to be truthful and forthright during your representation. This may seem silly, and you may be hesitant to address the issue, lest the client feel insulted by your skepticism. However, keep in mind that liars are manipulators, and manipulators thrive on those who lack the assertiveness to confront them.

I have included a paragraph in my retainer agreement that addresses the client’s responsibility to cooperate in the representation – this includes updating contact information as necessary, giving truthful information, providing documents and other information promptly upon request, and otherwise cooperating in the relationship. Also included is the warning that failure to cooperate will render the representation unreasonably difficult and be grounds for withdrawal under Rule 1.16 of the Rules of Professional Conduct. This is only one paragraph in the entire fee agreement, and can easily be addressed by stressing to the client that we are a team, and that each of us has a part in accomplishing a successful outcome. Most clients understand and agree with this proposition, and are left with the understanding that we are working in a cooperative relationship towards a common goal.

2. Confront the problem early.

If the client later turns out to be less than accurate on a regular basis, pointing out his responsibility under the retainer agreement can be an effective way to initiate discussion of the problem. It also gives you a way out of the representation – after all, the client is not keeping his end of the bargain he agreed to.

3. Prepare.

Preparing for the encounter with the client may take some time. Before you go into the meeting, you should process your own reaction to a client who lies. The first and most important rule, don’t take it personally. The client is lying to meet his needs, not as a reflection on you. Chances are the client would lie to any lawyer. But if you are angry going into the meeting, you will likely be angrier by the time it is over, and nothing will be accomplished except one of you will fire the other, and a grievance may appear in the mail shortly thereafter.

4. Try to figure out why your client is not truthful.

Gather your objective evidence to support your claim that the client has not been forthcoming. You will need a well-documented case, because a real pro will try to wiggle out by denial, and blame you. Ever heard of gaslighting? Consider what the client’s motive are for failing to disclose all the relevant details – is he afraid you are going to judge him if you knew the truth? Are the facts he is hiding affecting his legal position? Is he not telling you things he cannot bear to admit to himself? Or is he just a control freak? Whatever the reason, think through the situation and try to come up with a theory about why the client might lie. Offering up an explanation and empathy for the client’s predicament might allow the client to save face and discuss the underlying problem. If you don’t, you will make the conversation way more difficult than it has to be. Clients who lie generally have a reason for doing so, and if you can get to the bottom of that you may be able to salvage, and even improve, the relationship.

5. If all else fails, save yourself

If your client is a real sociopath and can lie without compunction, all you can do is save yourself. This client will throw you under the bus in a heartbeat. This all assumes that you have been able to nip the problem in the bud, and that the client’s falsehoods and have not infected any situation that would trigger your ethical obligations to take remedial action with opposing counsel or the court.

Clients offer many challenges. Sometimes the most challenging become the most rewarding, if the challenges are addressed and dealt with. Keep in mind there is no ethical obligations to go down in flames with your client.

Patricia Kane is a former chief disciplinary counsel for Connecticut, now with Geraghty & Bonnano in New London. She can be reached at Pking@geraghtybonnano.com.