04/29/2014 05:12 pm ET Updated Jun 28, 2014

Challenging a Client's Story

Any client, but particularly a criminal client, wants his lawyer to believe him -- whether or not he is being honest with him. If in fact the client is truthful, it goes without saying that he would want the lawyer's full confidence in his account, thus to better represent him. But, what if the account is not quite true, or complete. How many clients really tell their lawyer "the truth, the whole truth, and nothing but the truth?"

There are a variety of reasons why a client might not confide the actual events. Perhaps he thinks the lawyer will be a more zealous advocate for him if he is perceived to be innocent. Or, an unsophisticated client may think the lawyer actually wants the client to lie, so that the lawyer won't be hampered by knowing the guilty truth. Maybe he doesn't trust the lawyer to maintain the confidence, and therefore withholding the truth will better keep secret the horrible reality. Perhaps he's pathological. Maybe he is just plain embarrassed.

What clients may not realize, however, is that most weather-beaten criminal defense lawyers have "heard it all" and are sufficiently skeptical to often be able to separate the wheat (truth) from the chaff (falsity). In fact, oftentimes, they can bring the client to his knees with the most elementary "cross examination," so that the client can do nothing other than admit that their earlier story was not -- precisely or completely -- the truth.

But not always. Sometimes a persuasive -- but deceitful -- client can "get over" with his lawyer. He can convince the lawyer that he is completely innocent of, say, a significant fraud. Or, at the very least, he may persuade counsel that he participated in the fraud only to a sharply limited extent; or that he participated only once when his conduct spanned years (prevarications which, if revealed, would almost certainly make a significant difference in punishment). Bear in mind, a decision to engage with the prosecutor by admitting guilt only works if the defense is completely up front -- if the prosecutor learns (or worse, already knows) something that the defense withheld, there will be hell to pay for it in punishment.

On the basis of such deceitful "persuasion" by the client, the lawyer willingly goes to bat and dukes it out with the prosecutors to convince them of the error of their ways -- that is, their investigative thinking. Maybe, sometimes, it works: the lawyer is unknowingly (and in good faith) used as an instrumentality to "sell" the client's story to the prosecutor, and the client's strategy succeeds.

More often than not, though, the strategy will fail. The lawyer will have been naïve. He took the client's story at face value and somehow failed to do what lawyers do -- question the client, look at the facts sideways, upside down and inside out and punch holes the way a prosecutor would. Meaning, assuming he is the gifted lawyer that he is, on this occasion, he wasn't scrupulous enough in trying to make sure he would be selling "the God's honest truth" to the prosecutor.

And so, after the lawyer's brilliant performance in advocating for the client, maybe even allowing his client to tell his story directly to the prosecutors, counsel is hit between the eyes with a bullet from the prosecutor's smoking gun that completely decimates what he was trying to do. His strategy is a complete failure. The attorney will go home, perhaps to sleepless nights (even though his approach was based on false information), but the client will, likely, not being going home at all -- his bad situation having worsened considerably by having lied directly to the prosecutors, or having allowed his lawyer to market to them a bogus story on his behalf.

Of course the client is at fault. He concocted a story notwithstanding that any lawyer worth his salt would have made clear that he wanted to hear the truth. And let's face it, most sophisticated clients would know that if he is telling the lawyer anything, it should be only the truth and that there are potentially severe consequences down the road if the lawyer is working with false assumptions.

But, isn't the lawyer at fault too? After all, every criminal lawyer knows -- although this is hard to put to paper -- that a significant percentage of clients, at least for some period of time, communicate some level of falsity to their lawyer, either deliberately or because of shame, self-delusion, distraction or any number of reasons. It's just the nature of the human condition.

Yes, lawyers know that people lie. So the question is, however persuasive the client may be in telling his lawyer his "version" of the operative facts, may the lawyer sit by idly when the client narrates his account and just accept "whatever" on blind faith? Or, limited to the confessional booth of his law office and in the manner he chooses to do it, does he have an affirmative duty to be the client's "prosecutor?" Meaning, isn't the attorney required to assure himself that the client won't make the situation worse by having the lawyer tell a "lousy story" on the client's behalf or, even worse, letting the client himself tell that same story?

To ask the question, of course, is to answer it. A lawyer must be vigilant in assuring himself that he is not getting shoddy merchandise from his client. But it's a tough job. The lawyer must walk a tightrope -- getting the facts from the client and, at the same time, maintaining the client's trust and confidence even when the client might sense betrayal by his own horseman appearing to change sides before the joust.

The client must be made to understand that his lawyer is (ethically) duty bound -- to both himself and the client -- to not merely inquire, but to interrogate. That the best way to present the facts is to know them, which may mean that the lawyer must sometimes be more of the client's prosecutor than the prosecutor himself. A client should want his lawyer to poke holes in his story because he cannot assume -- ever -- that the prosecutor has not done his homework. And at the end of the day, there can be no question that the client, after some hard and perhaps fiercely disagreeable days with his own lawyer (and perhaps his own conscience), will often end up far better off in the long run.