ARTICLES

LYING TO CLIENTS

LISA G. LERMANt

TABLE OF CONTENTS

INTRODUCTION ................................................. 661

I. MODELS OF LAWYER-CLIENT RELATIONSHIPS AND THE
LAWYER'S DUTY OF CANDOR .............................. 666
II. SHOULD WE PERMIT LAWYERS TO DECEIVE THEIR
CLIENTS? .............................................. 675
A. Is It Wrong to Deceive? .............................. 676
B. Harms Caused by Deception .......................... 679
C. Where to Draw the Line ............................. 684
III. PERMISSIBLE DECEPTION: THE ARTICULATED IDEOLOGY ON
CANDOR TOWARD CLIENTS ............................... 687
A. Disciplinary Rules ................................... 687
B. Malpractice Law .................................... 696
C. Consumer Law ..................................... 698
IV. WHAT LAWYERS LIE ABOUT ............................... 699
A. Empirical Information About Deception of Clients ........ 699
B. The Lawyer Interviews ............................... .703
1. Billing ........................................ 705
a. Doing Nonessential Work - Running the Meter.. 706
b. PaddingBills and Double Billing ............... 709
c. Meeting Minimum Firm Hours Requirements ..... 713
d. Premium Billing and Itemization ............... 714
e. Estimating Hours-Non-ContemporaneousRecords 716
f. Explaining the Bills ........................... 717

t Assistant Professor of Law, The Catholic University of America, The

Columbus School of Law. B.A. 1976, Barnard College, Columbia University. J.D.,
1979, New York University School of Law; LL.M., 1984, Georgetown University Law
Center. I am grateful to those who shared their stories about deception of clients
with me; their experiences are central to this project. I am grateful for their
assistance to Philip G. Schrag, Michael Davis, Robert DestroJoseph Holohan, Claire
Lerman, Leonard Lerman, David Luban, Nell Newton, and Nancy Sachitano.

(659)
660 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

g. Charging Clients for Perks, Leisure, and

Administrative Time .......................... 718
h. The Impact of Client Confrontation ............. 720
2. Bringing in Business ........................... 721
a. Exaggeration of Expertise ...................... 721
b. Business Development ......................... 724
3. Covering Up Mistakes ......................... 725
4. Impressing Clients ............................. 730
a. Who Did the Work ........................... 730
b. Making the Work Look Easier or Harder ........ 732
c. Deception About What the Law Is ............... 733
d. Deception About the Value of a Case or the
Lawyer's Fee ................................ 734
e. Withholding Negative Opinions of Clients ........ 735
f. Strategic Deception ............................ 736
5. Convenience and Control of Work Time ....... 737
a. When a Client Calls .......................... 738
b. Progress Reports on Work ..................... 739
c. Impact of Workload on Advice .................. 740
6. Deceiving Clients to Impress the Boss .......... 741
7. Law Firm Atmosphere ......................... 743
V. REGULATING DECEPTION ................................... 744
A. Can Deception Be Regulated? ......................... 744
B. Use of Rules to Regulate Deception .................... 746
C. Recommendationsfor Change in Regulation of Deception of
Clients ............................................ 749
1. Fee Questions ................................. 749
2. Lawyers' Representations Regarding Expertise.. 753
3. Advising Clients About Possible Additional
Work ......................................... 754
4. Communicating With the Client ................ 755
5. Duty to Confront Lawyers Violating Disciplinary
Rules ......................................... 756
Conclusion ................................................. 758
1990] LYING TO CLIENTS

That lies are necessary in order to live is itselfpart of the terrifying and ques-
tionable characterof existence. 1
Nietzsche

INTRODUCTION

Lawyers are not supposed to lie to their clients. Ever.' The dis-
ciplinary rules prohibit all conduct involving "dishonesty, fraud,
deceit or misrepresentation."' A lawyer must "keep a client reason-
ably informed about the status of a matter"4 and must "render can-

I F. NIETZSCHE, THE WILL TO POWER 451 (W. Kaufmann ed. 1968). Another
perspective is that of the Baker's Wife in Into the Woods: "Everyone tells tiny lies.
What's important, really, is the size." Sondheim & Lapine, Maybe They're Magic, INTO
THE WOODS (RCA Victor 1987). Scott Turow suggests that lawyer jokes have
replaced ethnic humor, and offers the following example: "How do you know when a
lawyer is lying? His lips move." Turow, Law School v. Reality, N.Y. Times, Sept. 18,
1988, § 6 (Magazine), at 52.
2 The ABA Committee on Professional Ethics and Grievances, Formal Opinion
81 (1932), issued long before the Code of Professional Responsibility was written,
argues that this proposition is self-evident and therefore specific rules are
unnecessary: "Misrepresentation by a lawyer is a cardinal professional sin. Of
course, no canon expressly states that a lawyer shall not knowingly make any
misrepresentation, but neither does any canon expressly state that a lawyer shall not
steal property entrusted to him by a client." Id.
The courts make categorical statements about the prohibition on deception.
The California Supreme Court, for example, stated in 1975 that "[a] member of the
bar should not under any circumstances attempt to deceive another." In re Cadwell,
15 Cal. 3d 762, 772, 543 P.2d 257, 262, 125 Cal. Rptr. 889, 894 (1975).
Other commentators emphasize the critical importance of truthfulness as a
characteristic of lawyers. Daniel Webster, in a speech to the bar of Charleston, South
Carolina, May 10, 1847, said: "[tlell me a man is dishonest, and I will answer he is no
lawyer. He cannot be, because he is careless and reckless ofjustice; the law is not in
his heart, is not the standard and rule of his conduct." Montgomery County Bar
Association v. Hecht, 456 Pa. 13, 21 n.9, 317 A.2d 597, 602, n.9 (1974) (quoting
Webster).
In 1844, George Sharswood, who is often credited with having started the field
of legal ethics in the United States, wrote:
No man can ever be a truly great lawyer, who is not in every sense of the
word, a good man .... There is no profession in which moral character is
so soon fixed as in that of the law; there is none in which it is subjected to
severer scrutiny by the public .... From the very commencement of a
lawyer's career, let him cultivate, above all things, truth, simplicity and
candor; they are the cardinal virtues of a lawyer.
G. SHARSWOOD, PROFESSIONAL ETHICS 168-69 (1844), quoted in Maryland State Bar
Ass'n v. Agnew, 271 Md. 543, 548-49, 318 A.2d 811, 814 (1974).
3 MODEL RULES OF PROFESSIONAL CONDUCT Rule 8.4(c) (1989) [hereinafter
MODEL RULE]; MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 1-102(A)(4) (1981)
[hereinafter MODEL CODE].
4 MODEL RULE 1.4(a).
662 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

did advice." 5 Loyalty and zealous representation are paramount

values within the bar. These values presume both a close relation-
ship between lawyer and client and total openness in the lawyer's
dealings with clients.
Real life is not so simple. Lawyers' professional lives are fraught
with conflicting obligations and objectives. Clients demand full and
undivided attention. Heavy caseloads with conflicting deadlines con-
stantly threaten to mar the facade of a smooth and orderly legal
operation so necessary to successful practice. Within a law firm, an
associate may have obligations to numerous senior lawyers whose
assignments compete for his or her attention. But to ask for a shift in
workload or an extension of time may engender disfavor among
those who have authority over salary and promotion decisions.
Impressing prospective clients is a prerequisite to successful pri-
vate law practice. In most types of practice, lawyers face considera-
ble pressure to bring in new clients. A solo practitioner needs new
clients to pay the rent and meet the payroll. In large firms, each law-
yer must attract business in order to become a partner and to earn a
share of the profits.
After a client has hired a lawyer or a firm, the problem of making
a good impression changes. Lawyers must maintain and cultivate
their clients' initial positive impressions. They must strive to main-
tain the pristine appearance of competence, while concealing errors
or delays that might cause clients to doubt their loyalty or expertise.
In an ideal world, lawyers would accomplish these goals by devoting
the time, attention, and resources necessary to do perfect work in
every case. In the real world, lawyers often cannot fulfill these aspi-
rations; sometimes they gain or maintain their clients' confidence by
creating illusions.
Moral philosopher Sissela Bok defines a lie as "any intentionally
deceptive message which is stated."6 She defines deception more
broadly, as encompassing "messages meant to mislead [others] ...
through gesture, through disguise, by means of action or inaction,
even through silence." 7 This broader category of deception is the
5 MODEL RULE 2.1.
6 S. BOK, LYING: MORAL CHOICE IN PUBLIC AND PRIVATE LIFE 14 (1979).
7 Id. Thomas Guernsey offers a lawyer's definition of lying as: "a statement
made with the intent to deceive which purports to state the existence, in unequivocal
terms, of facts or law contrary to the declarant's express knowledge." Guernsey,
Truthfulness in Negotiation, 17 U. RICH. L. REV. 99, 105 (1982). He urges that Bok's
definition is so broad as to "preclude negotiation since inherent in all negotiations is
some element of an attempt to mislead the other side." Id. at 105 n.34. Guernsey
explains that the purpose of his definition is to "provide a convenient means of
1990] LYING TO CLIENTS

subject of study here. This Article will examine overt misstatements

and deliberate omissions or failures to disclose information. The
determining factor in identifying deception is the lawyer's intent. If
the lawyer intends to deceive a client, he or she may accomplish this
by telling a lie or by withholding information.' Deception by omis-
sion and by commission are morally identical: the purpose and the
9
consequences are the same.
Lawyers deceive their clients more than is generally acknowl-
edged by the ethics codes or by the bar.'0 In some cases the decep-
tion may be appropriate (if, for example, it is used to protect a client

distinguishing various negotiating tactics which a philosopher might regard as

involving lies, but which are more crudely distinguished by lawyers on an operational
level." Id. at 105.
This Article does not seek to excuse or rationalize what happens in practice, but
to examine the deception that occurs and to ask whether that deception is justifiable.
Bok's definition is useful for this purpose.
8 But see Guernsey, supra note 7, at 116 (arguing that deception by silence
"would not generally constitute unethical conduct, absent some additional legal
obligation").
9 The ethical codes often distinguish between overt acts and failures to act. For
example, Model Rule 3.3(a) prohibits a lawyer from making a false statement of law
or fact to a tribunal, but imposes an affirmative duty to disclose material facts only if
necessary to prevent the client from engaging in criminal or fraudulent conduct.
Under this rule, a lawyer may mislead the court about the facts by omission but not
by action, as long as the lawyer does not assist the client in lying to the court. See
MODEL RULE 3.3(a); see also MODEL RULE 1.6 (drawing a similar distinction in the
confidential communications context).
This type of analysis is extremely common in the legal profession. The
distinction may be based on the lawyer's duty to maintain client confidences. Not
wanting to call lawyers liars, the drafters of the ethical rules have drawn lines that
allow lawyers to engage in deception that stops short of outright lying. Many
criminal lawyers do not object if a client lies on the stand, but some would not use the
perjured testimony in closing argument, thereby maintaining the appearance of clean
hands. See generally Freedman, Perjury: The Lawyer's Trilemma, 1 LriTGATION 26, 30
(1975) (arguing that criminal defense attorneys should "examine the perjurious
client in the ordinary way and... argue to the jury ...the testimony presented by
the defendant"). Ethically, this position treads on thin ice.
One practical argument for maintaining an omission/commission distinction in
the ethical codes is that it is too difficult to identify violations that involve omission.
Even so, deception by omission should be prohibited if it is morally wrong. The
codes are intended as much to offer aspirational guidance as to create a basis for
punishing transgressors. See, e.g., MODEL CODE (Preliminary Statement) ("The Code
is designed to be adopted by appropriate agencies both as an inspirational guide to
the members of the profession and as a basis for disciplinary action when the conduct
of a lawyer falls below the required minimum standards stated in the Disciplinary
Rules.").
10 See infra text accompanying notes 186-338. Recent research on doctor-
patient relationships suggests that lawyers are not alone in their relativistic attitude
toward candor. One survey of 211 physicians indicated that most doctors will tell
small lies and some will tell large ones if they believe that they or their patients will
664 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

from injury); in other situations it is unethical and exploitative. Law-

yers often deceive their clients by failing to share information to
which the lawyer has exclusive access. The lawyer, though a fiduci-
ary, may be in a dominant position in relation to the client because of
his or her greater knowledge of the legal system. The client's rela-
tive ignorance creates opportunities for undetected deception. 1 1
Most lawyer-client communication occurs in private, off the rec-
ord. No public official is present. No one keeps a record of the
meetings, unless the lawyer or the client takes notes. Consequently,
the lawyer's conduct receives less scrutiny than when the lawyer
appears before a tribunal or meets with another lawyer. Deception
in such circumstances may be more likely to occur and less likely to
be apprehended.' 2
For this study of deception"3 of clients I conducted candid, con-
fidential interviews with twenty American lawyers. I asked them to
identify instances in which they had deceived clients or had seen
others do so, and to discuss whether the conduct in question was
justifiable and why. The data collected is anecdotal in nature.14 The

benefit. See Novack, Physicians'Attitudes Toward UsingDeception to Resolve Difficult Ethical

Problems, 261 J. A.M.A. 2980 (1989).
11 Here I am referring primarily to lawyer-client relationships in which the
clients are individuals rather than institutions. When the client is a large corporation,
the dynamics may be reversed. The lawyer may be dealing directly with in-house
counsel who is as sophisticated as the firm lawyer. See infra note 302 and
accompanying text. Some lawyers are financially dependent on a major client. These
situations in which the lawyer is subordinate to the client impose different pressures
on the lawyers from those present if the lawyer is in a relatively powerful position.
Deception is used to solve problems in both types of situations.
12 The privacy of such communications also makes it quite difficult to gather
information about what happens when lawyers talk to their clients.
13 Lying and deception recently have become the subject of a great deal of
popular attention. See, e.g., McLoughlin, A Nation of Liars, U.S. NEWS & WORLD REP.,
Feb. 23, 1987, at 54, 56 (suggesting in a cover story that public concern over honesty
and standards of behavior has reached its highest level since Watergate); Goleman,
Lies Can Point to Mental Disorders or Signal Normal Growth, N.Y. Times, May 17, 1988, at
C 1, col. 4 (reporting a study indicating that adults lie an average of thirteen times per
week); Halloran, Officers and Gentlemen and Situational Lying, N.Y. Times, Aug. 6, 1987,
at A24, col. 1 (suggesting that the "situational ethics" rationale for lying in the
military in which protection of national security is offered as an excuse for lying is "a
vestige of the corruption that spread through the armed forces during the conflict in
Vietnam"); Harrington, Revenge of the Dupes: Every Lie Demands a Dupe, and Dupes Get
Even, Wash. Post, Dec. 27, 1987 (Magazine), at 17 (discussing in a cover story the
public reaction to deception by public figures, including former President Ronald
Reagan, Senator Joseph Biden, televangelist Pat Robertson, former Senator Gary
Hart, Lieutenant Colonel Oliver North, and others).
14 This type of study might be described as "casual empiricism," the objective of
which is to produce an interesting narrative using specific information from real
1990] LYING TO CLIENTS

Article does not purport to answer the difficult question of how

much deception of clients takes place, nor the question of what types
of deception are typical.
Nevertheless, some patterns did emerge from the interviews.
The lawyers reported pervasive deception relating to client billing,
some examples involving large amounts of money.' 5 These include
stories of padding bills, billing two clients for the same time, doing
unnecessary work to run the meter, and failing to disclose the basis
of the bill. They offered numerous examples of deception about the
type or degree of expertise possessed by the lawyer or the law firm. 16
Most of the lawyers reported deception about mistakes made in the
course of representing clients.' 7 They reported countless decep-
tions designed for the lawyer's convenience or to control the flow of
work. Many associates reported that they deceive their clients some-
times because they need to create a particular impression on a part-
ner. 8 This limited inquiry suggests, then, that some forms of
deception may be widespread,' 9 and that this problem requires more
20
comprehensive study.
This Article will analyze both direct deception by lawyers of
their clients and deception communicated through a third party.
Within this framework, the Article will explore when, if ever, it is
morally acceptable to be less than fully candid with a client. It will
explore what damage results from deception of clients. The Article
also will examine the extent to which ethical codes or other law ade-

situations. This Article is an initial inquiry into an area that calls for a larger
empirical study.
15 See infra text accompanying notes 196-253.
16 See infra text accompanying notes 254-66.
17 See infra text accompanying notes 271-87.
18 See infra text accompanying notes 315-27.
19 While I was writing this Article I discussed the topic with many practicing
attorneys in addition to those I interviewed. The lawyers most often reacted either
by offering additional stories of deception they had seen or perpetuated ("It happens
all the time" was a common phrase) or by becoming angry or defensive.
20 Deceptive behavior may vary by geographic area (e.g., the high pressure of
New York City law practice might foster more frequent deception of clients) or by
type of practice (e.g., corporate lawyers dealing with in-house counsel as clients
might engage in deception that differs from that of personal injury lawyers who have
individual, non-lawyer clients). See Guernsey, supra note 7, at 100-01 (noting that
"truthfulness" is a nebulous concept among lawyers and is significantly affected by
the legal stratum in which a lawyer serves). Also, the tendency to deceive clients or
the type of deception may vary according to the sex of the lawyer. See generally C.
GILLIGAN, IN A DIFFERENT VOICE (1982) (suggesting that men and women make
moral judgments differently, and that women deal with people in a more intimate,
less rule-oriented fashion than men do).
666 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

quately addresses issues of candor and deception, and it will propose

changes in law and in the practice of law that might discourage some
types of deception.

I. MODELS OF LAWYER-CLIENT RELATIONSHIPS AND THE LAWYER'S

DuTY OF CANDOR

Most of legal ethics has been premised on an idealized model of

the lawyer's relationship to the client. The adversary system defines
the lawyer's role as one of zealous advocate and intense loyalist. 2
The traditional model posits that lawyers are motivated by altru-
ism, 22 and assumes that the lawyer allows no conflicting interests to
interfere with his or her devoted service to the client.2 3 The tradi-

21To his client [the lawyer] owes absolute candor, unswerving fidelity, and
undivided allegiance, furthering his cause with entire devotion, warm zeal,
and his utmost ability and learning ... countenancing no form of fraud,
trickery, or deceit which, if brought to light, would shame his conscience or
bring discredit to his profession.
H. DRINKER, LEGAL ETmICS 6 (1953), quoted in Patterson, An Inquiry into the Nature of
Legal Ethics: The Relevance and Role of the Client, 1 GEO. J. LEGAL ETHICS 43, 44 n.7
(1987). This perspective has been characterized as the "autonomy model." D'Amato
& Eberle, Three Models of Legal Ethics, 27 ST. Louis U.LJ. 761, 764 (1983).
Schneyer correctly points out that this model does not accurately depict a great
deal of what happens in law practice, and urges that many forces other than clients'
interests drive lawyers. See Schneyer, Moral Philosophy's StandardMisconception of Legal
Ethics, 1984 Wis. L. REV. 1529, 1569. In refuting philosophical conceptions of law
practice, he argues that "legal ethics has no paradigm, only some fragmentary con-
ceptions of the lawyer's role vying inconclusively for dominance." Id. at 1569.
Schneyer seems to argue that because the traditional ideology does not match the
realities of practice, no dominant ideology exists. The revisionist literature has pro-
liferated new models for lawyer-client relationships, but the traditional model has
been the dominant one.
22 Charles Curtis asserts that "[a] lawyer devotes his life and career to acting for
other people." Curtis, The Ethics of Advocacy, 4 STAN. L. REV. 3, 3 (1951). Charles
Fried defends the traditional conception of a lawyer's role as "a professional devoted
to his client's interests," Fried, The Lawyer as Friend: The Moral Foundations of the
Lawyer-Client Relation, 85 YALE LJ. 1060, 1060 (1976), as does Monroe Freedman. See
M. FREEDMAN, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM 9 (1975). Similarly,
Abraham Blumberg notes that in the Gideon, Escobedo, and Miranda decisions, the
Supreme Court "reiterates the traditional legal conception of a defense lawyer based
on the ideological perception of a criminal case as an adversary, combative proceeding,
in which counsel for the defense assiduously musters all the admittedly limited
resources at his command to defend the accused." Blumberg, The Practice of Law as a
Confidence Game: OrganizationalCooptation of a Profession, 1 LAW & Soc'Y REV. 15, 18
(1967) (No. 2). Douglas Rosenthal explains that this view of the role of the
professional "is that both parties are best served by the professional's assuming
broad control over solutions to problems brought by the client." D. ROSENTHAL,
LAWYER AND CLIENT: WHO'S IN CHARGE 7 (1974).
23 Schneyer points out that this model of undivided loyalty is part of a common
but misguided view that moral philosophers have of lawyers. See Schneyer, supra note
1990] LYING TO CLIENTS

tional scholars turn a blind eye to the self-interested aspect of law

practice, to the lawyer's concern about income and reputation, and
to the impact of those concerns on the lawyer's conduct toward
clients.24
For adherents of this model, it is unthinkable that lawyers lie to
their clients. The literature on truthfulness of lawyers focuses on
whether lawyers may deceive others on behalf of clients,2 5 whether
lawyers must reveal clients' perjuries, 26 and whether lawyers may lie
27
to opposing counsel to gain advantage in negotiating settlements.
The question of whether or when a lawyer may lie to a client simply
is absent. Neither the Model Code of Professional Responsibility ("Model
Code") nor the Model Rules of Professional Conduct ("Model Rules")
address this question, although both devote detailed analysis to
28
deception of adversaries and tribunals.
Scholars who accept the traditional model of the lawyer-client
relationship try to justify deception as necessary in order for lawyers
to fulfill their duties to their clients. 29 They urge that duties to cli-
ents are far more important than duties to the courts or the public.
A prominent example is James White's article about lying in negotia-

21, at 1546. In refuting this conception, he describes an unpublished study based on

interviews with 200 lawyers, which concluded that lawyers are "far from single-
minded advocates willing to push to the hilt any and all of a client's legally defensible
positions." Id. at 1546, (citing D. Landon, Clients, Colleagues and Community: The
Shaping of Zealous Advocacy in Country Law Practice (n.d.) (unpublished
manuscript)).
24 Charles Curtis, for example, contends that "[y]ou devote yourself to the
interest of another at the peril of yourself. Vicarious action tempts a man too far
from himself." Curtis, supra note 22, at 6.
25 For an early articulation of this issue, see id at 6-13.
26 See, e.g., Wolfram, Client Perjury, 50 S. CAL. L. REV. 809, 870 (1977) (arguing
that specific new rules are needed on client perjury, including rules that witness
testimony may be offered only when the attorney has no reason to believe the
testimony in not factually correct, and that attorney disclosure is required when a
client declares her intention to commit perjury).
27 See White, Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation,
1980 AM. B. FOUND. REs.J. 926 (1980); Guernsey, supra note 7, at 99; Dahl, Ethics on
the Table: Stretching the Truth in Negotiations, 8 REV. OF LITIGATION 173 (1989). But see
Hazard, The Lawyer's Obligation to be Trustworthy When Dealing with Opposing Parties, 33
S.C.L. REV. 181 (1981) (arguing that it is impractical to articulate rules defining
standards of trustworthiness for attorneys in their dealings with opposing parties).
28 See infra text accompanying notes 135-39.
29 Sometimes these scholars use crabbed legalistic definitions. Professor
Hazard, for example, defines "trustworthy" as "truthfulness of statements made as
representations," to exclude certain types of statements "that are literally false" that
social conventions allow. Hazard, supra note 27, at 182-83. This type of definition
assumes away much questionable conduct. See supra notes 6-9 and accompanying
text.
668 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

tion.f White makes a somewhat circular argument. He urges that

most lawyers deceive other lawyers when negotiating settlements, 3 '
that if the rules prohibited them from doing so the rules would be
violated, 2 that because negotiation takes place in private no third
party can enforce the rules,3 3 and that therefore the rules should
allow them to deceive one another.
White urges that standards about deception must be flexible
because styles of negotiation vary from place to place and from one
type of practice to another. He confuses truthfulness, which
depends on the speakers intentions rather than the accuracy of the
speaker's statement,3 " with truth, which he urges us to treat as rela-
tive rather than absolute.3 " As truth is difficult to determine, he
claims that truthfulness cannot be regulated successfully. White's
conception of what should be is limited by what is. The boundaries
of his moral analysis are set by the norms of contemporary practice.
The result is more a rationalization for morally questionable behav-
ior than a critical analysis of what standards are appropriate.
In recent years many scholars have reexamined the nature of the
lawyer-client relationship. Much of this literature has rejected the
traditional notion of the lawyer's role, and has reconceptualized law-
yer-client interaction based on moral analysis and on empirical
examination of what actually takes place in interactions between law-
yers and clients. I will refer to this group of scholars as "the
revisionists."
One of the best-known critics of the traditional model of lawyer-
client interaction is Judge Marvin Frankel, who urges that the lawyer
owes a greater duty to the court than the conception of exclusive
loyalty to the client would allow. Such intense loyalty to the client,
he argues, leads to too much deception of tribunals.3 6 Other schol-

30See White, supra note 27.

31 In fact he argues that lawyers have a responsibility to their clients to mislead
other lawyers in order to be successful in negotiation. See id. at 927.
32 White urges that:
if the low probability of punishment means that many lawyers will violate
the standard [concerning truthfulness in negotiation], the standard
becomes even more difficult for the honest lawyer to follow, for by doing
so he may be forfeiting a significant advantage for his client to others who
do not follow the rules.
Id.
33 See id. at 926.
34 See S. BOK, supra note 6, at 6.
:31 See White, supra note 27, at 931.
36 See Frankel, The Search for Truth: An Umpireal View. 123 U. PA. L. REV. 1031,
1035-41 (1975).
1990] LYING TO CLIENTS

ars have launched a frontal attack on the legal profession, asserting

37
that lawyers lie too much in general.
The most recent literature criticizes the traditional model of law-
yer-client relationships as being harmful not only to the courts, but
also to the clients for whose benefit the adversary system supposedly
exists. This literature criticizes lawyers as paternalistic,3" manipula-
tive, or exploitative of their clients. Several scholars propose meth-
ods of shifting the balance of power between lawyer and client
toward the client.39 This Article is part of that dialogue and looks at
situations in which lawyers have been dishonest with their clients.

37 See, e.g., Burke, "Truth in Lawyering'" An Essay on Lying and Deceit in the Practice
of Law, 38 ARK. L. REV. 1, 4 (1984). Burke states:
For years we have "winked, blinked and nodded" at blatant, if not
outrageous, lying and deception in pleading, negotiating, investigating,
testifying, and bargaining. In almost every aspect of our professional
practice we have come to accept, in fact to expect, a certain amount of
lying and deception.... Whether predicated on the seemingly sacrosanct
grounds of lawyer-client privilege, client confidentiality, or zealous
advocacy, or on the less hallowed grounds of "puffing," "bluffing," and
accepted conventions, lawyer lying and deception cannot be squared with
any principled statement of the purposes and goals of the profession.
Id. at 2-3 (citations omitted).
Burke mentions the importance of lawyers being honest with their clients and
makes a few conclusory comments, but then moves on to what he seems to regard as
a more serious issue of lawyers assisting clients in the deception of others. See id. at
5.
38 Judith Maute describes a paternalist model of lawyer-client interactions in
which:
the lawyer claims exclusive decisionmaking authority, premised on the
belief that lay clients cannot make sound legal decisions because law is
technical, complex, and esoteric. A paternalist lawyer is morally isolated
from the client, acting in ways that she thinks will benefit the client
without discourse about what the client wants or needs.
Maute, Allocation of DecisionmakingAuthority Under the Model Rules of ProfessionalConduct,
17 U.C. DAVIS L. REV. 1049, 1058 (1984) (citations omitted).
Maute compares the paternalists, who make moral decisions without regard for
the clients' wishes or views, with the instrumentalists, who give their clients primary
decisionmaking authority and abdicate moral responsibility for their own actions,
urging that they are hired guns. See id. at 1059. These two types of lawyers differ in
their attitude toward client decisionmaking, but are similar in their moral isolation
from their clients. See id.
39 See, e.g., id. at 1052, 1080-1105 (advocating a joint venture model in which the
client and attorney share authority); Redmount, Client Counselingand the Regulation of
Professional Conduct, 26 ST. Louis U.L.J. 829, 848 (1982) (proposing that client
counseling should stress the undesirability of client overdependence and excessive
attorney control); Strauss, Toward a Revised Model of Attorney-Client Relationship: The
Argument for Autonomy, 65 N.C.L. REV. 315, 336-49 (1987) (advocating a theory of
informed consent to promote client autonomy and reallocate decisionmaking
authority); Wasserstrom, Lawyers as Professionals: Some MoralIssues, 5 HUMAN RIGHTS 1,
 670 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

The revisionists suggest that lawyers should give clients a larger

voice in decisions that may affect the outcome of representation.4 °
They call for lawyers to contract more explicitly about the terms of
their employment by clients and to disclose more information to
their clients. Some scholars call for an informed consent doctrine in
legal malpractice, such as has become a standard in medical
malpractice. 4 '
The revisionist literature revolves around the principle of client
autonomy-the client's right to make choices 4 2-and the lawyer's
interference with that right. It focuses on the extent to which lawyers
allow clients to make the significant decisions in their own legal mat-
ters. To this end, clinically-oriented legal educators have developed
techniques to sensitize lawyers to the ways that they influence client
choices 43 and to encourage lawyers to conduct their practice in a

15-24 (1975). Wasserstrom states that the lawyer "typically, and perhaps inevitably,
treats the client in both an impersonal and a paternalistic fashion." Id. at 1.
40 Douglas Rosenthal conducted an empirical study that demonstrated that for
the most part, clients who were actively involved in litigation and who made demands
for information from their lawyers got better case recoveries than did passive clients.
See D. ROSENTHAL, supra note 22, at 56-58.
41 See, e.g., Andersen, Informed Decisionmaking in an Office Practice, 28 B.C.L. REV.
225, 225 (1987) (arguing that clients make intelligent decisions when fully informed
of choices); Martyn, Informed Consent in the Practiceof Law, 48 GEO. WASH. L. REV. 307,
307 (1980) (arguing that informed consent protects client autonomy and benefits the
attorney-client relationship); Spiegel, Lawyering and Client Decisionmaking: Informed
Consent and the Legal Profession, 128 U. PA. L. REV. 41, 41 (1979) (advocating
development of the informed consent doctrine to promote the interests of the client,
the lawyer, and the public). The informed consent doctrine, already an established
part of legal malpractice law, imposes on lawyers some duties of disclosure. Lawyers
must disclose conflicts of interest and information material to client decisions. See
Martyn, supra, at 330. Spiegel urges that lawyers should have to disclose "the
alternative courses of action . .. [and] to evaluate the likely consequences of each
alternative, disclosing as clearly as possible the certainty or uncertainty of his
judgments." Spiegel, supra, at 134. The informed consent doctrine and the literature
discussing it encourage a higher degree of lawyer candor about the substance of legal
representation.
The lawyers I interviewed reported more deception about the process of practice,
about the lawyer's work habits and billing habits than about substantive decisions.
Of course, these issues are inextricably intertwined with issues of substance because,
for example, if the lawyer is disorganized or has too many other obligations, the
client may be poorly represented and lose the case.
The issue of lawyer deception of clients cannot be addressed within the context
of the existing legal doctrine of informed consent because the doctrine focuses on
the disclosure of information relating to the subject matter and not the process of the
representation.
42 See Ellman, Lawyers and Clients, 34 UCLA L. REV. 717, 720 (1987).
43 See G. BELLOW & B. MOULTON, THE LAWYERING PROCESS: MATERIALS FOR
CLINICAL INSTRUCTION IN ADVOCACY 1040-42 (1978) (discussing counseling
techniques that can improve lawyer communication with the client).
 1990) LYING TO CLIENTS

"client-centered" fashion.4 4 Even these self-conscious efforts to turn

some of the lawyer's power over to the client may result in the
manipulation of clients.4 5
This Article focuses on the extent of a lawyer's moral or legal
duty to be truthful with a client about all matters pertaining to the
client's representation, including, but not limited to, decisions about
the case. 46 This Article examines, for example, how lawyers abuse
their power by preventing their clients from finding out too much
about their fees, expertise, and mistakes, and the lawyer's other obli-
gations that interfere with her performance.4 7
What traditionalists overlook and revisionists confront is that a
fundamental and pervasive conflict of interest exists between lawyer
and client-the lawyer's profit motivation.48 Many lawyers in private

44 See generally D. BINDER & S. PRICE, LEGAL INTERVIEWING AND COUNSELING: A

CLIENT-CENTERED APPROACH (1977) (discussing how lawyers can effectively interact
with and counsel clients).
45 See Ellmann, supra note 42, at 720-2 1.
46 One of Steve Ellmann's examples of client manipulation provides a good
illustration of this difference in focus. In discussing coercion of client choice, he
argues that "the lawyer who announces her intention of withdrawing, in a successful
effort to change her client's behavior by making clear that his failure to change will
have undesirable consequences, is engaging in coercion if her announcement
constitutes a threat." Id. at 724 (emphasis in original). Ellmann's concern is that
lawyers can interfere with the clients' rights "to choose for themselves within the
limits of the law and their circumstances." Id. at 725 (footnote omitted).
Suppose the lawyer has a good reason for threatening to withdraw, and discloses
this to the client? Suppose the client has asked the lawyer to do something illegal?
My concern is with manipulation by deception. If a lawyer is candid about her
purpose, why is it wrong for her to try to influence her client's choices?
47 The abundance of literature on client decisionmaking, and relative lack of
writing about other aspects of the lawyer-client relationship, may reflect writers'
efforts to fit their thinking into existing categories of legal doctrine. Focusing on
informed consent, for example, narrows the writers' scope of inquiry to decisions
about action on a client's behalf. Similarly, Maute's "joint venture" model of lawyer-
client interaction uses existing legal doctrine as a template for her recommendations.
Consequently, she focuses on features of the lawyer-client relationship that
correspond to the legal definition of a joint venture. See Maute, supra note 38, at
1066-67.
48 See Burt, Conflict and Trust Between Attorney and Client, 69 GEO. LJ. 1015, 1021
(1981) (stating that an attorney's fees often do not depend on winning the client's
case, and that long, drawn-out litigation benefits the attorney but does not guarantee
financial reward to the client); Kritzer, The Dimensions of Lawyer-Cli-nt Relations: Notes
Towarda Theory andA FieldStudy, 1984 AM. B. FOUND. RES.J. 409, 410 (reiterating the
conclusion of many recent studies that "what is in the lawyer's economic interest may
not be in the client's interest"); see also Morgan, The Evolving Concept of Professional
Responsibility, 90 HARV. L. REV. 702, 706 (1977) (arguing that the Code of
Professional Responsibility gives priority to lawyers' interests over the interests of
.clients and the public); cf Anderson, Conflicts of Interest: Efficiency, Fairnessand Corporate
Structure, 25 UCLA L. REV. 738 739-40 (1978) (explaining, in the context of market
672 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

practice are primarily motivated by the desire to earn money. Most

lawyers also wish to serve the public, to improve the profession, to
develop and maintain good professioval reputations (which bring
income, fame, status, and admiration), and to train young lawyers.
Nevertheless, the engine that drives the machine is profit
49
motivation.
The traditional model of lawyer-client relations might be viewed

transactions, the need for regulation of the exercise of self-interest by those who
deliver specialized services because of the "opportunities to cheat without detection"
and the serious consequences of such cheating).
In discussing the economic aspect of the lawyer-client conflict of interest, Burt
notes that this conflict is less acute if the lawyer is getting a contingent fee and
greater if the lawyer is being paid by the hour, especially because the number of
hours may be greater in cases in which the outcome is more uncertain.
This conflict of interest may be primarily economic, but it is not exclusively so.
Issues of workload and time management are often present. If the lawyer wants to
leave work to go to the movies, this interest competes with the client's interest and
the firm's economic interest. Cf Spiegel, supra note 41, at 88-89 (noting that a
lawyer's and client's interest can diverge on such non-economic issues as choice of
forum or choice of legal argument).
49 Frederick Rosenberg writes:
The past decade has seen legal costs at large firms skyrocket at nearly
three times the rate of inflation .... At the core of this development is a
profession concentrating itself into massive business organizations
focused primarily on profits, personal gain and power.
Rosenberg, So You Want to Work for a Big Firm, GEO. L. WEEKLY 2 (August 28, 1989)
(adapted from the Washington Post).
Lawyers' desire to earn money does not distinguish them from anyone else in
business. The law business is like any other business, except that lawyers are exempt
from many of the legal safeguards that are imposed on merchants to deter them from
taking advantage of their customers. Consumers are particularly vulnerable when
contracting for services or buying products whose reliability they cannot assess.
Consequently, the law provides extra legal protection to consumers when dealing
with home improvement contractors, used car dealers, door-to-door salespersons,
and other business people who might exploit them. See generallyJ. SHELDON, UNFAIR
AND DECEPTIVE ACTS AND PRACTICES (1988). When hiring lawyers, clients are
purchasing a service whose reliability they usually are not in a position to assess.
Although lawyers must observe some restrictions on advertising and solicitation,
consumers of legal services do not benefit from many common consumer protec-
tions. For example, clients are not entitled to a written estimate or an itemized bill.
In fact, most states do not even require that the contract for legal services be in
writing; lawyers need only make some disclosures near the beginning of the lawyer-
client relationship about the method by which they will determine fees. See MODEL
RULE 1.5(b) ("When the lawyer has not regularly represented the client, the basis or
rate of the fee shall be communicated to the client, preferably in writing, before or
within a reasonable time after commencing the representation."); MODEL CODE EC 2-
19 ("As soon as feasible after a lawyer has been employed, it is desirable that he
reach a clear agreement with his client as to the basis of the fee charge); cf.G. HAZ-
ARD, ETHICS IN THE PRACTICE OF LAw 153 (1978) (noting the financial motivation of
lawyers who pursue careers representing large corporations).
1990] LYING TO CLIENTS

as a smokescreen that obscures the pecuniary interests of lawyers.

The model of lawyer solely devoted to client interests reassures cli-
ents that their lawyers are not exploiting them.5 ° The smokescreen
may be somewhat effective, but a large percentage of clients harbor
unspoken mistrust for their lawyers. 5 '
The legal profession has changed enormously in the last twenty
years. The number of lawyers doubled between the early 1960s and
1980,52 firm size has drastically increased,5 3 and fees have escalated
exponentially.5 4 The Supreme Court has scaled back restrictions on
advertising and solicitation.5 5 Lawyers perform an increasingly wide
range of functions for corporate clients; the business of law has
diversified. Only a fraction of legal services relates to litigation. All
these changes in the legal profession have resulted in dramatic
increases in the pressure and competitiveness associated with the
practice of law. 5"

50 Douglas Rosenthal comments that "[t]he inexorability of the economic

conflict of interest between lawyer and client in so many cases, raises a serious
question about the appropriateness of the traditional ideal that an ethical and
competent lawyer can and will make the client's interest his own." D. ROSENTHAL,
supra note 22, at 111-12.
51 See Burt, supra note 48, at 1019-22. Burt discusses attorney-client mistrust as
a mutual phenomenon, but focuses on the client's reasons for mistrusting the lawyer.
Some lawyers mistrust their clients because they think the clients are lying to them or
they worry that the clients will not pay their bills. Clients' mistrust, on the other
hand, is probably more chronic and more serious because lawyers are so often the
dominant parties in the lawyer-client relationships and because clients are dependent
on their lawyers for services. Burt argues that the legal profession collectively denies
the existence of this mistrust, and that this denial harms the ability of lawyers and
clients to work together effectively.
52 See B. CURRAN, THE LAWYER STATISTICAL REPORT: A STATISTICAL PROFILE OF
THE U.S. LEGAL PROFESSION IN THE 1980's, at 4 (1985), cited in Rhode, The Rhetoric of
Professional Reform, 45 MD. L. REV. 274, 280 (1986).
53 See Velvel, Was Rehnquist Right-Fora Change?, NAT'L L.J., March 30, 1987, at
13, 13 (summarizing a speech given by ChiefJustice Rehnquist regarding the growth
of law firms and concomitant stress on profit maximization in many firms). Several
law firms have over one thousand attorneys and annual gross revenues of over $250
million. See Lehman, An End to Collegiality: When Law Becomes Big Business, N.Y. Times,
Feb. 5, 1989, § 3, at 3, col. 1.
54 Leon Mitchell, one of the lawyers interviewed for this Article, reported that in
the 1940s, when he first graduated from law school, the standard fee for a court
appearance was $25. If the client showed up at court without the money, the lawyer
would request a continuance from the judge and explain that a necessary witness
named "Mr. Green" was unavailable. The judge, understanding the code and
sympathetic to the lawyer's need to earn a living, would postpone the case.
55 See Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988); Zauderer v. Office of
Disciplinary Counsel, 471 U.S. 626 (1985); Bates v. State Bar of Ariz., 433 U.S. 350
(1977).
56 See Rhode, supra note 52, at 294 ("Attorneys are experiencing heightened
674 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

The internal economic arrangements of law firms have changed

as well. A much smaller percentage of associates become partners
than in the past. Many firms have added tiers of senior associates
and junior partners, with control of and profits from the partnership
concentrated at the top.5 7 Steve Brill, editor of The American Lawyer,
reports that law firms hire associates and set billing rates not based
on the amount of work available, but based on what profit level is
sought by the partners."8 When the firms reach the maximum hourly
rates at which clients will pay for associates, they generate dollars by
increasing the ratio of partners to associates and/or by increasing
the number of hours that each associate must bill annually.5 9 If
there is not enough work available for an associate to bill legitimately
the required number of hours, the associate must choose: (1) to do
unnecessary work; (2) to lie about the number of hours worked; or
(3) to fail to meet the firm minimum and reduce her chances of
60
becoming a partner.
Lawyers compete for business and recognition with other firms
and with the lawyers in their own firms. Medium-sized firms are dis-
solving and merging into larger firms because of the competitive
pressures of law practice. 6 ' Firms force less productive lawyers to
62
retire early.
These changes in the legal profession have reverberated
through the law schools. Law students, burdened by high tuition

pressures to expand the market for individual legal services... as well as to compete
more effectively for corporate business.").
57 See Brill, The End of Up-Or-Out, AM. LAW., Dec. 1988, at 3, 3, 28, 30; Is the
Process Fair?, NAT'L LJ., Dec. 5, 1988, at S-8, col. 3 (reporting on a survey in which
82% of managing partners polled indicated that fewer than half of new associates will
eventually make partner; that 36% of firms had both equity and nonequity partners;
and that over one-third of firms reported having tiered partnerships).
58 See Brill, The Law Business in the Year 2000, AM. LAw. (supplement), June 1989,
at 5, 6-7. In the Soviet Union, where private law practice is in its infancy, profit
motivation is evident. In Liningrad, three lawyers left the prosecutor's office to set
up a private law firm. One of them, Alexei Sokolov, explained, "We wanted to work
less and make more." Their earnings are now twice or three times their government
salaries. Yevgeny Nikolski, one of Sokolov's partners, noted another pleasure of
private practice. "And now we can just walk out of the office and buy a bottle in the
middle of the day if we feel like it." Remnick, White Nights in a Gray Land, Wash. Post,
July 3, 1989 at A22, col. 1.
59 See Brill, supra note 57, at 7.
60 See id.
61 See Dockser, Midsize Law Firms Struggle to Survive, Wall St.J., Oct. 19, 1988, at
B 1, col. I (discussing various reasons for the decline of midsize firms, such as rising
costs and increasing demands from large corporate clients).
62 See Lehman, supra note 53, at 3, col. 1.
1990] LYING TO CLIENTS

and massive loans," are increasingly concerned with credentials-

making good grades, joining journal staffs, getting prestigious part-
time positions during law school-that will make them desirable in
the professional marketplace. Many legal educators feel that this
preoccupation with personal financial security has caused a decline
in intellectual curiosity.
In light of these developments in the profession. it is not sur-
prising that the lawyers I interviewed described many instances of
self-interested deception.6 4 The lawyers most frequently deceived
clients in an attempt to increase earnings, expand business, or cover
up error or neglect-in short, to protect profits and professional rep-
utation. Some of the deception that results from this conflict of
interests causes serious harm to clients, some does not. Lawyers
appear to vary in how much they allow themselves to pursue self-
interest at their clients' expense. At present, this area largely is
unregulated because the traditional model of lawyer-client relation-
ships, upon which the regulatory codes are based,6 5 fails to acknowl-
edge anything but a unity of interest between lawyer and client.

II. SHOULD WE PERMIT LAWYERS TO DECEIVE THEIR CLIENTS?

The lawyer interviews are part of an initial effort to understand

some of the types of deception that normally occur in law practice.
The stories provide a basis for some reflection on what types of
deception the states should permit members of the bar to employ
when dealing with their clients, and what types of deception they

63 See Marcus, Gloom at the Top: Why Young Lawyers Bail Out, Wash. Post, May 31,
1987, at Cl, col. 2 (reporting that members of Harvard Law School's 1987
graduating class had average student loans of over $30,000).
64 Although some lawyers lied to, or concealed information from, their clients
for the clients' benefit, see, e.g., infra note 314 and accompanying text, most examples
of deception involved a conflict between the interests of the lawyer and the client, in
which the lawyer acted selfishly.
Frederick Rosenberg notes that the desire for profits leads to deception of
clients. For example: "[a] typical retainer agreement. . . is intentionally vague,
assures no results, estimates no expenses and promises only to bill the client at a
specific rate for however many hours are necessary to get the job done." Rosenberg,
supra note 49, at 2.
Also, he states that firms tell their clients that using associates will save money
when "the truth is that firms use associates because it is more profitable than having a
partner do the work." Id. at 5.
65 See Patterson, supra note 21, at 47-48 (characterizing the Model Code as a
"loyalty code" because its governing principle is loyalty to the client, to which it
subordinates other duties; and distinguishing a "loyalty code" from an "integrity
code" which treats respect for a tribunal and fairness to third parties as seriously as
the lawyer's duty to the client).
676 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

should prohibit. In examining these stories, I will answer three kinds

of questions. First, does deception offend some fundamental moral
principle? Is it always wrong to deceive, regardless of the circum-
stances?6 6 Second, what are the consequences of a particular decep-
tion or type of deception? What types of deception are harmful or
beneficial?6 7 The first mode of analysis evaluates the deceptive con-
duct apart from its results, while the second judges the conduct by its
effects. 6 8 Both aim to discover whether an act, or category of acts, is
morally wrong. Third, what role, if any, should the state assume in
attempting to stop lawyers from using deception? What types of
deception are impossible or too costly to regulate, or are inevitable?

A. Is It Wrong to Deceive?

St. Augustine and Immanuel Kant take the position that people
have a duty always to be truthful; all lying is wrong regardless of
whether a particular lie causes any harm.69 This position is difficult
to defend because it requires that one defend honesty over all other
70
values, even when a truthful statement will cause serious harm.

66 This type of analysis is deontological and flows from the ideas of Immanuel
Kant. See C. WOLFRAM, MODERN LEGAL ETHICS 72, 74-75 (1986) (stating that in a
deontological theory of moral philosophy, "judges behave by preexisting principles of
right and wrong").
67 This type of analysis is teleological,or consequentialist reasoning. See id. at 72-74
(a teleological theory of moral philosophy "regards the outcomes of conduct as
pivotal"). The best known teleological theory is utilitarianism,which "judge[s] right
and wrong by the impact of conduct upon the pleasure, happiness, or welfare of the
actor and others." Id.
68 A utilitarian analysis examines the effects of a particular deceptive act of a
particular person, or the combined or ordinary consequences of a category of acts,
upon the actor and upon all other parties. Acts are moral if they produce the greatest
level of intrinsic good. See id. at 73.
69 St. Augustine set up a hierarchy of lies, from the least pardonable (those
uttered in the teaching of religion) to the most pardonable (those that harmed no
one and helped someone), and urged that while all were wrong, the degree of wrong
differed. See S. BOK, supra note 6, at 35-36.
According to Kant:
[t]ruthfulness in statements which cannot be avoided is the formal
duty of an individual to everyone, however great may be the disadvantage
accruing to himself or to another.
Thus the definition of a lie as merely an intentional untruthful
declaration to another person does not require the additional condition
that it must harm another ...For a lie always harms another; if not some
other particular man, still it harms mankind generally, for it vitiates the
source of law itself.
I. KANT,CRITIQUE OF PRACTICAL REASON AND OTHER WRITINGS IN Mc RAL PHILOSOPHY
346-50 (L.W. Beck trans. & ed. 1949), quoted in S. BOK, supra note 6, at 286.
70 See C. WOLFRAM, supra note 66, at 74.
1990] LYING TO CLIENTS

For example, should one tell a battering husband with a gun where
one's client, his wife, is hiding? Of course not. Suppose he insists
that you tell him whether you know where she is. If you lie and say
you know nothing, you protect her, yourself, and the interests of
society. If you are honest and say you know where she is but you
won't tell him, you invite coercion. Absolutism is not useful in devel-
oping standards of conduct for lawyers because there are some situa-
tions, such as in negotiations and divorce cases, in which may lawyers
need to withhold information to protect their clients' interests. 71
To answer the question in a fashion that might be useful to law-
yers and to their clients, one must balance truthfulness against other
values, while still focusing on the deceiver's motives. If the purpose
of the deception is to protect someone or to help someone else, then
it is more justified than if its purpose is to benefit the deceiver at the
expense of another. Although the deceiver could be mistaken about
whether or not the deception actually protects or benefits another,
altruism, like truthfulness, is a positive value which often has positive
results. In other words there probably is some correlation between
good intentions and good results.7 2
Does the possibility of error in judgment make altruistic decep-
tion unacceptable? Many lawyers are quick to conclude that they
know better than their clients what is in the clients' best interests.73
If deception intended to benefit a client is permitted, lawyers may
deceive clients as long -as they can find an altruistic excuse to justify
their primarily selfish deception. Some of the lawyers I interviewed
said that their clients did not really understand law practice and
would worry too much if they knew the lawyers had made correctable
errors.7 4 The lawyers seemed unaware that their clients might want

71 Sissela Bok argues that although lying is almost never justifiable, that
sometimes deception may be appropriate. See S. BOK, supra note 6, at 48.
72 Under this analysis, one might be minimally concerned about domestic-
relations lawyers who deceive their clients by withholding information concerning
nasty remarks made about the clients by their spouses. Also, this analysis arguably
justifies the withholding of a strategy decision not to rehearse a client's testimony so
that she would become visibly distressed in front of the jury. Finally, it explains why
one might find self-interested deception (such as padding bills, exaggerating
expertise, and covering up errors) unacceptable.
73 See, e.g., McKinnon v. Tibbetts, 440 A.2d 1028, 1029 (Me. 1982) (discussing a
lawyer who ceased taking action on a claim he believed to be worthless, but
represented to the client that he was pursuing the claim in order to protect the
client's feelings because he believed the client enjoyed talking with and visiting him).
74 See Morgan Interview, infra text accompanying note 275 ("Very few clients
really understand law practice."); id. at note 281 ("If I told the client, the client would
get hysterical. I am reasonably confident that I will get it straightened out.");
678 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

to know about errors as a means of evaluating the lawyer's

competence.
Even if a lawyer deceives a client for reasons that are purely
altruistic and not mixed with self-interest, one might still condemn
the deception for one of two reasons. First, one might believe, as
Kant did, that the lawyer has a duty to tell the truth to everyone, or
that everyone has a right not to be deceived. Second, if one believes
that altruism is a virtue that competes with truthfulness, one might
condemn altruistic deception because of the possibility of unin-
75
tended harm.
This discussion suggests the following analysis in evaluating
lawyer deception of clients.7 6 First, will the deception benefit the
lawyer, the client, a third party, or some combination of people? If
persons other than the client will benefit, the lawyer should carefully
scrutinize the deception, and avoid it. If the deception will benefit
only the client, the lawyer must ask what harm might occuras a result
of the deception. What assumptions are implicit in the proposed
deception regarding what the client wants? What is the basis of
those assumptions? If the withholding of information will benefit the
client only, and the benefit is one the lawyer knows the client wants,
77
then it ceases to be deceptive.
If a deceptive statement is necessary to accomplish some legiti-
mate purpose, such as protecting someone from needless harm, one
might consider the deception justifiable unless the speaker could have
accomplished the same purpose without deception. For example, if
a lawyer does not have time to speak with a client, she does not need
to have the secretary lie to the client. Instead, she could simply ask

Copeland Interview, infra text accompanying note 280 (stating that non-lawyers tend
not to understand that judges rarely throw cases out on technicalities).
75 For example, if the client who was supposed to break down on the witness
stand were unusually sensitive, shy, or private, she might prefer a lower damage
amount to the humiliation of public emotionalism. The lawyer could not consult her
about this without disclosing the strategy.
76 This analysis could be used prospectively by a lawyer considering the use of
deception or retrospectively to evaluate a deceptive statement. Or it could be used to
determine what, if any, deception should be permitted. The rules on deception
should be the product of moral scrutiny of the acts in question. But the rules will be
ineffectual unless lawyers undertake moral scrutiny of their own behavior.
77 The domestic relations example is useful here. If the client, in hiring the
lawyer, said "My husband is really angry and will say lots of insulting things about
me. I don't want to know any of them." An agreement to withhold information
makes deception unnecessary. Cf Morgan Interview, infra text accompanying note
275.
1990] LYING TO CLIENTS

the secretary to tell the client the truth, 78that the lawyer is busy on
another matter that has a short deadline.
One might ask whether a deception, if exposed to public view,
would be considered justifiable, or whether the deception can be
rationalized only by the deceiver, who may be considering only his
79
own interests.

B. Harms Caused by Deception

Other than motivation, the central question in analyzing the

morality of a deception is to examine its consequences. Conduct is
perceived as wrong in some situations because of improper motives,
while in other cases, the conduct is wrong because of harmful conse-
quences. This cost/benefit analysis required to elevate possible or
actual consequences of a deception is fraught with difficulties
because of the indeterminacy of events and the subjectivity of
attempting to predict consequences. Even so, it offers useful
insights.
Self-interested lawyer deception of clients causes several types
of harm. First, the professional reputation of individual lawyers and
of the bar as a whole is damaged by the widespread use of small
deceptions. It is widely recognized that people do not trust lawyers.
Usually when lawyers lie to their clients, they are not confronted.
The client may be entirely unaware of the deception, or may sense
that something is amiss but not know exactly what.8 ° If large num-
bers of clients feel that their lawyers do not keep them adequately
informed, that they charge too much for their services, and that they
do not explain the basis for the amounts charged, the overall effect is
a feeling that the lawyers are trying to slip by with the least possible
amount of explanation. From this perspective, client mistrust of law-
yers is appropriate.
If more lawyers were committed to communicating candidly
with their clients, even about issues that might not serve the lawyer's
interest, such as errors made or delays encountered, the results
might include greater client trust of lawyer honesty, demystification
of the practice of law, and reduced abuse of power by lawyers in rela-

78 Sissela Bok discusses the issue of truthful alternatives. See S. BOK, supra note
6, at 75-76.
79 See id. at 95-108.
80 See Steele & Nimmer, Lawyers, Clients, and Professional Regulation, 1976 AM. B.
FOUND. RES. J. 917, 951, 957 (noting that the clients interviewed reported general
unease with their lawyers' attitudes toward them).
680 UNIVERSITY OF PENNSYLVANIA LA W REVIEW [Vol. 138:659

tion to their clients. Perhaps more clients would fire their lawyers or
would insist that their bills be reduced, but the level of suppressed
client dissatisfaction would drop.
A second type of harm that results from lawyer deception of cli-
ents is damage to lawyers' internal standards of integrity. If one
accepts the use of small deceptions in one setting, it becomes easier
to use deception to solve problems in other settings. The mainte-
nance of high standards of personal integrity in the context of some-
times intense business pressure requires clear individual and
institutional values and constant vigilance, because so many
problems and complaints could be avoided through the use of
deception. Deception allows greater control of the use of time, and
sometimes major savings in time. Sissela Bok characterizes this
problem as a slippery slope: "[a]fter the first lies, . . .others can
come more easily. Psychological barriers wear down; lies seem more
necessary, less reprehensible; the ability to make moral distinctions
can coarsen; the liar's perception of his chances of being caught may
8 1
warp."-
If, for example, a lawyer asks a secretary to tell a client that the
lawyer is out so that the lawyer does not have to explain why the
complaint has not yet been drafted, might that lawyer not take the
next step and tell the client the complaint was finished when it was
not? Once the lawyer has lied to the client about whether the work
has been done, what is to prevent the lawyer from rounding up the
hours recorded for the piece of work when it finally does get done?
If one begins padding hours, then why not occasionally charge two
clients for one hour spent on work beneficial to 8both?
2
(Not splitting
the hour, but billing for two hours.) And so on.

81 S. BOK, supra note 6, at 27. Bok points out that "[iln the care of the sick and
the dying, in courtroom practice, in every kind of selling and advocacy-wherever the
opportunities for deception abound, rewards are high, and time for considering
alternatives often short-the danger of the formation of deceptive habits is much
greater than in other lines of work." Id. at 128-29.
82 A good example of a situation in which one lie leads to another is In re
Mendell, 693 S.W.2d 76 (Mo. 1985) (en banc). The respondent attorney in this
disciplinary proceeding told his client that her case had been settled for $7500, when
in fact the settlement was for $8000. This deception allowed him to collect $336
more than if he revealed the extra $500 recovery and collected his one-third fee. To
effectuate this deception, he forged her signature on the release and the draft. When
she requested a copy of the settlement documents, he forged false documents. When
she requested a copy of her file, he removed all documents making reference to the
$8000 total. Then he told a series of lies to the Bar Committee in an effort to explain
his previous conduct. What began as the theft of a trivial amount of money ended
with the lawyer being disbarred. See id. at 76-78.
1990] LYING TO CLIENTS

In the area of billing, the firms represented by the lawyers inter-

viewed appear to have slipped down the slope. Though the lawyers
usually tell their clients that they will be billed by the hour, the inter-
views suggest that, to an alarming extent, the amount that lawyers
bill their clients is based on a combination of factors, including the
number of hours needed to satisfy firm requirements, the amount
the lawyer thinks the client can afford to pay, and the amount- the
lawyer thinks can be justified for the work in question.
The slippery slope problem is as much an institutional as an
individual problem. Most new lawyers realize that there is a wide
gulf between what they learn in their ethics classes and what happens
in the world of practice. When they begin work at law firms, they
watch the more experienced lawyers to see what the real standards of
conduct are. Each firm quickly communicates its institutional norms
to new associates; many associates are anxious to assimilate them-
selves into an institution and to be successful within it. Therefore,
they are not critical of the norms they are asked to adopt. They
redraw their lines to fit into the value systems of their firms. If the
senior lawyers are not precise in their billing practices, the junior
lawyers will not be. If the senior lawyers exaggerate their credentials
or expertise when talking with new clients, the junior lawyers will do
the same. Within a law firm, standards of ethical conduct can be
raised successfully only by the leadership of the firm because higher
ethical standards may reduce profits, and junior lawyers are under
83
intense pressure to contribute to the firm's profit margin.
Another aspect of the slippery slope is that lawyers who deceive
their clients may grow increasingly comfortable in using deception to
solve problems in other relationships, with colleagues, courts, family
members, and even the Internal Revenue Service. 8 4 It is not that

83 See infra text accompanying notes 212-14. Sissela Bok notes that "[t]he very
stress on individualism, on competition, on achieving material success which so
marks our society also generates intense pressures to cut corners." S. Box, supra
note 6, at 258.
84 A shocking indication that lawyers are less honest and law-abiding than one
might expect was a New York State tax audit that found that almost ten percent of
partners in law firms surveyed had not filed state income tax returns during at least
one of three years studied. Almost 4000 law firms were surveyed. Out of 15,745
partners, 1,512 had not filed required state income tax returns. See Kolbert, Nearly
]Oro of Law PartnersFailto File New York Taxes, N.Y. Times, Mar. 23, 1989, at Al, col.
4.
The tax commissioner suggested this problem was caused by the fact that
members of partnerships are not required to pay withholding taxes. About a third of
the offending partners live outside of New York State but are obligated to file state
tax returns because they work in the state. See id. One may question how many of
682 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

deception of one person causes deception of another, but that a per-

missive attitude toward the use of deception in one arena may carry
over into another.8 5
A third type of damage that results from the use of deception by
lawyers is the neglect, error, poor organization, and lack of expertise
86
that may be perpetuated and not corrected because it is hidden.
The acceptance of what is perceived as trivial deception of clients
allows lawyers to conceal substandard performance. If lawyers know
that they can conceal from their clients whether work was done on
time or whether they were fully prepared, the lawyers are not
accountable for their actual performance, but only for the images
that they create. The use of deception becomes a crutch, and the
lawyers may then forget to ask themselves whether there exist truth-
ful approaches which would accomplish their purposes.
Clients who do not have accurate information about their law-
yers' qualifications or about what the lawyers have or have not done
on their behalf are in a poor position to evaluate the services that
they are getting or to get better services if their lawyers are incompe-
tent or irresponsible.8 7 This lack of information is one reason why

these partners were aware of the legal requirement but did not file returns because
they did not think they would be caught. Then question how many had performed
similar calculations on behalf of clients seeking to evade the law. A final question is
how many lawyers had changed the numbers on a client's bill for similar reasons.
85 A good example of this is a lawyer interviewee's description of the
disrespectful attitude of partners toward associates in her law firm, and of the
connection between the exploitation of associates and the deception of clients. Both
types of behavior are common among lawyers who think that they are more powerful
or more important than others. See Greenberg Interview, infra text accompanying
notes 293-94.
86 An extreme example of the harm that might result from nondisclosure is
offered by a recent medical malpractice case in Japan. A doctor decided not to tell a
patient about her cancer of the gall bladder, and instead recommended surgery for
gallstones. The patient decided against surgery, and by the time she learned of her
true condition, the cancer had become terminal. The Japanese court found the
doctor not liable because he had followed a Japanese tradition of not informing the
patient of a terminal illness. The court indicated that the patient was responsible for
her own death because she did not follow the doctor's advice. See Hiatt,JapanCourt
Ruling Backs Doctors, Wash. Post, May 30, 1989, at A9, col. 4.
87 The neglect cases are filled with stories about lawyers who failed to return
clients' phone calls in order to conceal that they were not doing the work that they
had been hired to do. If the clients had more information earlier, many of these
lawyers might have been fired and the clients less harmed by the lawyers' misconduct.
See, e.g., Florida Bar v. Peterman, 306 So. 2d 484, 484 (Fla. 1975) (suspending from
practice an attorney who refused to keep clients informed as to the progress of their
cases, and engaged in other misleading actions that damaged the clients).
1990] LYING TO CLIENTS

market forces are so ineffective in helping to maintain high standards

in law practice.88
A fourth type of damage that results from the deception of cli-
ents is to the lawyer's relationship with the client. If a lawyer is hav-
ing coffee with a co-worker, and tells the secretary to tell a client who
calls that the lawyer is in court, this deception is a distancing state-
ment, a way of asserting superiority in the relationship with the cli-
ent. By deceiving a client, a lawyer can dehumanize him or her,
treating the client as an annoyance. The attitude that may develop as
a result of keeping clients at this distance could result in the lawyer
according the client's needs and judgment less than adequate
respect.
A fifth and related type of harm caused by deception of clients is
to the deceptive lawyer's relationship with other lawyers. Some
deceptions which may not harm the client at all may be injurious to
other lawyers. The lawyers who send out work prepared by junior
lawyers under their own names deprive the younger lawyers of the
satisfaction and respect of clients that they might derive from being
credited with their own work. 9 The lawyer who tells a client that
something can easily be done by the next morning and conceals from
the client that an associate will stay up all flight to do it treats the
associate as nonexistent. Question whether the partner, having
defined the task as "no problem" will be unappreciative of the sacri-
fices required to get the work done.90 In some cases, the cost of
deceiving one person is the exploitation of another.
What would be the effects of greater candor? If, for example,
lawyers did not exaggerate their expertise, they would have
increased difficulty expanding their practices into new fields. Pre-
sumably some clients, if informed of a lawyer's actual relative igno-
rance in a field, would take their business to real experts. Lawyering
might, become more specialized, but clients would be better able to
trust their lawyers and would get better service.
Alternatively, if lawyers were more candid about the extent of
their experience and about their own judgment that they could han-
dle work in a new area, the flow of business into the law firms might
largely be unaffected. The lawyers might communicate confidence
in their own abilities without lying about their expertise. As a result,

88 Mark Spiegel discusses the relative ineffectiveness of market forces in

producing high-quality legal services, in part because of clients' lack of information
about those services. See Spiegel, supra note 41, at 79-81.
89 See infra text accompanying notes 288-96.
90 See infra text accompanying note 297.
684 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

clients might not decline to hire lawyers based on a lack of specific

expertise. A lawyer cannot know in advance how a prospective client
will react if the lawyer states she has not done a particular type of
work before. Most lawyers therefore would not risk being candid
unless they were required to do so.

C. Where to Draw the Line

Some forms of deception are beneficial to lawyers and harmful

to others. Other types of deception appear to be intended primarily
for the client's benefit. Many would argue that it is appropriate to
withhold information from'a divorce client about her husband's lat-
est volley of slanderous remarks. The lawyer assumes a somewhat
paternalistic role in protecting his or her client, but the situation may
warrant such protection. Allowing the lawyer to withhold informa-
tion means giving the lawyer the power to decide what is legally rele-
vant and what is trivial. Many people hire lawyers to obtain just this
sort of protection.
The problem of paternalism disappears if the client contracts
with the lawyer to use discretion in deciding what information to dis-
close to the client. If the client requests that9 the1
lawyer withhold
some information, there is no abuse of power.
This same analysis can be applied to other deceptions that are
intended for the client's benefit, such as the litigation strategy exam-
ple in which the lawyer elected not to rehearse the client's testimony
to obtain a greater emotional impact during the trial. The lawyer
might ask permission from the client at the outset of the relationship
to withhold some information about strategy if the lawyer believed
that doing so would benefit the client. If the client has the opportu-
nity to decline to agree to this arrangement, most possible harm is
avoided. If the lawyer makes decisions for the client without the cli-
ent's knowledge, however, the client has no qpportunity to direct the
lawyer's judgment as to what types of information to withhold or dis-
close. The difficulty with contracting to deceive a client for the cli-
ent's benefit is that it may be impossible to anticipate what
information the lawyer might later think is best to withhold.9 2

91 See generally Spiegel, supra note 41, at 84-85 (discussing the desirability of
negotiating over decisionmaking authority early in the lawyer-client relationship, and
making adjustments to coordinate expectations).
92 In a law school clinic in which the author was an instructor, a doctor informed
the law students representing a client in a social security disability case that the client
was suffering from a terminal illness. The doctor felt the client did not need this
information. Neither the students nor their supervisors could have anticipated this
1990) LYING TO CLIENTS

Self-interested deception of clients by lawyers should be prohib-

ited. There is no justification for allowing lawyers to mislead their
clients about their experience or expertise, error or delay in work
done for the clients, why they are unavailable to a particular client at
a particular time, or the method of determining the price of their
work. These types of deception make lawyers appear greedy, imma-
ture, and unable to manage their time or face up to their mistakes.
Disciplinary rules should permit lawyers to contract with clients
to withhold certain types of information. The contract would legiti-
mate the lawyer's screening function, removing it from the realm of
deception. Unless lawyers contract with their clients to withhold cer-
tain information, the disciplinary rules should not permit lawyers to
deceive their clients in the name of helping them. Some lawyers may
employ deception with the intent of helping a client and, inciden-
tally, help themselves. For example, several lawyers claimed that
they did not tell clients about error or delay to protect them from
worrying needlessly. At the same time, the lawyers benefitted from
93
concealing, conduct that could have damaged their reputations.
Some intended or possible benefit to the client should not justify
self-interested deception.
Earlier I defined deception as the intention of the speaker to
mislead, and included intentional misleading by statement or
silence. 4 What if a lawyer does not believe that a client needs a
piece of information? Is withholding that information deceptive? If
a reasonable possibility exists that a client would want to know the
information, then withholding it is deceptive. 5 This question of

situation or made an agreement with the client about whether they should withhold
sensitive information from the client.
93 One lawyer explained that when she told a client that work was nearly
finished even though she had not started it, the client benefitted because the lawyer
then felt obliged to complete the work quickly. See Morgan Interview, infra note 275
and accompanying text. One may question whether the lawyer's motivation was to
spur rapid action or to avoid loss of respect from the client. If the lawyer admitted to
the client that she had not started work that she should have finished, she might feel
even more pressure to complete the work quickly.
94 See supra text accompanying notes 6-7.
95 Spiegel uses the principle of informed consent to define what information a
lawyer should communicate to the client. He suggests that, "the lawyer should have
an obligation to identify for his client the alternative courses of action," and should
"evaluate the likely consequences of each alternative, disclosing as clearly as possible
the certainty or uncertainty of his judgments." Spiegel, supra note 41, at 134. This
standard is inadequate, however, because it addresses only decisions relating to
action in cases. A broader standard based on what the client might reasonably want
to know would encompass information about issues such as expertise, error, and
billing that appear to be common subjects of deception.
686 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

how much a lawyer must disclose has been addressed in malpractice

law. One court held that material facts include those "which, if
known to the client, might well have caused him, acting as a reason-
able man, to alter his proposed course of conduct." 96 This "materi-
ality" standard is satisfactory. 97 The question is whether the
information might cause a reasonable client to alter her conduct.
This "materiality" standard of disclosure appears to require
additional disclosures in most of the categories of deception that the
lawyers I interviewed identified. If a lawyer discloses error, the client
might alter her course of conduct by firing the lawyer or refusing to
pay for time the lawyer spends correcting the error. If a lawyer
reveals that her billing records are not precise, the client might seek
to negotiate about the fee. 98 If the lawyer discloses her lack of expe-
rience in the area of law in which a client needs service, or if the
lawyer discloses the number of other tasks competing for her atten-
tion, the client might choose to retain another lawyer. Alternatively,
the client might elect to employ the lawyer in question but to negoti-
ate about the lawyer's billing rate or about the priority that the law-
yer will assign to the client's work. If the client knows that the lawyer
was always in her office when the client called, but consistently
refused to accept the client's calls, the client might insist on speaking
to the lawyer or might confront the lawyer about her inconsiderate
behavior. All of these deceptions are material.
On the other hand, the materiality test is not overinclusive; it
exempts lawyers from having to disclose a great deal of nonessential
information. For example, if the lawyer experienced a delay in set-
ting up a meeting with another attorney, the test would not require
the lawyer to mention that delay to the client unless the client felt a
particular urgency about the meeting. If a document was acciden-
tally deleted from the computer, the lawyer would not need to tell
the client unless she wished to bill the client for the time she spent
redoing the work (in which case the client might object) or unless the
delay would cause some problem for the client. A lawyer would not
need to consult a client about another attorney's request for a brief

96 Spector v. Mermelstein, 361 F. Supp. 30, 40 (S.D.N.Y. 1972), modified on other

grounds, 485 F. 2d 474 (2d Cir. 1973), quoted in Spiegel, supra note 41, at 68-69.
97 Of course, switching to a reasonable person standard would be an
improvement.
98 Deception about fees is particularly insidious. When a lawyer tells a client
that the fee is based on hours, the lawyer is implying that the fee is objectively
determined and is non-negotiable. If clients know the various factors that determine
the legal fees, they will be in a better position to negotiate.
1990] LYING TO CLIENTS

extension of time unless the lawyer thought that the client reasonably
might want to deny the extension.
Under this standard, what qualifies as deceptive would vary from
one client to another. Lawyers would have an obligation to consider
how much each client would wish to know, and the lawyers would
have to err on the side of disclosure.

III. PERMISSIBLE DECEPTION: THE ARTICULATED IDEOLOGY ON

CANDOR TOWARD CLIENTS

One line of inquiry in this investigation of lawyer deception of

clients is: How honest do we expect lawyers to be? What types of
deception do the disciplinary rules, case law, and other sources of
regulatory authority prohibit or permit? This analysis will provide a
backdrop against which to examine the examples of deceptive con-
duct provided by the lawyers interviewed. It will provide informa-
tion about the articulated values and aspirations of the bar, and will
become the baseline for suggestions about changes in law that would
require lawyers to be more honest with their clients.
The law requiring lawyers to be truthful is growing. Rule 11 of
the Federal Rules of Civil Procedure has greatly increased the
requirements that lawyers be honest in their communications with
tribunals.9 9 The number of malpractice verdicts against lawyers for
dishonesty and other misconduct is increasing rapidly. The ethical
rules governing the profession, however, do not make it clear under
what, if any, circumstances it is permissible for lawyers to deceive
their clients.

A. Disciplinary Rules

Both the Model Code of Professional Responsibility and the

Model Rules of Professional Conduct 0 0 include a general prohibi-

99 See FED. R. Civ. P. 11 (requiring an attorney to sign each document filed in

court, and stating that the signature constitutes the lawyers' certification that
information or requests contained therein are reasonably based on the attorney's
good faith understanding of the law and facts).
100 Both codes were written under the sponsorship of the American Bar
Association and were offered to the states as models. The Model Code was approved
by the ABA in 1970 and was adopted by all but a few states by 1973. The Model
Rules were produced as an alternative to the Model Code, and were approved by the
ABA in 1983. At present the Model Rules have been adopted in some form by
approximately thirty states. Fewer than twenty states still use some form of the
Model Code. See S. GILLERS & R. SIMON, REGULATION OF LAWYERS: STATUTES AND
STANDARDS 201 (1989). This analysis will draw on both codes.
688 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

tion on all deceptive or dishonest behavior, but do not offer specific

guidance on the subject of deception of clients. Model Rule 8.4
states that "[ilt is professional misconduct for a lawyer to: ... engage
in conduct involving dishonesty, fraud, deceit or misrepresenta-
tion ....,01 This language is taken almost verbatim from DR 1-102
of the Model Code of Professional Responsibility.' 2 These provi-
sions give the impression that no deception of any kind is permitted.
More specific provisions of both codes bar deception in certain cir-
cumstances. It is not clear whether deception that is not specifically
prohibited is permitted, or whether the provisions above are
intended to prohibit all types of deception that are not specifically
addressed elsewhere in the codes. The American Bar Association's
annotated edition of the Model Rules notes that most of the cases in
which this provision has been found to be violated also included vio-
lations of other more specific rules,' 0 3 but the author of the annota-
tion takes the position that Rule 8.4 also prohibits deception not
otherwise specifically prohibited.'0 4
The courts vary in how seriously they treat violations of DR 1-

101 MODEL RULE 8.4(c). Interestingly, the original draft of the Model Rules
proposed by the Kutak Commission did not include this language. The Iowa Bar
Association proposed to amend the draft to add the language from DRI-102; the
amendment was adopted without objection. See ABA, THE LEGISLAIVE HISTORY OF
THE MODEL RULES OF PROFESSIONAL CONDUCT: THEIR DEVELOPMENT IN THE ABA
HOUSE OF DELEGATES 198 (1987) [hereinafter LEGISLATIVE HISTORY]. One wonders
whether the original drafters regarded this provision as so unimportant that they
overlooked it.
102 DR 1-102 provides that "[a] lawyer shall not: . . . [e]ngage in conduct
involving dishonesty, fraud, deceit or misrepresentation. MODEL CODE DR 1-
102(A)(4).
103 The cases listed in the annotation that involve deception of clients include
five cases involving misuse of client funds, two cases involving deceit of clients as to
the status of cases, one case of a lawyer who did not tell a client about suspension
from practice, and one attorney's fraudulent fee arrangement. See Am. Bar Ass'n,
ANNOTATED MODEL RULES OF PROFESSIONAL CONDUCT 355 (1984) [hereinafter
ANNOTATED MODEL RULES]. In one case, DR 1-102(A)(4), which prohibits dishonesty,
fraud, deceit and misrepresentation, was found to be violated because a lawyer had
failed to notify a client of an error and of the client's possible malpractice claim
against the lawyer. See Tallon v. Committee on Professional Standards, 86 A.D.2d
897, 898, 447 N.Y.S.2d 50, 51 (1982) (holding that "[an attorney has a professional
duty to promptly notify his client of his failure to act and of the possible claim his
client may thus have against him"). This case is unusual in that it reads one of the
most general provisions in the code to impose a very specific affirmative duty.
104 Although most of the cases under the dishonesty provision involve
conduct that would be proscribed under other Model Rules, this provision
fills any gaps that may exist between these other Rules. For instance, in
ABA [Comm. on Ethics and Professional Responsibility] Formal Opinion
337 (Aug. 10, 1974), the Standing Committee on Ethics and Professional
Responsibility held that a lawyer's recording of conversations without the
1990] LYING TO CLIENTS

102(A)(4). The District of Columbia Court of Appeals recently

rejected a disciplinary board recommendation for a six-month sus-
pension of a lawyer who was found to have violated DR 1-102(A)(4),
and instead imposed a thirty-day suspension. The lawyer had altered
eight credit card receipts to recover funds that he had advanced for
other legitimate expenses on behalf of a client. The attorney placed
a "1" before each amount charged, and had collected $800 more
than the actual charges on the receipts.1 0 5 The lawyer argued that
he intended only to recoup funds he had advanced for other client
expenses, and urged that he should not be disciplined because the
amount involved was small. The court rejected these arguments,
deciding that deliberate alteration of documents relating to client
funds is presumptively material and subject to discipline." 6
An Iowa lawyer who tried to cover up a brokerage firm error by
using his client's money for several weeks without permission was
found to have violated DR 1-102(A)(4) and was suspended indefi-
nitely with a possibility of reinstatement after three years. 10 7 The
brokerage firm made a stock purchase pursuant to the lawyer's
instructions, but credited the purchase to the lawyer's personal
account instead of setting up an account for the client. By the time
the lawyer discovered the error, the price of the stock had dropped,
and correction of the error would have resulted in a $2,000 loss to
the client. The lawyer "wanted to avoid losing face with the Glidden
legatees concerning what initially appeared to be a poor invest-
ment," 0 8 so he left the stock in his own account, and reimbursed the
trust account using his own funds. The clients were not informed of
the lawyer's actions. The stock was later sold, and the lawyer made a
10 9
profit of $2110 on the transaction.
The Maryland Supreme Court in 1957 disbarred a lawyer for
inserting slugs instead of coins into parking meters, and for using a

consent of all parties violated the prohibition against dishonesty, fraud,

deceit or misrepresentation.
ANNOTATED MODEL RULES, supra note 103, at 355-56.
105 See In re Schneider, 553 A.2d 206 (D.C. Ct. App. 1989) cited inLEGAL TIMES,
Feb. 13, 1989, at 30, col. 2. This deception was reported to the disciplinary
authorities only after the lawyer had left the law firm, taking the client with him. See
id.
106 See id.
107 See Committee on Professional Ethics & Conduct v. Brodsky, 318 N.W.2d
180, 183 (Iowa 1982). The lawyer violated other rules as well. See id.at 180.
108 See id.at 183.
109 See id.The lawyer also lied to the Grievance Commission regarding his
actions. See id.
690 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

false name when arrested.1"' The Court stated that "[m]orally, the
offense was as great as though he had stolen money deposited by
others in the meters, and amounts at least to 'fraud or deceit.' """
It is difficult to find any consistent line of analysis in these or
other similar cases; the variation in punishments imposed cannot be
explained by any observable difference among the offenses involved.
The Model Rules include some new provisions on lawyer hon-
esty with clients that did not appear in the Model Code, but the lan-
guage of the Model Rules raises as many questions as it answers.
Model Rule 1.4 addresses a lawyer's affirmative duty to provide her
client with information about the lawyer's work. It states:
(a) A lawyer shall keep a client reasonably informed about the sta-
tus of a matter and promptly comply with reasonable requests for
information.
(b) A lawyer shall explain a matter to the extent reasonably neces-
sary to permit the client to make informed decisions regarding the
12
representation. 1
Although this provision imposes some affirmative duty of disclo-
sure on lawyers, the comments make clear that the duty varies with
the circumstances. The lawyer is supposed to "fulfill reasonable cli-
ent expectations for information."' "13 The comments specifically
address the question of when a lawyer may withhold information:
In some circumstances, a lawyer may be justified in delaying trans-
mission of information when the client would be likely to react
imprudently to an immediate communication. Thus, a lawyer
might withhold a psychiatric diagnosis of a client when the examin-
ing psychiatrist indicates that disclosure would harm the client. A
lawyer may not withhold information to serve the lawyer's own
14
interest or convenience.1

110 See Fellner v. Bar Ass'n, 213 Md 243, 247, 131 A.2d 729, 731-32 (1957).
The court also stated that "[i]t is not without significance, as bearing upon his moral
fitness, that he has never yet admitted that he did wrong." Id. at 247, 131 A.2d at
731.
111 Id. at 247, 131 A.2d at 731.
112 MODEL RULE 1.4; see also Model Code EC 7-8, which provides, similarly, but
using only precatory language that "[a] lawyer should exert his best efforts to insure
that decisions of his client are made only after the client has been informed of
relevant considerations. A lawyer ought to initiate this decision-making process if the
client does not do so." Id. Model Code EC 9-2 provides that "a lawyer should fully
and promptly inform his client of material developments in the matters being
handled for the client."
1 13 MODEL RULE 1.4 comment.
114 Id. Many of the recommendations contained in the last section of this
1990] LYING TO CLIENTS

The Rule does not articulate how a lawyer should determine

reasonable client expectations, nor does it specify any particular
types of information which must be disclosed. But even this vague
Rule was felt to be too burdensome by some who participated in
evaluating the proposed draft of the Model Rules. Their proposals
to eliminate the mandatory language were defeated. The legislative
history states that:
[p]roposed amendments, which would have made the rule merely
precatory, were defeated. Representatives of the Commission
emphasized that a precatory rule would not adequately protect the
interest of the client in knowing what was happening. Also, they
noted that because a lawyer's failure to keep a client informed was
a frequent source of disciplinary complaints, the obligation to keep
a client reasonably informed should be made clear. I 5
Whether the Rule accomplishes its purpose of improving lawyer
communication with clients remains an open question.
Model Rule 2.1 specifically requires lawyers to be candid when
advising their clients. It states: "In representing a client, a lawyer
shall exercise independent professional judgment and render candid
advice."" 6 The comment further emphasizes that clients are enti-
tled to honest assessments of their situations, and encourages law-
yers to disclose even unpleasant information.' 7 Similarly, the
ABA's annotations to these rules interpret the independent advice
requirerment as prohibiting lawyers from allowing avarice or a desire
for professional recognition to affect the advice given to a client."s
The ethical codes impose general requirements of honesty and
disclosure from lawyers with respect to fees. The Model Code pro-
hibits "clearly excessive fee[s]"' 9 and the Model Rules require that

Article could be regarded as implementation of this prohibition of self-interested

withholding of information. See infra text accompanying notes 360-81.
115 LEGISLATIVE HISTORY, supra note 101, at 37.
116 MODEL RULE 2.1.
117 See id. comment. There is no comparable provision to Model Rule 2.1 in the
Model Code.
118 See ANNOTATED MODEL RULES, supra note 103, Rule 2.1 ann. at 189, citing In
re Kali, 116 Ariz. 285, 287, 569 P.2d 227, 229 (1977) (disciplining a lawyer for
arranging loans between two clients so that the client could afford the lawyer's
services); In re General Motors Engine Interchange Litig., 594 F.2d 1106, 1125-26
(7th Cir. 1979) (finding that unauthorized settlement negotiations by attorneys in a
class action suit often are stimulated by the desire to gain "the prestige attendant
upon negotiating a large settlement against a corporate defendant"), cert. denied, 444
U.S. 870 (1979).
119 MODEL CODE DR 2-106(a).
692 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

"[a] lawyer's fee shall be reasonable." 1 2 Both codes list factors that
lawyers may consider in setting fees. 2 ' The Model Rules, for exam-
ple, require that "[w]hen the lawyer has not regularly represented
the client, the basis or rate of the fee shall be communicated to the
client, preferably in writing, before or within a reasonable time after
commencing the representation."' 2 2 The Model Code similarly
encourages, but does not require, a written fee agreement. 123 The
Model Rules' disclosure requirement appears not to apply to long-
term relationships with clients (except at their inception). The
requirement is so vague that it arguably would be satisfied by an
extremely general disclosure. The comments explain: "It is not nec-
essary to recite all the factors that underlie the basis of the fee, but
only those that are directly involved in its computation."' 24 The
Rules require no particular methods of tabulating hours worked and
1 25
require no particular disclosure in bills sent to clients.
These rules were written in contemplation of a much narrower
set of bases for fee computation than have since been developed.
The annotated edition of the Model Rules explains that in addition
to hourly rate billing and contingent fees, the two most common
methods, lawyers may request clients to pay advances or retainers.
This discussion fails to mention premium billing or billing
multipliers.
Although the rules dealing with private communication between
lawyers and clients are scanty, the subject of advertising-public
communication with prospective clients-is addressed (particularly
in the Model Code) in compulsive detail. 1 26 DR 2-101(A) prohibits
"the use of any form of public communication containing a false,
fraudulent, misleading, deceptive, self-laudatory or unfair statement
or claim."' 12 7 Model Rule 7.1 reads:
A lawyer shall not make a false or misleading communication
about the lawyer or the lawyer's services. A communication is false
or misleading if it:

120 MODEL RULE 1.5(a).

121 See MODEL CODE DR 2-106(b); MODEL RULE 1.5(a).
122 MODEL RULE 1.5(b).
123 See MODEL CODE EC 2-19.
124 MODEL RULE 1.5 comment.
125 The newer methods of billing make it even more necessary to require
specific disclosures. See ANNOTATED MODEL RULES, supra note 103, Rule 1.5 ann., at
54.
126 See MODEL CODE DR 2-101(B), which lists exactly what information lawyers
may offer when advertising legal services.
127 Id. at DR 2-101(A).
1990] LYING TO CLIENTS

(a) contains a material misrepresentation of fact or law, or

omits a fact necessary to make the statement considered as a whole
not materially misleading;
(b) is likely to create an unjustified expectation about results
the lawyer can achieve ....128
The Comment explains that this rule "governs all communications
about a lawyer's services, including advertising," 1 2 9 but the annota-
tions to the Model Rules treat this rule as if it concerns only advertis-
ing and not individual communication with prospective or present
clients. 130
Model Rule 1.15 requires certain disclosures to clients of infor-
mation about client funds or property in possession of the lawyer. It
requires prompt notification upon receipt, and prompt rendering of
a full accounting regarding client funds or property."l ' Both codes
also include explicit disclosure requirements if a lawyer is entering
32
into a business transaction with a client.1
The bar associations mirror the general unconcern about lawyer
honesty with clients that is reflected in the ethical rules. The bar
counsels who receive and respond to complaints of ethical violations
by lawyers tend to undervalue client complaints and to be biased in
favor of the lawyers.' 3 3 To the extent that bar officials show aware-
ness of problems in communication between lawyers and clients,
they tend to assume that the lawyer is simply unaware of the client's
need for information, rather than that the lawyer is withholding
information as a means of control. One bar president said:
A major source of these complaints is a breakdown in commu-
nications between attorney and client. Many [lawyers] simply do
not recognize that [they] must keep [their] clients advised, explain
any unusual delays, answer letters and telephone calls, and be
available when clients want to find out what is happening to their
cases. 134

The codes are more specific in their articulation of lawyers'

duties of candor toward opposing counsel and toward tribunals than

128 MODEL RULE 7.1.

129 Id., comment.
130 See ANNOTATED MODEL RULES, supra note 103, Rule 7.1 ann., at 306-12.
131 See MODEL RULE 1.15(b). This provision is very similar to DR 9-102(B) in
the Model Code.
132 See MODEL RULE 1.8; MODEL CODE DR 5-104(A).
133 See Steele & Nimmer, supra note 80, at 966-67.
'34 Upton, President'sMessage, 13 N.H.B.J. 56 (1971), quoted in Steele & Nimmer,
supra note 80, at 967.
694 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

in addressing duties of candor to clients. Model Rule 4.1, titled

"Truthfulness in Statements to Others," provides that:
[i]n the course of representing a client a lawyer shall not
knowingly:
(a) make a false statement of material fact or law to a third
person; or
(b) fail to disclose a material fact to a third person when disclo-
sure is necessary to avoid assisting a criminal or fraudulent act by a
client, unless disclosure is prohibited by rule 1.6.135
The comment following this rule makes it clear that the drafters did
3 6
not intend to include clients when they referred to third persons.'
The Model Rules acknowledge that in some circumstances it
may be acceptable for lawyers to deceive others. Of particular inter-
est is a comment after Model Rule 4.1 which explains that lawyers
are allowed to deceive lawyer adversaries under certain circum-
stances. It explains:
This Rule refers to statements of fact. Whether a particular
statement should be regarded as one of fact can depend on the
circumstances. Under generally accepted conventions in negotia-
tion, certain types of statements ordinarily are not taken as state-
ments of material fact. Estimates of price or value placed on the
subject of a transaction and a party's intentions as to an acceptable
settlement of a claim are in this category, and so is the existence of
an undisclosed principal except
37
where nondisclosure of the princi-
pal would constitute fraud.'

135 MODEL RULE 4.1. Notice that this rule sets a less stringent rule for deception
by omission than by commission. Both codes draw this distinction frequently. The
comment to Rule 4.1 explains that "a lawyer is required to be truthful when dealing
with others on a client's behalf." Clients are excluded by implication from "others."
See MODEL RULE 4.1 comment.
136 The Model Code provision parallel to Model Rule 4.1(a) appears to require
lawyers to be truthful to third persons and to clients. Model Code DR 7-102(A)(5)
states that "[i]n his representation of a client, a lawyer shall not... [k]nowingly make
a false statement of law or fact." MODEL CODE DR 7-102(A)(5). The narrowing of the
provision in the Model Rules to exclude statement to clients probably was
unintentional. Since the Model Code is so general in its mandate, the difference
between the Model Code and the Model Rules may be insignificant. Neither code
looks at false statements to clients or withholding information from clients as a
separate issue.
137 MODEL RULE 4.1 comment. An early draft of Rule 4.1 was similar in content
but different in form. The rule required lawyers to "be fair in dealing with other
participants." The comment to this proposal stated that "[f]airness in negotiation
implies that representations by or on behalf of one party to the other party be
truthful. . . . The precise contours of the legal duties concerning disclosure,
representation, puffery, overreaching, and other aspects of honesty in negotiations
cannot be concisely stated." MODEL RULE 4.2 comment (Discussion Draft 1980),
1990] LYING TO CLIENTS

In essence this comment means that a lawyer may deceive the other
lawyer during negotiation about his view of the value of a case or his
client's intentions as to settlement.1 38 It implicitly acknowledges
that there are some exceptions to the blanket prohibition on decep-
tion in Model Rule 8.4. Nowhere in either the Model Code or the
Model Rules is there any comparable acknowledgement that certain
types of deception of clients is acceptable.
In general, the Model Code and the Model Rules are silent on
the issue of lawyer deception of clients. The codes are so grounded
in the adversary model of legal representation that the language
reflects the value placed on absolute loyalty of lawyer to client 139 ,
and except in certain narrow circumstances (such as handling client

quoted in White, supra note 27, at 928, 931 n.15. The language adopted in the final
rule reflects a tilt in the direction of requiring truthfulness to third parties, with an
explicit acknowledgement that certain types of deception are acceptable.
138 An interesting question is whether the drafters of the Model Rules chose to
draft the rule in a cryptic manner by using a wholly unconventional definition of
materiality rather than by acknowledging that they were condoning certain types of
deception. Black's Law Dictionary defines the word "material" as "important; more or
less necessary; having influence or effect; going to the merits; having to do with
matter, as distinguished from form. Representation relating to matter which is so
substantial and important as to influence party to whom made is 'material.'" BLACK'S
LAw DiCTiONARY 880 (5th ed. 1979).
A more specific definition of materiality is provided by case law on the lawyer's
duty to disclose material facts to her client: "Material facts are those which, if known
to the client, might well have caused him, acting as a reasonable man, to alter his
proposed course of conduct." Spector v. Mermelstein, 361 F. Supp. 30, 40 (S.D.N.Y.
1972), modified on other grounds, 485 F.2d 474 (2d Cir. 1973), quoted in Spiegel, supra
note 41, at 68-69. The value of the transaction at issue and the parties' intentions as
to settlement are among the most "material" facts in any litigation.
Guernsey characterizes this commentary in the Model Rules as "schizoid,"
because it "states that certain misstatements are not misstatements." Guernsey, supra
note 7, at 126.
139 For example, Model Code EC 5-1 provides that:
[t]he professional judgment of a lawyer should be exercised, within the
bounds of the law, solely for the benefit of his client and free of
compromising influences and loyalties. Neither his personal interests, the
interests of other clients, nor the desires of third persons should be
permitted to dilute his loyalty to his client.
MODEL CODE EC 5-1.
The provision cites a court decision that states:
because of his professional responsibility and the confidence and trust
which his client may legitimately repose in him, he must adhere to a high
standard of honesty, integrity and good faith in dealing with his client. He
is not permitted to take advantage of his position or superior knowledge
to impose upon the client; nor to conceal facts or law, nor in any way
deceive him without being held responsible therefor.
Id., note 1 (quoting Smoot v. Lund, 13 Utah 2d 168, 172, 369 P. 2d 933, 936 (1962)).
696 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

funds or engaging in business transactions with clients) the drafters

appear to assume that lawyers are always honest with their clients
and that regulation is not needed in this area.

B. MalpracticeLaw

Although the disciplinary codes treat lying to clients as a non-

issue, the subject figures prominently in cases on legal malprac-
tice. 140 Cases on intentional harm of clients by lawyers present a
catalog of deceptive practices. For instance, lawyers have been
accused of deliberately overcharging clients, 4 ' billing clients at $60
42
per hour when the original agreement was to bill at $30 per hour,'
and for making false representations that the lawyer was pursuing a
client's claim when in fact she was taking no action.' 4 3 Many of these
cases involve lawyers who deceive their clients in order to steal large
14 4
sums of money.
One court found a lawyer guilty of fraud because he led his cli-
ents to believe that he had filed a personal injury lawsuit and that the
adversary had made a settlement offer when, in fact, the statute of
limitations had run.1 45 The lawyer negotiated a malpractice settle-
ment with the insurer of a lawyer with whom he was collaborating,

140 See, e.g., C. WOLFRAM, supra note 66, at 719-22 (discussing a number of cases
in which lawyers have been found liable for malpractice because they made various
misrepresentations to clients).
141 See Coughlin v. SeRine, 154 Ill. App. 3d 510, 514, 507 N.E.2d 505, 508-09
(1987) (finding a cause of action for legal malpractice where a lawyer, unfamiliar with
the applicable law, accepted employment and without authorization billed for more
hours than should have been necessary to perform the work).
142 See Stinson v. Feminist Women's Health Center, 416 So. 2d 1183, 1184-85
(Fla. Dist. Ct. App. 1982) (awarding compensatory and punitive damages against
attorneys who were found to have "obfuscated, manipulated and deceived their
clients in a tortious attempt to take all of the settlement money").
143 See McKinnon v. Tibbetts, 440 A.2d 1028, 1031 (Me. 1982) (finding that the
evidence was sufficient to hold the attorney liable for fraud because ajury could have
found that although the attorney was trying to protect the client's feelings and did
not wish to cause him harm, the attorney dissembled about his efforts on behalf of
the client).
144 See, e.g., Husted v. McCloud, 450 N.E.2d 491, 492 (Ind. 1983) (involving a
lawyer who converted $18,800 of a client's funds for his own use). In some cases,
however, the conduct involves wrong information that the lawyer has given the client
for reasons other than personal financial benefit. See, e.g., Boynton v. Lopez, 473
A.2d 375, 377 (D.C. 1984) (holding a lawyer liable for misrepresentation when he led
his client to believe that the $10,000 she was to receive was coming from an
insurance company in settlement of her claim, when in fact, the insurance company
paid only $1451.76, and the remainder came from other sources).
145 See O'Callaghan v. Weitzman, 291 Pa. Super. 471, 475, 436 A.2d 212, 215
(1981).
1990] LYING TO CLIENTS

and represented it to his client as a settlement offer in the personal

injury case. The lawyer took his forty percent fee out 1of46
the settle-
ment before transferring the remainder to the clients.
In another case, a court held an attorney liable for falsely
informing his client that he had obtained a divorce for her when the
ase actually had been dismissed for want of prosecution. In reliance
on the lawyer's representation that she was divorced, the client mar-
ried another man. 1 4 7 Another court found a lawyer to have
defrauded his client by inducing him to sign appeal bonds and lead-
ing the client to believe that no legal obligations would result from
1 48
doing so.
The preceding cases establish that lawyers are subject to mal-
practice liability for intentional misrepresentation that causes dam-
age to a client. In some cases lawyers have had to pay punitive
damages to clients for intentional misrepresentation.1 4 9 Many legal
malpractice insurance policies include a specific exclusion for an
attorney's dishonest or fraudulent conduct. 15 0 Some courts have
upheld these provisions,' but others have been reluctant to find

146 See id. The court noted that "[the purpose of [the] omission was to induce
appellees to accept the settlement offer and unknowingly forego any possible
malpractice claim against appellant while still permitting appellant to collect a
sizeable fee." Id.
147 See Hill v. Montgomery, 84 Ill. App. 300, 303 (1899), aft'd, 84 Ill. 220, 56
N.E. 32.0 (1900).
148 See Lupo v. Lupo, 475 So. 2d 402, 405 (La. Ct. App. 1985).
149 See, e.g., Singleton v. Forman, 435 F.2d 962, 971 (5th Cir. 1970) (holding
that punitive damages may be awarded against a lawyer for an "intentional wrong,
insult, abuse, gross negligence, or oppression"); Hall v. Wright, 261 Iowa 758, 773,
156 N.W.2d 661, 670 (1968) (approving an award of $15,000 in exemplary damages
in a case where a lawyer's false representation to a client caused her to lose her
home). But see Boynton v. Lopez, 473 A.2d 375, 377-78 (D.C. 1984) (holding that
intentional misrepresentation of a settlement offer to a client did not warrant award
of punitive damages because the act was not "aggravated by evil motive, actual
malice, deliberate violence or oppression"); McKinnon v. Tibbetts, 440 A.2d 1028,
1031 (Me. 1982) (overturning an award for punitive damages because although the
attorney's conduct was fraudulent, it did not show wantonness or reckless
indifference to the rights of his client). By statute, New York provides for treble
damages if an attorney willfully delays the progress of a case for personal gain. See
N.Y. JUD. LAW § 487 (McKinney 1983).
150 One malpractice case quoted a policy which excluded coverage "if and to the
extent the claim: (1) arises out of or in connection with any dishonest, fraudulent,
criminal or malicious act or omission of any Insured." Perl v. St. Paul Fire & Marine
Ins. Co., 345 N.W.2d 209, 212 (Minn. 1984). Another such policy excluded from
coverage any claim "that results in a final adjudication that any Insured has
committed a dishonest, fraudulent or malicious act, error, omission or personal
injury with deliberate purpose and intent." FSLIC v. Mmahat, 97 Bankr. 293, 297
(E.D. La. 1988).
151 See Battisti v. Continental Casualty Co., 406 F.2d 1318, 1321(5th Cir. 1969);
698 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

particular types of deceitful behavior to be encompassed by the

152
exclusion.
The threat of malpractice may deter some lawyer misconduct,
but the remedy is not available to most deceived clients. Some are
unaware of their lawyers' misconduct,' while others have difficulty
finding lawyers to represent them in malpractice actions. In some
cases the amount involved is too small to warrant litigation.

C. Consumer Law

All of the states and the District of Columbia have laws that pro-
hibit sellers of goods and services to engage in unfair and deceptive
acts and practices.' 5 4 Most of these laws were enacted between the
mid-1960s and mid-1970s. The laws are often the basis of lawsuits
against used car dealers, health spas, home improvement companies,
and other businesses that engage in consumer fraud.' 5 5 Some of the
laws specifically exempt lawyers. During the last decade, however,
several courts have held that lawyers may be sued for violating the
56
consumer laws.'
One court held that attorney services were covered under a con-
sumer statute because of its regulation of "the conduct of any trade

Capital Bank & Trust Co. v. Core, 343 So. 2d 284, 288-89 (La. Ct. App.), cert. denied,
345 So. 2d 504 (La. 1977); St. Paul Fire & Marine Ins. Co. v. Aragona, 33 Md. App.
499, 507, 365 A.2d 309, 313 (1976), aff'd, 281 Md. 371, 378 A.2d 1346 (1977).
152 See, e.g., St. Paul Fire & Marine Ins. Co. v. Icard, Merrill, Gullis & Timm,
P.A., 196 So. 2d 219, 222 (Fla. Dist. Ct. App.) (holding that even if the policy
excluded coverage for some of the attorney's acts, as long as some of the attorney's
other acts were less culpable, and were malpractice at most, then the insurer had an
obligation to defend and indemnify the insured attorney), cert. denied, 201 So. 2d 897
(Fl. 1967); Passanante v. Yormark, 138 NJ. Super. 233, 240, 350 A.2d 497, 501
(1975), (holding that where "the gravamen of plaintiff's complaint" was negligence,
the fact that the attorney "may have coated his negligence with deceit designed to
disarm his clients" did not bring his actions within the exclusion for fraudulent acts).
cert. denied, 70 NJ. 144, 358 A.2d 191 (1976); D. MEISELMAN, ATTORNEY MALPRACTICE:
LAW AND PROCEDURi § 21:6 (1980) (noting that although some courts have upheld
the policy exclusions for fraud, the majority and better view is to limit their
applicability).
153 The Supreme Court of California, recognizing the difficulty of discovering
legal malpractice, held that the statute of limitations on such actions does not begin
to run until the client discovers or should discover the cause of action. See Neel v.
Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal. 3d 176, 190, 491 P.2d 421,430, 98
Cal. Rptr. 837, 846 (1971).
154 SeeJ. SHELDON, supra note 49, at § 1.1.
155 See id. at §§ 5.4.3, 5.6.1, 5.9.4.
156 See id. at §§ 2.3.9, 5.11; Marcotte, New Threat to Attorneys?, A.B.A. J., Dec.
1988, at 17 (noting various cases in which courts have held lawyers liable for violation
of consumer fraud statutes and discussing a recent New Jersey case).
1990] LYING TO CLIENTS

or commerce." 15 7 In another recent case a court found the presi-

dent-elect of the New Jersey State Bar Association liable under the
state consumer fraud law for concealing from a client that the lawyer
had failed to file within the statute of limitations on a federal civil
rights case.' 58 Other cases have held that consumer laws cover the
entrepreneurial aspects of law practice, such as bringing in clients
and determining how to bill them, but do not address issues of pro-
fessional conduct, such as competence.15 9 Some courts have held
that consumer laws do not cover lawyers because state courts exclu-
sively regulate the legal profession.' 6 °
The consumer laws prevent merchants and sellers of services
from cheating their customers. If lawyers lie to their clients about
the amount of time they spend doing the work, or about whether the
work they suggest is necessary, why should they be treated differ-
ently from an auto repair shop that inflates its bill for labor, or makes
unnecessary repairs?
The consumer laws are an unusually powerful tool for deterring
undesirable conduct because they prohibit a wide range of conduct
and often permit awards of treble damages and attorneys' fees. 1"'
Though this area of law has enormous potential to increase the hon-
esty of lawyers, courts have only recently begun to apply consumer
law to lawyer misconduct. If they continue to do so, these laws may
offer clients remedies that are more effective than disciplinary pro-
ceedings and simpler than legal malpractice cases.

IV. WHAT LAWYERS LIE ABOUT

A. Empirical Information about Deception of Clients

No empirical studies have attempted to determine how often

157 Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510,
520-21, 461 A.2d 938, 943 (1983).
158 See Malench v. Township of Hamilton, No. L-76814-86 (NJ. Super. Ct.
1988), cited in Marcotte, supra note 156, at 17.
159 See Short v. Demopolis, 103 Wash. 2d 52, 60-62, 691 P.2d 163, 168 (1984)
(distinguishing between entrepreneurial aspects and actual practice of law and
stating that the claims concerned with the latter were exempt from consumer laws).
160 See Rousseau v. Eshleman, 128 N.H. 564, 567, 519 A.2d 243, 245 (1986).
161 See, e.g., D.C. CODE ANN. § 28-3905(k)(1) (1981) (providing for "any
consumer who suffers damage" an action to recover treble damages, attorneys' fees
and any other relief which the court deems proper to remedy violations of the D.C.
unfair trade practices statute).
700 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

lawyers deceive their clients and what types of deception occur. A.

1 62
few studies have produced some relevant data.
Douglas Rosenthal conducted a major study of lawyer-client
relationships in personal injury cases.' 6' He found that those clients
who actively, participated in the litigation process and who were
demanding of their lawyers got better service from their lawyers than
more passive clients.' 6 4 He suggests that the traditional model of
lawyer-client relationships, in which the lawyer dominates the deci-
sion-making process and does not apprise the client of the details of
the lawyer's work, discourages active client involvement and pro-
vides clients with inferior service.
Rosenthal argues that assertive clients get better service because
"a quick settlement is often in the lawyer's financial interest, while
waiting the insurer out is often in the client's financial interest."' 6 5
Rosenthal suggests that a lawyer who is under financial pressure has
four realistic choices about how to generate income:
(1) He can cut corners in preparing the case. (2) He can build his
fee by charging disbursements to the client. (3) He can persuade
the client that a discounted early settlement is in his best interest.
(4) He can bring the existing interest conflict to the client's atten-
66
tion and negotiate a compromise claims strategy.'
Rosenthal urges that the last of the four options is the only can-
did one. My lawyer interviews suggest that the other three choices
are used often. One lawyer Rosenthal interviewed reported a typical
method of handling the conflict of interest between lawyer and client
in settling cases.
Theoretically, it's unethical not to report accurately negotia-
tions with an insurer to the client. But you can't, and no lawyer
does. You tell him about it in such a way that he is prepared to be
satisfied. Say the other side offers $5,000. You tell the client that
they offered $3,000. He'll say "That's no good." You agree and
say, casually, that you will try to get $4,500 out of them which
would be fine. He's still not so happy, but reluctantly agrees. Two
days later you call him back with the "good news" that you got him
more than he expected, $5,000. Now the client is prepared to be

162 There have been few empirical studies of lawyer-client relationships. See,
e.g., Nelson, Ideology Practice and Professional Autonomy: Social Values and Client
Relationships in the Large Law Firm, 37 STAN. L. REV. 503, 506 (1985).
163 See D. ROSENTHAL, supra note 22, at 61.
164 See id.
165 Id. at 96.
166 Id. at 106.
 1990] LYING TO CLIENTS

happy. You know what is a good settlement and what he should

take. If it is necessary to lie and
16 7
cheat him to get him to accept
what's good for him you do it.
Rosenthal's findings suggest that lawyers are less likely to
deceive active clients, who are closely involved with their cases and
frequently demand information from their lawyers, than they are to
deceive passive clients. The lawyer is more accountable to the client
and less likely to think that he can manipulate the client's view of the
situation. Rosenthal proposes to implement his "participatory
68
model" by imposing an informed consent obligation on lawyers.'
Eric Steele and Raymond Nimmer published an important study
in 1976.169 They did an analysis of lawyer-client relationships and of
possibilities for improving the system that regulates lawyer conduct
toward clients. Part of their study involved in-depth interviews with
forty-five people who had experienced some problems with their
lawyers. 170 The most common source of client discontent was fee
disputes. 17 ' According to the clients interviewed, many attorneys
had insisted on making unilateral determinations of what. fee was
appropriate. Others did not provide bills that itemized their serv-
ices. Many lawyers charged fees that "substantially exceeded" esti-
mates that they had given the clients. Consequently, many of the
clients felt that the lawyers violated their initial agreements about
fees.172
The second most common subjects of client discontent were the
lawyers' delay in completing work and the low quality of work done.
Sixteen of the clients felt that the lawyers had neglected their mat-
ters; they reported delays ranging from three days to six years.
Other complaints included conflicts of interest, failure to keep confi-
17
dences, and failure to perform tasks the clients requested.
Steele and Nimmer did not focus on the specific question of
whether the lawyers had deceived their clients, but many of the cli-
ents they interviewed reported that they felt their lawyers had

167 Id. at I11.

168 See id. at 154-55. As discussed elsewhere, informed consent may not require
sufficient disclosure about the process of law practice. See supra note 4 1.
169 Steele & Nimmer, supra note 80, at 917.
170 The interviewees consisted of forty-five people from a random sample of
3,874 households in one city, who identified themselves as having had serious
problems with their lawyers, and were willing to discuss those problems. See id. at
948 n.42.
171 See id. at 953.
172 See id. at 952-54.
173 See id. at 954-58.
702 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

deceived them. One client, who complained of delay, clearly felt that
his lawyer was lying to him:
Ijust kept calling him periodically and telling him that I would like
to get this settled. First I spoke to him. He just put me off-"I
gotta do this and that." I just felt that he was stringing me along.
It got to where he was never there when the secretary answered.
174
She would tell me he would call me back and he never did.
Of the forty-five clients that Steele and Nimmer interviewed,
none filed a grievance against the lawyer with the bar disciplinary
system, and only one client actually contacted the bar. Thirty-five
did not know that the disciplinary system existed.' 75 The authors
conclude that this finding "suggests that the disciplinary system in
fact receives, reviews, and responds to only a small fraction of the
potential cases."' 76 The clients reacted passively to their problems
with their lawyers. They requested explanations from their lawyers
and then paid the bills, even if they thought the bills were exces-
sive. 17 7 The perceived powerlessness of the clients Steele and Nim-
mer interviewed highlights the inequality of many lawyer-client
relationships. Both Rosenthal and Steele and Nimmer find that law-
yers are not very accountable to their clients unless the clients are
unusually assertive.
The American Bar Association keeps data on those client com-
plaints that result in disciplinary action against lawyers.' 78 The ABA
does not categorize these statistics according to which offenses
involve deceptive conduct, except for a category called "general mis-
representation." One can only speculate about the extent to which
other offenses may have involved deception. In 1985, the offense of
general misrepresentation accounted for five percent of all disbar-
ments (twenty-two cases), six percent of all suspensions (thirty-eight
1 79
cases), and four percent of all public reprimands (thirteen cases).

174 Id at 959.
175 See id. at 958.
176 Id. at 957.
177 About one-third of the forty-five clients took some additional action. Nine
clients had third parties assist in resolving the problem. Six attempted to switch
lawyers, and one attempted to recover losses from the attorney. See id. at 960-62.
178 The disciplinary agencies dismiss ninety percent of client complaints for
failure to state a claim. See Telephone interview with Tim McPike of the ABA.
179 See id. The total number of sanctions included 448 disbarments, 627
suspensions, 36 resignations, and 332 public reprimands. The largest number of
cases were in the category of general neglect. General neglect accounted for fifteen
percent of disbarments, fifteen percent of suspensions, eight point three percent of
resignations, and twenty-four percent of public reprimands. See id.
 1990] LYING TO CLIENTS

These strikingly low figures reveal virtually nothing about the extent
to which lawyers deceive their clients. They do show, however, how
few lawyers are disciplined by the existing regulatory system.
Lucinda Vandervort's study of lawyer-client relationships
includes a 1978 random survey of clients in Ontario about the
degree of their satisfaction with legal services.1i s Overall, 36% of
the participants complained about the services they received. Of
those, 53% "complained that the lawyer did not communicate to
them about progress on the case" and thirty-two percent complained
"that the lawyer did not consult with them in making decisions."' 8 1
Sixty-three percent said "that the lawyer was slow in handling the
case." 1 2 Although this study does not focus specifically on decep-
tion, it suggests that, at least in Canada, there is a high level of client
discontent with lawyer communication.
In another Canadian study, Herbert Kritzer explored the nature
of the lawyer-client relationship by interviewing sixty lawyers, court
officials, corporate executives, and others in Toronto.18 3 He found a
pervasive conflict between the lawyer's economic interest and the cli-
ent's interest. 1 4 Many interviewed by Kritzer "commented on law-
yers' reluctance to discuss explicitly with their clients the business
aspects of the relationship,"'185 especially issues related to legal fees.

B. The Lawyer Interviews

I interviewed twenty lawyers' 8 6 to identify examples of lawyers

deceiving clients.' 8 7 Most of these attorneys are in private practice,
though a few work for the government or for other public service
institutions. I spoke with people in various practices, including small
firms, large firms, local practice, and national practice. The focus is

180 See Vandervort, The Lawyer-Client Relationship in Ontario: Use and Abuse of the
Authority to Act, 16 OTTAWA L. REV. 526, 531 (1984).
181 Id.
182 Id.
183 See Kritzer, The Dimensions of Lawyer-Client Relations: Notes Toward a Theory and
a Field Study, 1984 AM. B. FOUND. RES.J. 409.
184 See id. at 410. Kritzer states that "few professionals are selfless actors
seeking solely to advance... the well-being of humankind; professionals are workers
who are engaged in an activity to earn a living." Id. at 413.
185 Id. at 418.
186 In addition to the lawyers, I spoke with three law students who offered
examples from their experiences working in law firms, one as a secretary, one as a
paralegal, and one as a law clerk.
187 1 make no assertion that these examples are "typical" or "normal," but only
that my sources report that these stories are true-that they or others deceived
clients in the ways they describe.
704 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

on civil practice.' 8 8 The purpose of the study was not to expose

egregious deception, but to probe the8 9fabric of daily law practice to
identify common types of deception.'
The subjects of the interviews are not a random sample. Their
numbers are too few to be statistically significant. They do represent
a diverse spectrum of educational backgrounds, including national,
regional, and local law schools. Very few of those invited to partici-
pate declined.' 9 ' None of the lawyers interviewed has ever been dis-
ciplined by a bar association.
I conducted the interviews in person when possible or on the
telephone if geography made a face to face discussion impractical.
Each lawyer talked about specific instances in which she had deceived
a client or had seen another lawyer do so.' 9 l For each example I
asked whether the lawyer thought the conduct was justifiable and
92
why.'

188 This Article focuses on situations that arise in civil practice. Criminal cases
tend to present more dramatic ethical issues as they are much more court-based. In
civil cases the problems are more subtle, and often go unnoticed. Nearly all the
activity in civil cases occurs outside of the courthouse, in someone's office, behind
closed doors. In the federal court system in 1985, for example, only about five
percent of civil cases filed were tried. See R. COVER, 0. Fiss &J. RESNIK, PROCEDURE
198 (1988). In criminal cases at least one of the lawyers represents the state, and
often both are full-time salaried government employees. The structure of criminal
practice eliminates (except in private criminal defense firms) the profit factor that
motivates so much of the deception of clients by private practice.
189 The interviewees tended to describe either their current problems or events
that had taken place in the last few weeks. Consequently, most of their stories are not
flagrant or unusual examples of deception, but rather are a sampling of their recent
experiences.
190 All but three of the people I asked to participate agreed to be interviewed.
One was prohibited by a partner in her law firm from talking with me for "reasons
having to do with liability." Another was reluctant to reveal possible unethical
conduct because of a concern that the author might be forced to disclose sources. A
third declined because she had had a recent experience in which tapes of witness
interviews had been subpoenaed and misused in court.
191 Prior to the interviews, I sent the subjects letters that offered a list of
examples of types of deception of clients, to offer a starting point for conversation.
The list of examples changed over time as interviewees provided additional examples
of deceptions. During the interview, I asked the subjects whether they had engaged
in or seen deception similar to the listed examples, and then whether they knew of
other types of situations in which lawyers had deceived their clients.
192 J.L. Austin defined justified conduct as that which is "a good thing, or the
right or sensible thing, or a permissible thing to do." Austin, A Pleafor Excuses, in
FREEDOM AND RESPONSIBILITY 6 (H. Morris ed. 1961), quoted in Dressler,Justifications
and Excuses: A Brief Review of the Concepts and the Literature, 33 WAYNE L. REV. 1155,
1161 (1987). Dressler explains that in the context of criminal law, "[t]o say that
conduct is justified is to suggest that something which ordinarily would be
considered wrong or undesirable-i.e., that would constitute 'social harm,'-is, in
 1990] LYING TO CLIENTS

I have reported the stories of deception in detailed narrative

form using the lawyers' own words to the extent possible.19 3 The
intention is to bring the reader closer to the situations described
than would be possible through generalization or through the use of
19 4
hypotheticals.
The interviews suggest that lawyers most frequently deceive
their clients for economic reasons. The economic benefit to the law-
yer from the deception may be direct, as when the lawyer's intention
in deceiving was to obtain income. The benefit also may be indirect,
intended to protect or promote the lawyer's professional reputation
or that of the lawyer's firm. The interview stories are categorized
according to the reason for the deception. 9 5 These categories are:
1) Billing, 2)Bringing in Business, 3) Covering up Mistakes, 4)
Impressing Clients, 5) Convenience and Control of Work Time, and
6) Impressing the Boss.

1. Billing

Nearly all of the lawyers interviewed reported some amount of

deception in practices relating to billing clients. In many instances
the lawyers often failed to keep a running log of their time and esti-
mated the number of hours they worked for their clients. Some

light of the circumstances, socially acceptable or tolerable." Id. (footnote omitted).

In asking the interviewees whether they thought the conduct they described was
justified, I was asking whether they thought the conduct in question was acceptable
because of the circumstances, and if so, what those circumstances were.
193 Some of the lawyers permitted taping of the interviews, in which case the
quotations are from transcripts. (The tapes and transcripts were saved long enough
to check quotations and to allow the editors to verify that the data was gathered
through interviews. They were then destroyed to protect the identity of the sources.)
Some lawyers preferred that I take notes during the interviews. When the notes were
not detailed enough to allow quotation, the lawyers' thoughts are paraphrased.
194 Many authors who have written about lawyer honesty have based their
discussion on hypotheticals. James White, for example, in his article on lying in
negotiation, uses five paradigms of situations in which a lawyer might deceive
another lawyer. See White, supra note 27, at 931-35. Although White probably
developed these examples from someone's practical experience, he presents them in
an abstract, decontextualized fashion. By relating examples directly from the words
of lawyers who were involved in the situations they describe, I attempt to give a more
personalized and immediate view of the way lawyers interact with clients on a daily
basis.
Teaching materials in legal ethics still routinely strip the problems studied of
most of their context. See, e.g., T. MORGAN & R. ROTUNDA, PROBLEMS AND MATERIALS
ON PROFESSIONAL RESPONSIBILITY 61-117, 123-73, 234-337 (3d ed. 1984).
195 Many of the examples presented involved multiple and often complex
reasons for deception. I categorized these based on the most important reason for
the deception.
706 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

attorneys reported that they were too busy to keep detailed records.
As long as any amounts added were trivial, most lawyers felt that
there was nothing wrong with making good faith estimates of hours
or with rounding off hours. Some believed that keeping accurate
track of hours would result in more time billed to the clients. There-
fore, they felt that this practice did not harm clients. If there was no
harm, the lawyers often concluded that there was nothing wrong.

a. Doing Nonessential Work-Running the Meter

Several lawyers reported performing unnecessary work and then

billing for it. This practice is deceptive if the lawyer conceals from
the client what work is being done, or if the lawyer informs the client
about the work but leads the client to believe that it is essential.
Madeline Stein 9 6 characterized the practice this way:
[L]egal research can be more or less thorough, depending on
the amount of money at stake in the litigation. Where the clients
have been willing to pay and where the stakes are high, my experi-
ence is that the firm will leave no stone unturned
97
and engage in
perhaps unnecessary legal background work.'
She suggests that even if a lawyer only bills for hours that she
actually works, she still has a wide range of discretion as to how
much work to do. The lawyer may inflate, or cut, the amount of
work depending on the client's resources.
Winston Hall reported similar practices. "The most common
[type of deception], by far, is makework that the client pays for but
that didn't lead very directly to the result. That describes an enor-
mous percentage of the activity that I think goes on in law
firms."' 198 He described one conversation with a partner in his law
firm, in which the partner explained that "law practice is somewhat
supply-side driven. You can decide how heavily you are going to

196 1 have assigned fictitious names to the interviewees for purposes of

reference. The pseudonyms accurately denote the sex of the speakers. If necessary
to protect a speaker's identity, more than one fictitious name has been used.
197 Letter from Madeline Stein to Lisa Lerman (Sept. 18, 1988) (an associate at
a medium size firm) [hereinafter Stein Letter]. Stein further explained that her
tendency in small or routine cases was to underbill for work done, because "many
individual . . . clients do not understand the value or importance of legal research
and believe the lawyer in routine business litigation should know all the answers."
She seemed to feel that accurate timekeeping in some matters would lead to
questions. In dealing with such clients, Stein repoited that time spent on research
might be reflected on her time sheets as "draft pleading" or "prepare motion for
filing."
198 Interview with Winston Hall (an associate at a large firm) [hereinafter Hall
Interview].
1990] LYING TO CLIENTS

bill on a matter. There is a wide range of acceptability. If you've

got the people, you do more work; if you don't have the people,
then you don't." Hall contends that the problem with this phe-
nomenon is twofold. First, the lawyer has too much discretion. "A
business acquisition can cost anywhere between $20,000 and
$100,000," depending on the lawyer's decisions about how to
approach the work. Second, "the client can't even evaluate how
[the lawyer] exercised that discretion after the fact."' 1 99
Hall offered as an example one situation in which a company
hired his firm and another firm to work on two very similar matters.
His firm "did an exhaustive $100,000job and produced a two-inch
binder filled with memos .... [T]he other firm did a fifteen page
memo that cost about $5,000." The client was "initially kind of
20 0
horrified at the difference."
In explaining how this happened, Hall said, "It had something
to do with [the fact] that the partner [who] had the matter in our
firm felt that he had to get his billings up-thought he had to make
a strong impression on the firm at that point in his career....
[A]nd he had people around [who] . . . could do the work for
20
him." '
Hall described another situation in which the firm was working
on a major lobbying matter for a big industry. "We spent half a mil-
lion dollars tracking this legislation-eight people working on it
essentially full-time." The firm billed this time primarily to two cli-
ents. The firm hoped to attract additional clients in this area, so part
of the work product (reports analyzing the legislation) was sent to
three hundred people. The reports covered many issues that would
have no impact on the clients who were paying for the work.20 2 Hall
thinks that "it was all done without the client knowing that it was

199 Id
200 This is an example of an encouraging development; some clients are getting
more sophisticated about evaluating lawyers. In this case, Hall said they split the
work between two firms as a way of testing the firms. See id.
201 Id. Hall offered another example: one partner asked him to write a memo
for a client corporation explaining an accounting concept that the partner did not
understand. Hall is certain that the representatives of the corporation understood
the concept, did not need the memo, and would have been very angry had they ever
seen the memo (which they did not). Hall said that the partner did not want to admit
that the purpose of the memo was to educate the partner. If the partner had been
more candid, Hall could have explained the matter in half an hour. Instead, he billed
the client for the twenty hours spent writing the memo. At $150 per hour, this task
cost the client $3,000.
202 Hall estimated that about 60% of the material in the reports was useful to
the clients. See id.
708 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

being billed to them." 2 3 Several months into this project, repre-

seritatives of the client companies began coming to the law firm to
work with the lawyers on preparation of testimony and other tasks.
Disaster struck:
It was like a customer going to the kitchen of a restaurant. They
saw eight people running around . . . [who] didn't have carefully
defined ends and means. We didn't know all that they expected us
to know, didn't have the access that they expected us to have....
They just saw what was actually going on and they were utterly hor-
rified. The shit hit the fan and there were lots of fights. Ultimately
we had a reconciliation, and we kept doing the work. But not too
long after that.., they4said enough.., no more ... no more time
20
billed to this matter.
If clients understood the broad scope of the lawyer's discretion,
they might exercise more control over what work was to be done.
Hall elaborates:
The worst clients from the point of view of a lawyer are the ex-
partners from the firm... who know damn well... [that lawyers do
work to run the meter]. One lawyer ... who [left to become gen-
eral counsel of a client bank] would say, "I don't want a single
memo written about this". because he knew exactly what
20 5
happens.
A few of the interviewees reported instances in which lawyers'
pecuniary interests affected the settlement advice they gave to cli-
ents. David Larsen said that many solo practitioners are chronically
short on cash and, consequently, have an added incentive to
encourage settlement in contingent fee cases. 20 6 Larsen described
one situation in which a lawyer (who was representing his client's
adversary) advised a client to settle a personal injury case worth
$100,000 for a meager $4,700 to be paid over four years. The law-

203 Hall explained:

There was always the dilemma of how to bill the tremendous amount of
time that we were putting into this publicity effort, and the partner in
charge had different schemes for how to do it, because initially we weren't
billing the time to these clients. But it was absorbing so much time, and if
it was charged to overhead, the associates wouldn't do the work.
Id.
204 Id.
205 Id.
206Interview with David Larsen (a solo practitioner) [hereinafter Larsen
Interview]. Because he practices alone, Larsen has frequent contact with many other
solo practitioners.
1990] LYING TO CLIENTS

yer, a solo practitioner,

7
had cash flow problems and needed money
20
immediately.
In contrast, large firms that bill by the hour are more likely to
run the meter. Madeline Stein, who worked in two firms in which
most of the clients paid on an hourly basis, said: "From my experi-
ence it was more likely that a lawyer would attempt to deceive a client
into continued litigation, including trial, by inflating the client's
208
chances of success."

b. PaddingBills and Double Billing

One of the most significant types of billing deception reported

was inflating or padding the bills of wealthy clients. Several different
techniques were reported.
Some attorneys reported that the work performed did not
always correspond to the hours billed. Michael Williams, charac-
terizing a widespread attitude in his firm toward wealthy clients, said
"some people in the firm feel like, 'well they are a rich client, they
can pay, we can put a couple more hours down than we worked' ....
20 9
Certainly that's deception, to the tune of tens of thousands."
As to his own billing practices, he explained: "my billing is cer-
tainly influenced by the size and ability of the client to pay. There's
pressure to bill ... at least eight hours a day and I generally bill as
much as I can to the richest client [and underbill] clients who can't
afford standard rates.... It's roughjustice." He also reported that:
There are rough premiums and discounts that are put into the bills
without being disclosed to the client. Not large ones-not like the -

New York firms. But when I settled a case I threw down another six
hours to a small client, thinking that I under-billed them at other
times because they didn't have much money, but I got a good set-
tlement for them. That isn't disclosed.
One lawyer described a law firm in which it was common for the

207 See id. In another contingent fee case, Larsen reported that his co-counsel
had overspent on expenses and then encouraged the client to turn down a
reasonable settlement offer because the resulting fee would not cover those
expenses. The lawyer never told the client about the fact that the lawyer would take a
loss if the client accepted. Larsen felt that the lawyer should have informed the client
about the lawyer's own financial interest so that the client would understand that her
advice was affected by her financial interest.
208 Stein Letter, supra note 197. Stein did not approve of this practice.
209 Interview with Michael Williams (an associate in a large firm) [hereinafter
Williams Interview]. This lawyer said that he sometimes billed a paying client for the
time he worked on a pro bono case, because "it looked better."
710 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

lawyers to bill twenty hours a day, even if they only worked ten
hours.21 0 She said that they boasted about having billed two clients
for the same work, and about the amount of billing that they could
fabricate.
Miles Marcus, an associate at a small litigation firm, reported
one instance in which a partner removed $500 remaining in the trust
account which belonged to a client, and fabricated a record of hours
he alleged that he had worked in order to conceal his conversion.
"He just stole the money." Marcus reported the situation to another
partner in the firm. He didn't know what happened, because he
changed jobs soon after this incident.
Martin Richards, a former paralegal at a large law firm, reported
that he had been ordered by a partner in the law firm to double-bill
his time:
In preparation for litigation and anticipated discovery on behalf of
Client A, I was sent on a trip ... to the client's HQto review docu-
ment files....
Meanwhile, a matter involving Client B was heating up ....
The partner handling the Client B matter was also handling Client
A. He asked that I take some of the [Client B] depositions with me
and digest them while on the road. He also said something to the
effect, "Besides, it will give you something to do on the plane."
Apprising the partner of the firm policy to bill transportation time
to the client (in this case Client A), I asked how I should bill the
time I spent digesting the depositions for Client B. He responded
that I should bill the total transportation time to Client A and the
time spent digesting depositions to Client B. In other words,
double bill....
[L]ater, in similar situations, the senior paralegal in charge of
assignments let it be known that this is how billing was to be
handled. 2 1 '
Richards found this experience somewhat disillusioning, because he
had such respect for the integrity of the partner who gave him these
instructions.
Mary Helen Murphy described one lawyer in her firm who would
write his billing sheets three months after doing the work-without
looking at his calendar. She said he did not need to look at his calen-
dar because he only worked an average of two hours a day, but he
billed twelve to sixteen hours per day. The hours billed usually were

210Interview with Angela Alford.

211Letter from Martin Richards to Lisa Lerman, (December 12, 1989)
[hereinafter Richards Letter].
 LYING TO CLIENTS

split between two clients.2 12 She reported this problem and numer-
ous others21 3 to senior partners in the firm, but nothing was done to
correct the problem. She also noted that the lawyer who was making
up hours "had been threatened that if he didn't get his billing up, he
would be fired."
Murphy spent months trying to get the law firm to pay attention
to the incompetence and fraud that this senior associate was perpe-
trating. At one point he heard that she had been complaining about
him. He came into her office and said:
'You are not going to get away with this. Don't pull things like
that on me.' And he closed the door and he started gesturing...
his face was splotchy ....I said, 'Get out'... . I couldn't open the
door.., he had one fist up at me, and the other on the door.... I
started to scream. One of the senior partners came down and said,
'We'll have to up his dose of lithium again' and then the partner
said to me 'Don't leave your scissor on that side2 of
14
the desk.' That
was their response to what this man had done.
Murphy ultimately resigned from the law firm because of the
unethical conduct that she observed there.
Winston Hall reported pervasive dishonesty about billing at his
firm. "I'm sure people were making up hours, because the totals
were so high.... Like lots of people [were billing] over 2000 hours.
And people weren't at work that often after seven o'clock ... "'
He offered two specific stories about lawyers with whom he worked
at two different law firms who were overtly dishonest about billing.
One of these, whom Hall calls "the fraud,"
would brag about how a client asked him a question, and he knew
the answer, so he wrote the answer in a letter and billed ten hours
for research time. This was a guy who thought the goal was to
work less and bill more hours .... That is a pure case of lying,
cheating and stealing....

212 Interview with Mary Helen Murphy (an associate at a medium-sized firm).
Murphy explained that she worked closely with this lawyer and compared his billing
sheets with the client's bills because of her concerns.
213 See id. Murphy explained that the firm had taken on a major lawsuit that it
was not competent to handle. This same lawyer, who was in charge, did not do any
work. Two and one half years after the case had been filed, Murphy's firm, which
represented the plaintiff, had filed one set of interrogatories and one request for
production of documents. They had eight file cabinets of mostly irrelevant
documents. For two years, the client was billed for reading and analyzing these
documents, when in fact no one at the firm did the work.
214 Id
215 Hall Interview, supra note 198.
712 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

He had his own gauge. If he gave an answer that he knew, he

would think about how much research time... [the answer]2 16
repre-
sented [having done no actual research] and bill for it.
Hall's second story reinforces the impression that lawyers some-
times overbill rich clients. Hall explains:
I worked on a project for a very rich [Asian] .... to set up a very
simple trust. We billed way over the amount that was indicated on
the billing sheet .... The partner came into my office and said
'This guy, Mr. so and so, is bitching about the bill. I hate when
they do that.' And I said, well, what did you bill him?' and he told
me the amount,. . . and I said, 'that does sound like a lot for the
little bit of work we did on this, It's just a little trust.' And he said,
'yeah, but these people are so rich, and besides, so and so at
whatever investment bank wants to send them a big bill too, so I
couldn't send them a small bill.'
That's outright fraud .... and it's not racism, but... [The atti-
tude is] they've got so much money in these countries2 17
where there
is nothing to buy, they might as well give it to me.
When asked why the lawyer cared about keeping the bills high to
avoid a dispute with the bank, Hall explained that it was "Because we
wanted that investment bank to send us more business. We couldn't
piss them off by charging too little to their clients." 2' 1 8
Another lawyer listed several reasons why padding of wealthy
clients' bills is so common: (1) they can afford it, (2) one does so
much work for them that it is easy to lose track, (3) padding is
unlikely to be noticed because the bills are so large, (4) small clients
have no money, and to keep hours up lawyers must bill the time to
someone (which seems fair from a "Robin Hood" perspective), and
(6) eventually the work done for one client is used for another.
David Larsen said he pads his bills to his clients to cover some
related pro bono work. He does work for some states and for a non-
profit group to which the state agencies belong. The state agency
representatives have agreed (but have not told their superiors) that
he should "fluff" his bills to the states to cover the work for the
organization, thus subsidizing the organization. The "client"
deceived by this practice is not the official who deals directly with the
attorney, but the agency that employs the representative. The lawyer
thinks that this practice is justifiable both because "the state benefits

216 Id.
217 Id.
218 Id.
1990] LYING TO CLIENTS

by it," and because he feels that his "client" is the person he is deal-
2 19
ing with rather than the agency.
Most of the lawyers interviewed reported some relationship
between the affluence of the client and their billing practices. Some
mentioned that they were less scrupulous in recording hours worked
for clients who were on retainer, 2 20 while others reported that they
were likely to round up their estimated hours if they knew the client
could afford it. 22 1 Many of the lawyers interviewed mentioned that
they often under-billed clients who were friends or who were not in a
2 22
position to pay large legal fees.

c. Meeting Minimum Firm Hours Requirements

Attorneys in many large, urban law firms are expected to bill up

to 2500 hours a year. 223 Consequently, they may bill hours that they
have not worked.
Winston Hall said that his firm never established an explicit bill-
ing minimum. "The partners would say 1700 hours would be fine,
which actually I thought was quite high.... The general impression
that no partner ever tried to change [,however] was that 2000-2100
4 22
was expected.,
Deborah Greenberg said that at her firm "the minimum for asso-
ciates is 1700-1800 per year, or about 35 hours a week, not including
administrative time and pro bono time. 1700-1800 used to be a tar-
get. Now it is a minimum." 2 25 Although some lawyers inflated their

219 See Larsen Interview, supra note 206.

220 See, e.g., Interview with Beth Forrester [hereinafter Forrester Interview].
221 See, e.g., Interview with Arthur Katz (an associate at a medium-size firm)
[hereinafter Katz Interview]; Interview with Deborah Greenberg (an associate at a
large firm) [hereinafter Greenberg Interview].
222 Beth Forrester reported, for example: "I have occasionally... cut my time
when I know the client can't afford it, which is not technically mine to do." Forrester
Interview, supra note 220. Deborah Greenberg also reported this type of practice.
See Greenberg Interview, supra note 221.
223 At the most demanding firms, lawyers in 1988 averaged 2500 billable hours
per year (an increase from 2210 in 1982). In 1987, the median number of hours that
associates billed per year at firms with over seventy-five lawyers was 1850. See
Marcotte, Hours Way Up, A.B.A.J., Dec. 1, 1988, at 18.
224 Hall Interview, supra note 198. He also reported that his firm discouraged
pro bono time and bar association work "because they didn't get paid for it." When I
asked him how the partners communicated this message, he reported a specific
discussion with a partner. He told the partner that he expected to spend about ten
percent of his own time doing pro bono work, and the partner said "Where did you
get that figure? I don't know how you feel about spending time with your family, but
it seems to me that you can't do everything."
225 Greenberg Interview, supra note 221. This number of hours, which the
714 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

hours to satisfy their firms' unreasonable demands,2 2 6 Alison Price,

who works for a smaller firm, reported that she did not have enough
work to bill the requisite number of hours. "The problem is that they
want these many hours, and you're looking for work to do, and there
'2 2 7
is no work to do. You have to fudge.

d. Premium Billing and Itemization

Winston Hall2 2 8 explained that although many firms bill their

clients by the hour, "premium billing"-adding substantial sums to
the bills based on a subjective determination of the value of the
work-is the latest innovation.2 2 9 Hall elaborates:
The trend now in law firms is this concept of premium billing.
Lawyers are on a feeding frenzy, and they are trying to figure out
new ways to make money. So they pump up the hours of associ-
ates. There's got to be a limit to that; somewhere around 3000
hours, people start to die off.
Billing rates are announced, and there are limits to how much
you can charge. My guess is that my firm has increased 70-80 per-
cent in 3-4 years, but I'm not sure .... When [lawyers] do a spe-
cially good job they want to bill extra money. Sometimes they tell
clients that, and sometimes they don't.... It started in New York;
Wachtel and Skadden invented it, and it has caught on in a big
way.... Our firm tries to do it to the extent that they can....
Because that system [premium billing] has no apparent limits
on money, it gets them tremendously excited ....20 this is how the
firm is going to average, instead of half a million dollars a year, a
million dollars a year per partner, by this premium billing. 23 1 And

associate felt was stressful and demanding, is low to moderate compared to other
large firms. See Marcotte, supra note 223, at 18.
226 See, e.g., Williams Interview, supra note 209; Katz Interview, supra note 221;
Greenberg Interview, supra note 221.
227 Interview with Alison Price (an associate in a small firm) [hereinafter Price
Interview].
228 Hall Interview, supra note 198.
229 But see Ray & Levine, In House Counsel Reect Value Billing, NAT'L L. J., Nov. 20,
1989, at S2 (suggesting that value billing "heralded as . . . a new wave in legal
economics" has been overrated, and reporting a survey indicating that many
corporate clients prefer hourly billing).
230 See Herztberg & Stewart, Contingency Legal Feefor Merger Breaks Ground, Stirs
Controversy, Wall St.J., Oct. 24, 1986, § 1, at 31, col. 4 (quoting one takeover lawyer
explaining the emergence of the performance fee by saying: "We work harder and
do more work than the investment bankers, and then they walk away with millions. I
think it just got to the point where some lawyers couldn't stand the unfairness of it
anymore")
231 Average incomes of partners in the New York office of Skadden, Arps, Slate,
1990] LYING TO CLIENTS

then they point to investment bankers and say, investment bankers

bill this way, why shouldn't we, we are smarter and we work
harder....
This is using hours as a minimum, and taking further advan-
tage of the information imbalances.... What it is moving toward is
a vague notion of taking a larger share of the profits you earn for a
client, but it is really taking advantage of the information
unfairness.
Lawyers may be less than precise in billing practices with relative
confidence that no one will ask too many embarrassing questions
because the content of bills sent to clients offers little information on
which to base questions. The lawyers know little or nothing about
the actual billing, but they know the conventions -regarding billing in
the firm from other lawyers. They know something about what other
lawyers get away with. 23 2 In contrast to the lawyers, billing
paralegal Gordon Foster 233 spent all his time writing bills to clients.
The bills he prepared for major clients (which ranged from $50,000
to $120,000 per month) generally began with the line "For profes-
sional services rendered, including. . ." and then included between
several paragraphs and three pages of "cryptic narrative" explaining
the tasks that lawyers and paralegals performed. The narratives
came directly from the lawyers' and paralegals'2 " 4 billing sheets and
were separated by semicolons. The narratives concluded with a total
charge for legal services. This was followed by an itemized list of
charges for copying, word processing, overtime, postage, travel, and
production of documents.
The bills usually did not specify who performed each task, how
23 5
long it took, or at what rate paralegals and attorneys were billing.
In addition, Foster explained, the bills concealed the firm's multi-
plier: the firm multiplied every subtotal (lawyers' hourly rate X

Meagher & Flom were reported in 1989 to be $1,100,000. See The Wages of Law, N.Y.
Times, March 24, 1989, at B6, col. 3. Partners' incomes have risen dramatically in
recent years. In 1985, Cravath, Swaine & Moore had profits per partner of $635,000.
Three years later, this figure had increased to $1.2 million. See Brill, supra note 58, at
14.
232 See supra text accompanying note 209.
233 Interview with Gordon Foster (paralegal) [hereinafter Foster Interview].
234 Paralegal time was billed at $50 per hour.
235 Foster even billed for the time he spent preparing the bills, as did other
paralegals. Consequently, clients often unknowingly paid $600-700 for the
preparation of each bill. A few clients, usually trade associations, requested and
received computer printouts showing who billed how much time for what work. The
firm provided this information only if a client specifically requested it.
716 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

number of hours worked) by about 1.5. 2 36 The bill did not list this
multiplier even though the total reflected it. Foster indicated that
clients who asked for explanations of their bills were given the law-
yer's rate including the multiplier. As a result, a lawyer whose regu-
lar rate was $150 would be reported to be billing at $225.237
Foster reported that partners told new lawyers and paralegals to
keep complete records of their hours and assured them that if, in
reviewing the bills, the partners thought the time was excessive they
would cut the bills. Partners, however, "never cut the time. Usually
the attorney signed right off on the bill. Often they didn't even look
at the daily time sheets, but just made sure that the narrative was
23 8
correct."
Foster noted that the monthly bills to particular categories of
major clients were consistent in amount. Major New York brokerage
houses were billed between $80,000 and $120,000 per month, while
industrial firms were billed at between $50,000 and $90,000 per
month. Given the size of these bills, one might wonder why clients
rarely question bills. Winston Hall 239 indicated that most represent-
atives of corporations do not seem to care about size of legal fees;
the corporation simply passes the cost on to those who buy its prod-
uct. The individual approving the bill is unaffected. Foster noted a
striking contrast between large corporations and trade associations
whose representatives were much more concerned about the amount
of the bills. He suggested that in a trade association, the person
signing off on the bill is responsible for controlling the association's
budget.

e. Estimating Hours-Non-ContemporaneousRecords

Failure to keep precise records of work time was perhaps the

most prevalent deceptive billing practice among the lawyers whom I
interviewed. Only one lawyer reported that he meticulously records
his hours as he works, making a note each time he moves from one

236 Sometimes the multiplier was 1.4, or, "if they had a slow month, they would
use 1.6." For trade associations, the multiplier was 1.2. Foster did not know what
costs this multiplier included.
237 This is problematic: if the client was informed at the outset of the
representation that he or she would be billed at a particular hourly rate, and the
multiplier varied from month to month, the lawyer would be billing at different rates
from that disclosed initially.
238 Foster Interview, supra note 233. Foster mentioned that one partner
carefully checked each of the bills that he was responsible for against the daily time
sheets, but said that none of the other partners did that.
239 Hall Interview, supra note 198.
1990] LYING TO CLIENTS

matter to the next.2 4 ° The other lawyers reported varying degrees of

imprecision in their billing practices. Andy Baird writes down his
hours at the end of each day, estimating the amount of time he
devoted to each matter.2 4 He thought his estimates might be off by
fifteen minutes or so. 2 4 2 He felt that devoting more attention to bill-
ing would detract from his other work.
Arthur Katz similarly reported that "small amounts of time often
get fudged," but he feels less comfortable with his practice of esti-
mating hours. He said "I feel guilty about not keeping much more
accurate time ....If I were a client I wouldn't like it." Katz said he
sometimes forgets the number of hours he worked: "[I]f... I can't
remember whether that was really ten hours or twelve hours, I would
err on the side of twelve hours, if I figure the dient can afford it."
Michael Williams reported a wider variation in his billing practices:
"Now I . . .[record hours] every day or every few days. But there
were times I'd do it once a month and I'd say 'Well I spent half this
month on [a big client-] . . .one hundred hours.'"243

f. Explaining the Bills

When a client challenges a bill that is not entirely accurate, the

lawyer often buttresses one lie with another. Alison Price 24 4 said
that in her firm, when a client questioned a bill, the lawyer who had
billed the hours would review the bill with the client and explain
24
it. 1 She described these conversations as follows:

The client calls up and ...ask[s] about [the] bill, and you are
saying, "Oh, yeah, on 1/26/88 1spend x amount of time," and you
go through as if you had kept to the minute time records when in
fact each week you've been fudging on them and padding them
because you were required to have eighteen to twenty-two hundred
billable hours [per year] .... This is so common. I have many
friends working in large firms-it is the practice.
Price said that a partner once asked her to attend a meeting in

240 Interview with Frank Copeland (a partner in a small firm with a primarily
domestic relations practice) [hereinafter Copeland Interview].
241 Interview with Andy Baird (an associate at a medium-size firm) [hereinafter
Baird Interview].
242 Arthur Katz made a similar estimate of his margin of error. He believed his
time records might be off by between fifteen minutes and half an hour. See Katz
Interview, supra note 221.
243 Williams Interview, supra note 209.
244 Price Interview, supra note 227.
245 In some firms, all billing questions are handled by the partner in charge of
reviewing bills.
718 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

which the partner knew that the client was going to inquire about a
particular bill. The partner did not give her enough information to
answer the questions. She believes that the partner in charge wished
to cloak the firm's practices by offering the client incomplete
answers:
I was at a dinner for.., an association... to give them a rundown
on a recent filing that we had done .... After I finished talking
about the filing ... a treasurer says in front of... thirty men [rep-
resenting the client organization] at this long table .... "could you
explain this last bill that we received from your firm?" . . . What I
didn't realize is that the partner I worked for knew that they were
going to ask that question and that was why he had sent me .... He
[the partner] hadsort of given me the rundown: "Well we charged
five thousand for this.. ." I had jotted it down but I didn't think it
was important ... so I said "I know that you ... have been-billed
for the first two phases [of the project] .... " I said I would have to
go back to the records.
The client had retained the firm on two different matters. The
actual problem with the bill, Price later discovered, was that the firm
had exhausted the amount allocated to one project sooner than
expected. The firm was billing the excess time on the first project to
the second.
Aside from the duplicitous interaction with the client, this inci-
dent suggests that when this firm deceived this client it manipulated
an associate as well:
It was lack of candor to me and lack of candor to the client ....
If you are going to try and slip something by someone, a lot of
times it is easier to have someone else do it than to do it yourself
.... And I am blond-haired, blue-eyed, freckles, sound competent
and honest when I speak [so was an obvious choice for the job].

g. Charging Clients for Perks, Leisure, and Administrative Time

Some lawyers indicated that they billed clients for time spent on
nonlegal activities, or for expenses that were not necessary to the
particular client's matter. The attorneys interviewed knew little
about their clients' expectations oi understanding of these billing
practices. Generally, each attorney resolved doubts about what to bill
alone, without consulting supervisors or clients. Arthur Katz
described one recurring dilemma:
I [often went] to New York for a big institution up there, and I
never really knew, should I really bill them for the time on the air-
1990] LYING TO CLIENTS

plane, you know if I was reading a book or something like that.2 46

I
billed them anyway. I'd say, "heck, these guys can afford it."
Alison Price reported that while working for a firm, "I took a cab
home every night and it was charged to the client. If I worked a
minute after eight, they bought me dinner .... I don't think the
clients were advised of [this practice]. 24 7
Marginally justifiable activities raise two vexing issues: whether
lawyers legitimately can bill for such activities and, if so, how to
describe them to the client. Madeline Stein explained:
After days of working nearly non-stop on a large case for a
large corporate client, the.., entire office becomes inundated with
documents, drafts of pleadings, xeroxed cases, and notes. Clean-
ing up becomes imperative, and most of it involves sorting, filing
and throwing away, with no more thought involved than the discre-
tion of one who is intimately involved with the case. An hour
passes, and the job is done. Where did the hour go? Is it billable?
If so, does one write "straighten office" on the billing sheet?
I would most normally bill the time, perhaps discounting it a
bit for sorting other client's papers and for the nature of the work.
But I would not let the client or the billing partner know I was
billing for cleaning my office-it just doesn't sound right. And
besides, it is necessary work that must be done for proper case
management.., by the person who created the mess .... So I bill
it to "case management" or "legal research" or "draft pleadings,"
depending on the occupation that created the mess in the first
place .... If billing in this way is either padding or deceptive, I
never thought of it as such.24 8
Winston Hall confessed that he did not spend all of the time he
billed performing identifiable legal tasks:
At the beginning I tried to correct for inefficiency, and then I real-
ized it wasn't helping me, it wasn't helping anybody, and it proba-
bly wasn't consistent with industry practice .... In an eight-hour
day there'd be a lot of daydreaming. Or walking in the halls, or
getting coffee. I billed a lot of that time, because otherwise I'd
either get divorced or get fired because I'd come in with two hours
billed....
I think that was in the range of legitimate real world problems,

246 Katz Interview, supra note 221.

247 Price Interview, supra note 227.
248 Stein Letter, supra note 197.
720 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

how to define work, it's never going to be actual reading and writ-
24 9
ing time.

h. The Impact of Client Confrontation

Most clients do not ask for detailed explanations of their bills; if

a bill appears reasonable clients usually pay without question, even
though they are unhappy that legal fees are so high.2 50 Clients who
do ask lawyers to go over their bills might be deterred from sug-
gesting that the lawyers did not actually work all of the hours billed
because the clients probably have little or no information to substan-
tiate such claims and because such a challenge would amount to
accusing the lawyers of lying.
Lawyer billing practices might be more precise if clients scruti-
nized bills and questioned them more frequently. Arthur Katz recal-
led one instance in which the client was a lawyer who inquired about
billing practices more freely than did most non-lawyer clients:
I went to a client's office at 8:30 this morning .... I had lunch
with [a client's] in-house counsel and he asked, "By the way, what
are your billing rates?", and I told him [$125 per hour] and he said
"Oh my God- you better not bill me for this lunch".... I said "I
won't bill you for lunch and I won't even bill you for the ride
home" and he said "Oh you can bill me for the drive home...."
He was saying it jokingly . . . [but] I'm sure he doesn't want me
25 1
to.
Katz implied that if the client had not asked, he would have
billed him for all the time he spent with the client, including lunch
and transportation time. 25 2 He suggested that direct confrontation
about his rate and about whether he would bill for lunch caused him
to promise the client that the bill would include only time spent
doing legal work.2 53

249 Hall Interview, supra note 198.

250 See, e.g., Steele & Nimmer, supra note 80, at 957-60 (discussing clients'
general inaction when displeased with fees charged and other aspects of attorney
behavior).
251 Katz Interview, supra note 221.
252 As Katz was telling the story, he remembered that he had spent fifteen
minutes while at this client's office on the telephone with another client, and he said
"so if I'm careful about it, now that I'm sitting here talking to you.., tomorrow I'll
calculate fifteen minutes there." His participation in the interview (as with many of
the other lawyers interviewed) seemed to bring to the surface practices about which
he ordinarily would not think twice, and to cause him to resolve to be more careful in
keeping track of time.
2-53 This example illustrates what Rosenthal observed to be the overall positive
1990] LYING TO CLIENTS

2. Bringing in Business

a. Exaggeration of Expertise

Several interviewees reported instances in which they or others

overstated the experience or expertise of the firm in a particular area
of law. Many lawyers do not consider what they characterize as "puf-
fing" to be lying; they espouse a "macho philosophy" that they "can
learn anything in a week, ' 25 4 and therefore, that any representations
they make about expertise will be true in a negligible amount of
time. Puffing does not harm clients, they argue, because usually they
do not bill clients for time spent learning new law, or "study
time." 2 55
Whether a lawyer actually bills the client for study time, how-
ever, often "depends on the file."'256 Claude Adams explained that,
"[for a] big client, we would [bill for study time]. [For] other clients
we would write it off for a while, and maybe if it expands into a big-
2 57
ger client, bill it progressively later on."
Lawyers also engage in puffing by being intentionally vague
about their actual experience. Adams explained:
I would regard [it] as routine practice of business develop-
ment, if you have.., any experience in an area, to call it expertise
....I tend to think that standards have broken down a lot in that
area. When we talk to a client [about a particular area of law] we
tell them we know ...[the area], meaning I have now gone to two
meetings.
Andy Baird reported that lawyers in his firm sometimes tell cli-
ents that they have done work in the general area in which the clients

impact of clients' active participation in their representation. See D. ROSENTHAL, supra

note 22, at 168-77.
If client scrutiny can chill lawyer deception, then the Disciplinary Rules should
provide for scrutiny of lawyer conduct in areas such as billing in which deception is
common. The rules cannot require clients to scrutinize their attorneys, but can
require lawyers to make specific disclosures, to scrutinize each other, see infra text
accompanying notes 360-85, or could provide that regulatory officials must scrutinize
lawyers. The last approach could include an audit requirement such as that imposed
on British solicitors, who must submit a certificate from an accountant each year
showing that they have taken proper care of their clients' funds. See Morgan, supra
note 48, at 731.
254 Interview with Claude Adams (an associate at a large law firm) [hereinafter
Adams Interview]. Adams explained that this philosophy was prevalent among his
colleagues; he was critical of this view.
255 Larsen Interview, supra note 206.
256 Adams Interview, supra note 254.
257 Id.
722 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

need service, but do not fully disclose the limits of their experience.
They might fail to mention, for example, that the firm has never been
involved in the type of hearing that a client is facing. 258 David Lar-
sen said he occasionally presents some limited previous experience
as "significant" work in that area, but that he would never invent a
particular number of cases that he had handled in an area. 25 9 He
justified this practice of overstating his past experience, stating "I
have to make a living .... I can learn to do anything."
Some lawyers deceive clients about the extent of their profes-
sional contacts or access to influential people. Claude Adams, for
example, said:
I have exaggerated and other... [administrative] lawyers have
exaggerated... the extent to which we know certain ... heads of
agencies. I talked once or maybe twice to the head of ... [one
branch of a federal agency], but as far as any client knows, he is my
best friend and nobody [would] dare call him directly without
26 0
going through me.

Some lawyers reported that they failed to offer clients complete

information about their expertise, or failed to correct incorrect
impressions that the clients had developed about the lawyers' experi-
ence. This is deception by inaction or omission.
One associate I interviewed expressed the opinion that partners
frequently puff their own experience because they have "an inflated
sense of [their] own importance." 2 6 ' Andy Baird described certain
partners as revelling "in the image that they are [experts] in this
area." 26 2 In contrast, George Brenner said he was much more prone

258 See Baird Interview, supra note 241.

259 See Larsen Interview, supra note 206.
260 Adams Interview, supra note 254. In evaluating this practice, Adams was
critical of his own conduct and of the professional community in which he works.
That is deceptive and that bothers me. On the other hand, it really
seems like standard operating practice ... to boast about ... contacts. I
guess where I draw the line is between a complete lie and an exaggeration
.... If you have met them once then.., he or she can be your best friend.
Id.
261 Forrester Interview, supra note 220. Forrester was commenting on a
situation in which a partner told a client that he personally knew a sub-specialty that
he did not know but that others in the firm did know. She speculated that he might
have thought that the client would only come to the firm if he personally represented
them, and therefore found it necessary to exaggerate his personal knowledge of the
law.
262 Baird Interview, supra note 241. Baird made this remark about a partner
who walked into a meeting with a prospective client who was seeking services in the
area of computer piracy, about which the partner knew very little. Nevertheless, the
1990] LYING TO CLIENTS

to exaggerate his knowledge when he first started practice, because

he "didn't know much about any area." He said that as he gained
competency in some areas, he felt more comfortable admitting igno-
rance in others.2 6 3 Alison Price suggested that lawyers exaggerate
their knowledge most frequently in areas that call for technical
264
expertise in nonlegal areas, such as antitrust or economics.
David Larsen stated that one of his clients thinks he is an exper-
ienced trial lawyer, when in fact he has never taken a case to trial.
Larsen is unsure how the client got this impression. "I've never said
so, but I've never said I haven't." He does not believe the client
would fire him if he learned that his impression was incorrect, but
2 65
Larsen feels that the client would lose confidence in him.
Arthur Katz said that he feels uneasy knowing that "any matter I
handle for a client could be much better handled by somebody with
five years more experience than ...[I have]." He felt, however, that
ultimately, the problem was not his:
I don't usually make a point of saying.., to clients... "Look, we
could have a seventh-year associate handle this ...[who] will do a
betterjob than... [I can]." That's not puffing--they get what they
pay for, basically ....My assignments come from the senior part-
ners . . . . I'm not going to second guess the partner's
2 66
judgment.
Most of the lawyers who admitted that they exaggerate their
expertise were comfortable with the practice, as long as their repre-
sentations were not flagrantly deceptive. Many viewed the salient
issue as whether the lawyer would provide quality service. The law-
yers did not feel compelled to advertise their lack of specialized
experience as long as they could do the work. No one expressed the
view that the client should be the one to judge the adequacy of the
lawyer's experience.

partner gave an "off-the-cuff" opinion, without any caveat that more research was
needed. Baird felt this degree of puffery was unnecessary: "The partner was too
concerned about wanting to make sure that there was no indication that we were
amateurs .... But I can't see practicing without creating an image of competence."
Id.
263 Interview with George Brenner (a former partner in a small firm)
[hereinafter Brenner Interview].
264 See Price Interview, supra note 227.
265 See Larsen Interview, supra note 206.
266 Katz Interview, supra note 221.
724 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

b. Business Development

Numerous examples of deception emerged in the area of busi-

ness development, specifically, in situations in which lawyers were
giving advice about what additional legal work their clients needed,
and inviting their clients to hire them for new matters.2 67 The attor-
neys interviewed reported that lawyers sometimes recommend work
that will benefit clients only marginally, but which promises signifi-
cant pecuniary gains for the lawyers.
Alison Price, for example, recounted that other lawyers in her
firm were often heard saying to clients: "Listen, I think you ought to
get involved with this." (Suggesting that the client hire the firm to
intervene in a case or file comments in an administrative proceed-
ing.) Price thought that this was good advice about half of the time.
Explaining that her firm represents numerous clients with simi-
lar interests, she reported one incident in which an agency had
requested comments on a proposed rule. One lawyer in the firm said
"Let's see if we can get [them all] ...involved in this. We can charge
them each $1000, we can file one comment, and everybody concurs."
She noted one recent proceeding in which 5000 comments were
filed, and speculated that much of what is filed is never even read by
2 68
any government officials.
Claude Adams discussed pressures within his firm to encourage
clients to authorize the firm to file comments on proposed agency
rules, even when client interest was tenuous. As to one such incident,
he explained:
It seemed a waste of my client's time [to file comments on this

267 In general, one cannot approach prospective clients in person or by

telephone and suggest legal work if a significant motivation is financial gain. (If the
work is for a public purpose, or if the communication is in writing, the restrictions are
fewer.) See MODEL RULE 7.3 and comment; S.GILLERS & R.SIMON, supra note 100, at
168. Model Rule 7.3 was amended by the ABA in February, 1989 after the Supreme
Court found some of the restrictions in the old rule to violate the fifst amendment.
See Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988). Once a client has retained a
lawyer for one purpose, however, the lawyer may advise the client of other work that
the lawyer could do for the client. Model Rule 7.3 exempts from its prohibition on
solicitation any prospective client with whom the lawyer has a "prior professional
relationship." MODEL RULE 7.3 and comment 4; see also MODEL RULES, Preamble
(stating that "as advisor, a lawyer provides a client with an informed understanding
of the client's legal rights and obligations and explains their practical implications,"
and also that "a lawyer acts as evaluator by examining a client's legal affairs and
reporting about them to the client or to others"); MODEL RULE 2.1 comment, Offering
Advice (stating that "a lawyer may initiate advice to a client when doing so appears to
be in the client's interest").
268 See Price Interview, supra note 227.
1990) LYING TO CLIENTS

rule] . . . but I had enormous pressure from the partner to put

together a letter to them [proposing that we do the work] .... It is
unlikely that . . . a neutral letter would be approved by our firm
would
.... If you could find a glimmer of interest, you 26 9
state that
... the future of the corporation depended on it.
Adams acknowledged that the practice was deceptive, but urged that
it was "fair business development that everybody understands." He
pointed out that most of his firm's clients are corporations, and
therefore the contact person is usually the client's general counsel.
He felt that in-house counsel are quite sophisticated and realize that
firms are always trying to get more business. Therefore, although
the intent of this practice is deceptive (in that the firm attempts to
convince clients that certain work will benefit them, when in fact it
may not), Adams argued that the practice is justifiable because letters
2 70
of suggestion usually do not actually deceive clients.

3. Covering Up Mistakes

One of the most common reasons that lawyers deceive clients is

to avoid having to disclose their mistakes. Once a lawyer has gained
a client's respect and confidence, disclosure of an error becomes less
likely to sour future business with the client or to taint the client's
opinion of the lawyer. However, many lawyer-client relationships
are tenuous; if the relationship is new, and the client learns that the
lawyer made a mistake, the client may lose faith in the lawyer.
The lawyers I interviewed offered a wide range of errors that
they or other lawyers had concealed. Many of the errors that the
interviewees covered up fall into the category of general neglect.
They include such conduct as failing to contact the client in a timely
fashion, procrastinating in finishing work, or doing mediocre work.
Even though these do not involve a specific legal error, clients would
find such conduct troubling.
Many lawyers do not return phone calls to clients quickly. At
one end of the spectrum, some lawyers have huge caseloads and
stacks of unanswered messages on their desks, and constantly make

269 Adams Interview, supra note 254.

270 See id. This justification is similar to that often offered for deception in
negotiation. Lawyers often misrepresent to one another their clients' willingness to
settle, or their bottom lines. Many argue that this practice is not really deceptive
because all the lawyers know that other lawyers do this, and therefore, do not take the
deceptive factual assertions as factual, but as statements of present position. See
White, supra note 27, at 926-27; MODEL RULE 4.1 comment 2, Statements offact; supra
text accompanying note 98.
726 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

excuses for not getting in touch with their clients. 2 7 ' Even the most
conscientious lawyers occasionally fail to respond to calls in a timely
2 72
fashion, but they often feel distressed about neglecting to do SO.
The lawyers I interviewed tended to avoid telling their clients about
delay or neglect, and to blame these problems on someone else if the
27 3
clients did find OUt.
Many lawyers felt that it is all right to deceive clients about their
progress on work as long as they finish in a timely fashion and the
2 74
clients do not suffer any harm.
Carol Morgan voiced the commonly expressed opinion that if
you assure a client that you are almost finished with a task "then you
will do it." She qualified her statement, however, by saying, "I won't
make that representation unless I can deliver in a short time. "275 In
this context, a small misrepresentation benefits the client, urged
Morgan, because, having told the client the work is almost finished,
the lawyer must complete it right away. She asserted that the client
feels better if deceived than if he or she knew that the piece of work
was at the bottom of the in-box, saying:
All clients think that their problem is the most important. They
don't want to know that they are not top priority. But that is real-
ity; things that have court deadlines come first. You wouldn't keep

271 Interview with Heather Thomas (a law clerk in a two lawyer firm) (describing
the conduct of one of the lawyers) [hereinafter Thomas Interview].
272 Andy Baird reported that "Once I got stuck in a spot where I should have
gotten a hold of a client sooner ... We spoke to opposing counsel and then didn't
get back to the client the next day and they called me before I got to them, and I
think I told them I tried calling." Baird Interview, supra note 241. The client blamed
his own message system. In evaluating his own conduct, Baird was disapproving.
"It's a lie. I was on the spot and I didn't think quick enough ....They were upset
that they hadn't gotten the call, and my reaction was improper." He felt that had he
taken a moment to think, he would have dealt with the client's distress in a non-
deceptive manner. See Id.
273 See, e.g., Katz Interview, supra note 221. He said he always tried to cover up
errors. If his failure to order a title report soon enough delayed a transaction, he said
he would blame it on someone else. He commented that he felt that with more
experience, he would have less need for deception and he noted that the partners in
his firm were more comfortable admitting their mistakes.
274 Alison Price explained that "to make clients feel more satisfied that
something's almost completed, I have been told to say, ... 'you can expect an answer
in a week and a half,' when in fact we haven't done anything." Price Interview, supra
note 227. She feels that other lawyers in her firm use her as an intermediary because
"the person doesn't know me on the other end. They are not going to ask me a lot
more questions .... They will just say 'okay fine.'" Id.
275 Interview with Carol Morgan (a partner in a very small firm) [hereinafter
Morgan Interview].
1990] LYING TO CLIENTS

your clients if you told them [that their work was not given top
priority]. Very few clients really understand law practice.
Claude Adams recalled one instance in which he withheld docu-
ments from a client so that they would not realize that his work had
been mediocre:
I wrote comments for an... [administrative] proceeding that
weren't great. I never really had the time .... I was sending things
on to clients that were submitted by other parties ... and there
were three or four people that just did an outstanding job .... I
2 76
didn't send those to the client.
The more serious the error or oversight, the greater the incen-
tive to conceal it. Andrew Carpenter, who was in-house counsel to a
corporation, had to review some advertising prior to publication.
One of the ads stated the results of empirical research in a manner
that arguably was deceptive.2 7 7 The lawyer explained: "They were
in my in-box and I looked at them and I said, 'Oh shit, I can't do this,
I can't approve it, I can't deal with it.' . . . I never approved it or
disapproved it. When somebody asked had I reviewed it, I said
'no.' " The lawyer was seriously troubled by the whole situation, and
by his own response to it:
It just seems normal in a corporation that when the shit hits the fan
everybody ducks .... When something goes wrong, nobody ever
saw the document and nobody ever approved it.
I think it was wrong because it was not assuming responsibility.
What I am having trouble with 2is78would I do it again under those
circumstances? ... Maybe yes.
Other errors that the interviewees discussed include missing
deadlines in litigation, sending memoranda to clients that contain
errors in law or fact, sending a client a document that should have
gone to someone else, and revealing client confidences. Some law-
yers believe that if the errors can be fixed they need not tell the client
about them. Frank Copeland told a story about one instance in

276 Adams Interview, supra note 254. In this proceeding many parties with
similar interests had filed comments, so that the client might have compared Adams'
submission with those of other parties.
277 Interview with Andrew Carpenter (in-house counsel to a corporation)
[hereinafter Carpenter interview].
278 Id. Note that this is deception by omission rather than by commission. See
text accompanying notes 8-9 for a discussion of this issue. Carpenter explained that
in the corporation there was a great deal of pressure on the lawyers to say yes to
business proposals, and that he risked losing the trust and appreciation of his
employer if he were too much of a policeman.
728 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

which he missed a deadline on an answer to a motion. He filed and

argued a motion for extension of time and won, but did not report
any of those events to the client. He felt that this nondisclosure was
appropriate and necessary in this situation. "If you tell the client,
the client will panic, and might fire you .... In a divorce case, the
client might go off the deep end .... Half of the job is keeping [an]
agitated clientele happy." 2' 7 9 He explained that non-lawyers tend
not to understand that judges rarely throw cases out on technicali-
ties. He seemed to feel that he had an affirmative duty to protect his
clients from worrying about matters that were not worrisome. Cope-
land also pointed out that if he makes an error, he never bills the
280
client for time spent correcting the error.
Occasionally, a judge does dismiss a case on technical grounds.
Carol Morgan found herself in one of these exceptional cases. She
was late to a status conference scheduled for a Monday morning at
ten-thirty. She left her office keys at home; by the time she went
home, returned to the office and checked her calendar, it was after
ten-thirty. She thought the status conference was set for Tuesday,
and the judge thought the scheduled time on Monday was at ten. By
the time Morgan reached the judge's office, the judge had dismissed
the case. She wrote a letter to the judge apologizing, and at the time
of the interview planned to file a motion to vacate the dismissal. So
far, she has not reported any of these events to the client and will do
so only if she loses the motion. Morgan explained: "If I told the
client, the client would get hysterical. I am reasonably confident that
28 1
I will get it straightened OUt.
Beth Forrester told of one incident. Before she began working
at her law firm, the firm did a statistical analysis for a client of its
equal employment opportunity status and used the wrong statistics,
"with the result that the client looked to be in a better position than
the client was in." She discovered this problem and went to one of
the partners to suggest that they inform the client. This partner, who
had not done the original work but had reviewed it, "didn't catch it
and he probably should have," commented Forrester. The partner
told her "in so many words" not to tell the client about the error, but
to send them a correct analysis of this year's statistics.28 2
Forrester was not pleased with this resolution, but deferred to

279 Copeland Interview, supra note 240.

280 See id.
281 Morgan Interview, supra note 275.
282 Forrester Interview, supra note 220.
1990] LYING TO CLIENTS

the partner's judgment. She did tell him that "[i]f they ask why [the
new statistics] look so much worse I will tell them." Her unease with
the situation was mitigated by her refusal to make false statements
about the error, and by her knowledge that "they have ample oppor-
2 83
tunity to discover it on their own."
Alison Price told of another lawyer in her firm who mistakenly
revealed a client confidence and then lied when the client confronted
her about it. The client had called the lawyer to inquire about a
piece of property that was for sale, and the lawyer called the broker
to get information for the client.
He says, being the salesman that he is, "Well, who wants to
know this information?" She reveals the client's name, and then he
gives her the information. She calls back the client and [gives him
the information] ....The client says, "where'd you get this infor-
mation," and she says, "well I talked to the broker." The client
says "YOU DID WHAT? Well, I certainly hope you didn't give
them my name!" She panics, being young, new, and says, "No I
didn't," and then lives in fear that the broker is going to call the
client and then [the client will] call her and tell her, "You're a liar,
2 84
and I want to talk to the senior partner."
In evaluating this lawyer's conduct, Price said that it was
"[v]irtually harmless, but maybe it would have been better to be hon-
est, just for sanity's sake." When asked whether what the lawyer did
was wrong, she said, "No, not as long as she didn't get caught. I
mean, nobody was really hurt." She explained that the client did not
want the broker to get his name only because he "didn't want the
2 85
broker bothering him."-
Arthur Katz described a common occurrence: a lawyer sends a
package to a client, and the package turns out to contain a document
for someone else. On one occasion, he reported, the client called
and said: "Did you really want to send me this?" He would respond

283 Id Andy Baird recounted a similar incident in which he sent a memo on a

trade bill to a client. The memo turned out to reflect an incorrect interpretation of
one provision of the bill. Baird dealt with this problem by sending a second
"clarifying memo" which did not acknowledge the error but provided "more detail."
Apparently, upon careful analysis the client might have noticed the conflict in the
information contained in the two memos; Baird's strategy succeeded, however, in
correcting the information without the client noticing the initial error. Baird felt that
this was an acceptable resolution of the problem, and that he had no obligation to
acknowledge the error because no harm to the client resulted. See Baird Interview,
supra note 241.
284 Price Interview, supra note 227.
285 Id.
730 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

with words to the effect of: "It's so hard to get good help these
28 6
days."1
Madeline Stein remarked that "[b]laming the secretary happens
all the time. Every lawyer I have ever worked with does it. It's
obnoxious, undermines the relationship with the support staff, and is
' 28 7
lame. Who directs the secretary? Who is ultimately responsible?

4. Impressing Clients

Lawyers' efforts to cover up mistakes are partly motivated by

their desire to gain clients' respect, confidence, and admiration.
This goal leads some lawyers to exaggerate what they have done for
their clients, or what they think they can do for future clients.

a. Who Did the Work

In law firms, partners usually bring in most of the business.

Many clients feel that they have hired the partner with whom they
had their first contact, rather than a firm of lawyers. Many partners,
in turn, feel they must give each client the impression that they, the
partners, have personally attended to every aspect of the client's
matter, even if associates actually did most or all of the work.
As an example of this phenomenon, Deborah Greenberg, an
associate at a large firm, reported listening to calls over a speaker
phone with four others; only two of those listening were identified to
the client on the other end. The silent participants needed the infor-
mation in order to do their part of the work.28 8
The most common way that law firms deceive clients about who
does work is by precluding associates who did the work from signing
documents sent to clients. Beth Forrester said that her memos to a
partner often become memos from the partner to the client.2 89
Andy Baird reported that for "every pleading that I worked on with a
partner, the partner usually signs ... and I don't ....The argument

286 Katz Interview, supra note 221.

287 Stein Letter, supra note 197.
288 See Greenberg Interview, supra note 221. Ms. Greenberg said that the
partners seemed concerned not only about overwhelming the client with a ratio of 5
to I, but also about appearing to have five people billing for one meeting. In fact,
those who were not identified on the phone were not billing for their time. This
deception involves the omission to inform a client rather than the act of giving a
client incorrect information.
289 See Forrester Interview, supra note 220.
1990] LYING TO CLIENTS

they make is that the partnership is ultimately liable [and therefore a

member of the partnership should sign]." 2 9 °
Alison Price said that her firm sends many opinion letters to cli-
ents that associates write but only partners sign. She thought this
deceptive practice went too far:
You know how you put initials in the left hand comer so you know
who did the actual letter in case someone else is signing? I've had
those changed to the partner who signs, because he doesn't want
people to know [that29I 1wrote the letter] ....He doesn't like his
clients talking to me.
Andy Baird reported an incident in which an associate at his firm
investigated a situation, talked to a law enforcement official, and
reported the relevant information to the partner for whom he was
working. The partner then wrote a letter reporting this information
to the client, and stated that he (the partner) had spoken to the law
enforcement official. Baird said that the associate was "very upset"
by the situation. He pointed out that the client could be injured by
this deception. If the client, at a meeting, asked the partner to elabo-
rate on the facts stated in the letter, the partner would have to lie
again because he did not have the conversation with the law enforce-
ment official and would not know the answer. Consequently, the
partner might give the client incomplete or wrong information in an
29 2
effort to cover up the first lie.
Deborah Greenberg told of one document that a female associ-
ate wrote and four male partners edited. Initially, only the four part-
ners signed it. Later, the name of one of the partners was removed,
because "[i]t looked as if too many lawyers had worked on the mat-

290 Baird Interview, supra note 241.

291 Price Interview, supra note 227.
292 Baird also said that an associate in his firm wrote a law review article which
was published under the name of the partner, and the associate got a little dagger at
the bottom of the page acknowledging his assistance. This deceives the reader, who
might be a client or a prospective client, by giving the false impression that that
partner wrote the article. A client who read the article would probably get better
advice from the associate who wrote it, but would mistakenly attribute the expertise
to the partner. Baird thought this was inappropriate: "I think the partners do it more
than they need to because of how they want to be seen. They're selling themselves
and they look at associates as their employees ....I think it really hurts the firms ....
I think it's incredibly harmful." Baird Interview, supra note 241.
Baird felt that associates are the ones most harmed by this practice. The
associate is demeaned by doing a great deal of work and not getting credit for it.
Moreover, the associate is deprived of the professional advancement that would
accrue from having her expertise recognized. Consequently, her ability to advance
within the firm is also diminished. See id.
732 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

ter." 29 3 Greenberg pointed out that, aside from the issue of harm to
the client, this practice harms the lawyer who did the work, and in
turn, harms the law firm:
If the lawyer who writes the document is not identified, it hurts the
lawyer more than the client, because she feels disrespected, and
doesn't perform as well. If the junior lawyer is invisible to the cli-
ent, the senior lawyer is less likely to listen to the junior lawyer's
29 4
advice.
Alison Price talked about the deception that occurs when a part-
ner decides to try a case in which an associate has done all of the
pretrial work and the partner has had relatively little involvement.
The partner
speaks to the client .... [and] says "it may be wise, since he [the
lawyer who actually researched the case] is an associate, for me to
try the case".... but he doesn't tell the client that he doesn't know
anything about the case, that somebody else has been working on
the case for the last year .... If you were more honest with your
clients and gave them an opportunity to make a decision based on
29 5
the work that's been done, they would choose the associate.
Price acknowledged that having the partner try the case might be in
the client's best interest if, for example, the associate is "someone
who belongs in the library," or the partner is a very experienced trial
lawyer. She felt, however, that the client was entitled to have the
29 6
relevant information and to make an informed choice.

b. Making the Work Look Easier or Harder

Some lawyers deceive their clients about their availability or

about the amount of work required to accomplish certain tasks.
Deborah Greenberg reported that sometimes she would tell a client
she was not too busy to take on another matter when in fact she was
swamped. "To flatter the client I put on the appearance of always
being available."
She mentioned that she saw partners in her law firm giving cli-
ents the impression that any work could be done almost instantly:
"If a client asks a partner for something to be done by the next

293 Greenberg Interview, supra note 22 1.

294 Id. This practice may result in detriment to the client because in many
situations the junior lawyer is more intimately acquainted with both the facts and the
law of the matter.
295 Price Interview, supra note 227.
296 See id.
1990) LYING TO CLIENTS

morning, the partner might say 'Oh, sure, no problem.' And he

would not tell the client that an associate would have to stay up all
night to get it out the next day."2' 9 7
On the other hand, attorneys sometimes try to impress a client
by making the work look harder than it is. Many of the lawyers inter-
viewed reported that, when telling clients about settlement negotia-
tions, they exaggerate their achievements or the level of effort
required. In some instances the lawyer is merely trying to look good;
in other cases the lawyer intends to make the settlement look advan-
tageous to persuade the client to accept it. One lawyer noted that in
describing to a client his dealings with opposing counsel, he might
say, "I had to do some fast talking," when he really did not.2 9
Another lawyer indicated that he might say to a client that in dealing
with his adversary, "we've gone round and round on this," when in
fact they had not.2 9 9
Michael Williams admitted: "I am not sure I always accurately
portray the negotiations [with opposing counsel] to the client. I
always portray that I had to fight for it. I have never called a client
and said, 'My God, he just gave in-I didn't have to do
anything.' "'00

c. Deception About What the Law Is

If a lawyer lies to a client about what the law says, one ordinarily
would assume that the lawyer has deceived the client. But what if the
client knows what the law really says and wants the lawyer to misin-
terpret the law so that the client can do something that is illegal? In
such circumstances, the lawyer may have lied, but the client is not
deceived. 3 0 ' Madeline Stein offered a good example of this type of
situation:
I think misstatements of the intent of the law is [sic] one of the most
prevalent and odious forms of deception in the legal business.
There are certain corporate practices perceived by certain indus-
tries to be necessary to survival, and many of them are clearly ille-
gal .... Clients will shop around until they find a law firm that will
sanction in an "opinion letter" the doing of an illegal act. The let-
ters are usually written with a thousand escape hatches: "if the facts

297 Greenberg Interview, supra note 221.

298 See Katz Interview, supra note 221.
299 See Larsen Interview, supra note 206.
300 Williams Interview, supra note 209.
301 The only possible deception would be that the client receives the impression
that it is ethically permissible knowingly to adopt a wrong interpretation of the law.
734 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

are as you have presented them, blah, blah," but the bottom line
message is, "yes you can do it even though the law is intended not
to permit it." The firm writes the letter to keep
30 2
the faith of the
large client and to keep the business coming.

d. Deception About the Value of a Case or the Lawyer's Fee

One common technique among personal injury lawyers is

"lowballing": underestimating the value of the case so that the even-
tual settlement, compared to th& original prediction, looks favorable
to the client. David Larsen explained what he does and why:
In evaluating the value of a case I always lowball. Clients have mis-
conceptions from the newspapers. They think they won the lottery
when they get hurt ....I understate what is likely. Sometimes they
get a lawyer who gives a higher number .... If I tell them [hon-
estly] what I think the case is worth, then they think they got what
03
was coming to them.3
If the lawyer undervalues a case, the client probably will think the
lawyer obtained a good settlement and worked hard to get it.
In some areas of practice, there are standard amounts normally
billed for certain pieces of work. In such instances, it is not unusual
for the lawyer to quote a price for the job, even if his work will be
billed by the hour. One lawyer said that in talking with new clients,
I definitely feel pressure to try to keep the prices down, to let them
know it's going to cost less, and to not have them go away because
... [I quoted] a more realistic sum .... Anybody in business does
that. You want a customer, you give them a better rate at first,30 4
and
after they gain confidence in you, you increase your prices.
Some of the lawyers interviewed expressed reservations about
giving estimates of the value of a case or of projected attorneys'
fees.30 5 One lawyer reported that in talking with a new client about a

302 Stein Letter, supra note 197.

303 Larsen Interview, supra note 206. George Brenner echoed the same
approach: "You may be conservative initially with a person so that they don't get
their expectations up." Brenner Interview, supra note 263.
304 Katz Interview, supra note 221. He explained that once he quotes a
particular price for a job, if the hours spent would exceed that price, he bills the
client for a number of hours consistent with the price quoted. This practice is
deceptive because it represents that the work took less time than it did. Most clients
would not object to this sort of deception because the client is undercharged rather
than overcharged and is not harmed. This consequentialist analysis overlooks the
possibility that the lawyer's intent is to lure the client into a position of dependency
and then raise the price of services.
305 If the lawyer bills by the hour, no necessary connection exists between the
1990] LYING TO CLIENTS

case, he almost never puts an estimate in writing because of the diffi-

culty of making an accurate estimate."0 6 Madeline Stein agreed that
it was "nearly impossible" to give accurate estimates, unless one
used broad ranges. She said that in giving an estimate, one risked
30 7
losing the client if the estimate was either too high or too low.
It might be argued that avoiding specific estimates is an honest
strategy because the lawyer does not know how much the work will
cost. However, the lawyer could disclose what she knows about the
value of the case and about the uncertainty of the outcome. If the
lawyer withholds any information, then the conduct is deceptive.

e. Withholding Negative Opinions of Clients

Lawyers do not like all of their clients, nor do they always

approve of what their clients have done. In the interest of maintain-
ing business and keeping clients satisfied, many lawyers keep these
opinions to themselves and flatter their clients.
A lawyer may avoid telling a client what the lawyer thinks of him
as a person. Arthur Katz made this point cogently: "You might have
a client who is a very unpleasant person, who is difficult to deal with,
and you certainly don't tell him to his face, 'I think you're an idiot,
you're a jerk and I hate working for you." . . . You don't bite the
''
hand that feeds you.""8
A lawyer may also avoid telling a client what someone else has
told the lawyer about the client. Carol Morgan, for example, will not
tell a divorce client the nasty comments the client's husband has
made about the client unless it is important to the case. "I filter out
as much as possible. I won't withhold materially relevant
30 9
allegations."
Arthur Katz said that he sometimes shares an opinion about his
own client with the opposing counsel behind the client's back.
A lot of times someone will say something to me about my
client and I might even say something to this other lawyer... agree
with him that he was a jerk, overly demanding and unreasonable,

value of the case and the price of the lawyer's services. If the lawyer has a contingent
fee arrangement with the client, then the lawyer's estimate of the value of the case
includes an estimate of the fee.
306 Interview with Ed Sanders (a partner in a small firm) [hereinafter Sanders
Interview].
307 See Stein Letter, supra note 197.
308 Katz Interview, supra note 221.
309 Morgan Interview, supra note 275.
736 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

but I'm not going to pass that on3 1to

0
[the client]. I'm a member of
[the client's] development team.
David Larsen described a case in which the client had assaulted
his wife and the wife had sued for damages. In preparing the client
for court he said, "If we go to trial the jury won't believe you unless
you curb your temper and lose eighty pounds." 3 1 1 But Larsen did
not tell the client that he did not believe the client's story. Larsen
simply felt that he had no reason to confront the client and risk
3 12
offending him.
George Brenner echoed the opinion that lawyers sometimes
must protect a client from the lawyer's opinion of the client or the
situation.
Where a client has a really weak case.., and I know it's going
to be an issue, instead of saying to the client, well I think you really
fucked up here, I'll say... I know this is going to be an issue. How
would you respond if you are asked this ... without.. . accusing
them of misconduct .... It's important for 3most 13
clients that their
lawyer believe that what they did was right.

f. Strategic Deception

In some cases lawyers withhold information from their clients as

part of the strategy of a courtroom presentation. George Brenner
described a personal injury case in which a woman had been severely
injured by a piece of machinery at the factory where she worked:
When she talked about this thing she got very upset.... We [her
lawyers] made a conscious decision that we were not going to have

310 Katz Interview, supra note 221.

311 Larsen Interview, supra note 206.
312 Larsen said that if he had confronted the client, the client might have fired
him, but that he would not have minded losing this particular client.
Larsen did not mention that by not confronting his client he also avoided the
question of whether the client would lie when he told his story in court. Lawyers
frequently gloss over difficult questions with their clients to allow their clients to
testify to facts that the lawyers do not believe. See M. FRANKEL, THE SEARCH FOR
TRUTH: AN UMPIREAL VIEW 15 (1975) (asserting that the trial attorney's primary goal
is to advance the client's interests rather than to fully disclose the truth, and urging
reevaluation of these priorities). If Larsen had been more candid with his client, he
could not have given the client such broad leeway in making representations in court.
313 Brenner Interview, supra note 263. Brenner suggests that ifa client wants to
believe that the lawyer condones his conduct, then the lawyer is justified in deceiving
the client to give that impression. An alternative analysis is that the client is entitled
to have the lawyer's honest reaction to the conduct in question because the client
might wish to be represented by a lawyer who genuinely condones the client's
conduct.
1990] LYING TO CLIENTS

her talk about it any more .... we wanted the same thing to hap-
pen in front of the jury .... She broke down on the stand ....
[T]here were members of the jury who were openly crying.
The lawyers did not explain to their client that they wanted her to
emote in the courtroom and therefore had decided to avoid
rehearsal of the testimony. Brenner said he felt uncomfortable with
this strategy, even though "very clearly this was to her advantage."
He pointed out that this approach was to the lawyers' advantage also,
because of the contingent fee arrangement.
Questions of procedure and tactics are ordinarily within the law-
yer's discretion;3 14 Brenner's decision did not violate any ethical
rules. On the other hand, if the client was a very sensitive or private
person, perhaps she would have elected to risk a lower judgment in
favor of avoiding public embarrassment. Did the lawyers know her
well enough to make that decision?

5. Convenience and Control of Work Time

Most of the interviewees reported telling white lies to prevent

clients from interrupting their work. Many deceive their clients
about the reasons why they often do not accept their clients' phone
calls. They lie about where they are or what they are doing when a
client calls. They lie to their clients about the status of pending
work. They withhold information about ongoing work for other cli-
ents that is delaying progress on the work for the client making the
inquiry. Many of the lawyers interviewed also failed to report to
their clients minor action taken on cases, thereby preserving greater
control over certain aspects of the work.
Lawyers often used their secretaries to relay these white lies.
This indirect communication seemed to reduce the lawyers' per-
ceived obligation to be candid. Some of the lawyers even seemed
amused by deceiving their clients about where they were or what
they were doing. Only one of the lawyers interviewed reported that
he was consistently candid with his clients about his availability to
talk with them. 1 5
The lawyers justified these 'ies as trivial, harmless, and neces-
sary. Many lawyers explained that they are so busy they could not
possibly take all client calls or do all the work on a schedule that
accorded with client expectations. Some felt that client expectations

314 See, e.g., infra note 326, MODEL CODE EC 7-7 (1981).
315 See Copeland Interview, supra note 240.
738 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

are unrealistic, that clients do not understand what happens in law

practice, and therefore that candid communication is not possible.
One puzzling aspect of this area is that lawyers often deceive
clients in situations in which the truth would work just as well. In
other words, a lawyer uses deception to solve a problem even though
there are truthful solutions to many of these problems. For example,
the secretary could tell the client that the lawyer could not take a call,
rather than saying she is out of the office. One lawyer postulated
that lawyers enjoy the power that they have and exercise this power
by blatant dishonesty.3 16 This suggests that some lawyers gain ego
satisfaction from deceiving others. Some lawyers fail to evaluate
whether there are truthful alternatives to the lies they tell, while
others may have become so accustomed to lying about small matters
that they do not even notice what they are doing.

a. When a Client Calls

I asked the lawyers what they say or what they tell their secretar-
ies to say to clients who call at inconvenient times. Andy Baird
reported that he often tells clients who have been pestering him that
he is in a meeting when he is not.3 1 7 This formulation was the most
common, along with having the secretary untruthfully report that the
318
lawyer was out of the office.
David Larsen said that when he left his office to play racquetball
he instructed his secretary to inform all callers that he was in court,
rather than on the court."1 9 Ed Sanders said that he did not feel
obligated to accept calls from his clients even if he was in the office,
especially if he was busy or not ready to speak to them. He said he
found the telephone intrusive and that the constant interruptions
made it difficult to do research.3 20
The lawyers interviewed said they did call their clients back, but

316See Williams Interview, supra note 209.

317See Baird Interview, supra note 241.
318 Carol Morgan said that she prefers to have someone else tell the client that
she is unavailable. See Morgan Interview, supra note 275. According to Madeline
Stein, "Telling the client one is in a meeting, even when one is meeting with one's
secretary, or with one's sandwich, happens all the time." Stein Letter, supra note 197.
Deborah Greenberg said that if a client reached her on the phone and she did not
wish to speak to the client, she would say that she was "about to go into a meeting;
something that sounds legitimate so the client won't get pissed off." Greenberg
Interview, supra note 221.
319 See Larsen Interview, supra note 206.
320 See Sanders Interview, supra note 306.
1990] LYING TO CLIENTS

some knew lawyers who did not. 2 ' Michael Williams explained that
he thought some deception occurs because of the
pressure to be on top of... so much work. But... there is some-
thing else. Some sense of power. When [I] ... was fourteen years
old and somebody called you, you didn't say "I'm in a meeting"
.... You didn't think you could get away with that ... [but as a
lawyer] you could say "I was in court all day" when you were there
for an hour. You use those excuses to increase self-importance ....
to impress a client . . . [It makes you feel that you] can control
32 2
things.
He noted that lawyers in large law firms actually have little control
over their work lives, and wondered whether, as a result, they tend to
exercise fully whatever control they do have.

b. ProgressReports on Work

Many lawyers have to respond daily to calls from clients inquir-

ing about the lawyers' progress on a piece of work. Arthur Katz
offered an example of a very typical response to this type of inquiry.
There are times when a client will call and say, "have you done
such and such?", and I'll say "Oh, it's just in word processing,"
when in fact it hasn't been done. I'vejust been too busy to get to it
and I don't want him to call me again that evening .... Other times
I'll say I'm in a meeting and I'll talk to thei later ....
Morally it's ... telling a lie and it's wrong to lie; at the same
time Ijustify it .... The reason I do it is because I want to keep the
client satisfied and I figure I'll keep them more 3 23
satisfied if they
think that their work is being paid attention to.
David Larsen similarly reported telling clients that a piece of
work is "in the computer" or that "I went to the library and someone
was using the books" (when he never left the office). He echoed
Katz's sentiments that this type of deception is "wrong because it is
dishonest, but there's no harm, so it's no big deal." Larsen
explained that he does not tell clients that he is busy doing work for

321 Heather Thomas worked for one lawyer who always had a thick stack of
phone messages on her desk. Thomas said that this lawyer did not feel any particular
obligation to return phone calls, and that it was common for clients to call over and
over again in the hope of getting through. See Thomas Interview, supra note 271.
Carolyn Harris recalled egregious examples of an attorney who made visiting clients
wait hours to see him. See Memo from Carolyn Harris (a former paralegal in a large
firm) (Oct. 1988).
322 Williams Interview, supra note 209.
323 Katz Interview, supra note 221.
740 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

other clients because the clients are paying $150 per hour, and "they
should feel entitled to terrific service."324
Larsen pointed out that "[c]lients have different concepts of
immediacy than lawyers. Lawyers know better; they need to reassure
clients. The client feels better if he thinks the problem is being
'32 5
addressed, even if it doesn't need to be addressed right away."
Some lawyers resolve this tension between client expectations
and lawyer performance by not reporting to their clients certain
aspects of their work. Beth Forrester, for example, would not call a
client to consult about the opposing counsel's request for a short
extension of time if she is confident that the judge will eventually
reach the merits of the case, and she thinks she might need such an
extension from her adversary at some time. "I draw the line between
32 6
substance and procedure."

c. Impact of Workload on Advice

Some lawyers reported that their need to control their wor-

kloads affected the substance of the legal advice they gave. The clas-
sic example is the lawyer who presents a settlement offer in a manner
designed to induce the client to accept it because the lawyer, for one
reason or another, does not want to litigate the case.
Alison Price described a situation in which an attorney sug-
gested that a client not file comments in an administrative proceed-
ing-because he did not have time to do the work. The lawyer did
not ask the client: "Do you want to file comments? These are the
issues and this is how it affects you." Instead, he said, "Well, that
issue is sort of pertinent to your line of business, but I don't think
you need to file initial comments. Why don't we just wait and file
replies? ' '3 27 He did not tell the client about his time problem.

324Larsen Interview, supra note 206.

325Id. On this point, Larsen and Katz agreed again. Katz said that "some
clients are abrasive and demanding. You make judgment calls" about when their
worries are justified." Katz Interview, supra note 221.
326 Forrester Interview, supra note 220. The Model Code draws a similar line.
For example, EC 7-7 states:
In certain areas of legal representation not affecting the merits of the
cause or substantially prejudicing the rights of a client, a lawyer is entitled
to make decisions on his own. But otherwise the authority to make
decisions is exclusively that of the client and, if made within the
framework of the law, such decisions are binding on his lawyer.
MODEL CODE, EC 7-7.
327 Price Interview, supra note 227. Beth Forrester talked about a similar
situation in which she did not tell a client about comments that had been requested in
1990] LYING TO CLIENTS

6. Deceiving Clients to Impress the Boss

Some of the lawyers I interviewed reported deceiving clients to

make a good impression in the law firm, to increase their chances for
promotion, to avoid disapproval, or to avoid conflict. The most dra-
matic examples of this pressure came from Andrew Carpenter. He
described the dynamics within the General Counsel's office of the
corporation where he works:
Saying an absolute "no" to a business concept is a bad thing to do,
but often you have to.... Yourjob is eighty percent policeman....
This is a tension that produces lying. They are begging you to give
them some type of direction but.., to succeed as a lawyer you have
to be perceived as someone who does not say no.328
He mentioned an incident in which one of the officers of the
corporation came to consult him about a proposal which he thought
was of questionable legality: "I was tired late one night and some-
body came up and said 'can we do it?' I was just fed up with how
many possible violations of the law I had approved that day .... I
said 'No. That's it. No more.'" Carpenter later had to defend his
position to the General Counsel, his immediate supervisor. Realiz-
ing that the corporation did not want to take "no" for an answer,
Carpenter "very rationally explained the risks and benefits [to the
General Counsel] ... and said there is no actual legal prohibition."
What he had said the night before (and what he believed to be accu-
3 29
rate advice) was, "No, don't do it, it is probably illegal."
Carpenter also talked about an attorney who had recently joined
the office who "hasn't been sleeping nights because of the tension of
being told to say 'yes'-to be pro-business, regardless."
None of the lawyers I interviewed reported this degree of pres-
sure in their law firms, but some reported a correlation between their
desire to succeed at work and their willingness to be less than fully
candid with their clients. Deborah Greenberg admitted that she
slightly exaggerated her own expertise in one area of law when she
came to the firm:

an administrative proceeding because she felt the matter had only marginal relevance
and "the client.., just loves ... commission work that isn't necessary." She did not
give the client the choice because she did not have time to do the work. Forrester
pointed out that "[w]here something... will have a substantive impact on the client's
case, then... [I] will be as forthcoming as I can be." Forrester Interview, supra note
220.
328 Carpenter Interview, supra note 277.
329 Id.
742 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

One or two cases becomes two or three cases. Then you don't
want to say one thing to the firm and another to the client, so you
have to repeat the misinformation when the client asks you what 3 30
experience you have had in the area in which you are working.
This type of deception is replicated within the firm itself. Asso-
ciates often work for more than one partner, and in some firms the
partners compete for the associates' time. To please the partner, the
associate has to give the impression that he or she is spending all
available hours on work for the one partner, or risk poor evaluations
from all. Michael Williams said that "a partner is almost like a cli-
ent-they [both] want to think you're working one hundred percent
[for them] .... No one knows what you're [really] doing." He felt
that these expectations create a work atmosphere in which "nobody
33
tells the truth."- 1
Claude Adams described a situation in which he used deception
to mediate the conflict between his superiors' expectations and his
client's interests. In an administrative proceeding, Adams' adversary
filed for an extension, raising some substantive issues, and the
administrative agency invited the other parties to respond to this
request. Adams did not think it was worth his client's time and
money to file a response, so he sent the original filing to the client,
but did not send the client the agency's request for comments, or the
comments that other parties filed. Adams thought it was wrong for
him to substitute his judgment for his client's, but did so anyway. He
explained:
Part of the reason I didn't send the request for comments to the
client with a recommendation not to file a response was the fear of
what would happen when I sent a copy of that [the communication
to the client] to the head of my department ....He would think
that I was not doing aggressive business development.... The phi-
33 2
losophy is that you take a client and you expand the work.
Andy Baird was frustrated when, on the day before a trial for a
pro bono case, a partner in his firm ordered him to spend the day
working on a big project for a paying client. As a result of this
instruction, he lost eight hours of essential preparation time on the
pro bono case. He was poorly prepared for the pro bono trial, but
did his best not to let the client know that. Baird commented that

330 Greenberg Interview, supra note 221.

331 Williams Interview, supra note 209.
332 Adams Interview, supra note 254.
1990] LYING TO CLIENTS

"the demands of3 3a3 paying client came before the ethical demands of
the profession."

7. Law Firm Atmosphere

Many of the lawyers I interviewed suggested that the very struc-
ture of law firms fosters deception of clients. The firms indoctrinate
lawyers to accept and to engage in some deceptive behavior. The
basic structure of most law firms is bi-level: partners run the firm
and share the profits; associates are salaried employees. In general,
partners neither invite associates to meetings at which they discuss
management issues, nor inform the associates about what goes on at
those meetings. Consequently, associates may have little informa-
tion about their own performance, the economics of the firm, their
colleagues' earnings, or the firm's plans to expand or merge with
another firm.3 3 4
This administrative structure leads many associates to feel alien-
ated and anxious about what goes on behind closed doors.
Beth Forrester noted the general lack of communication
between partners and associates in her firm. "Members of the cabal,"
she explained, "do not speak to the peons .... They become accus-
tomed to being very careful what they say to people." She said there
is "a habit of secrecy [which] extends to everyone .... Part of it, too,
is that there is a lot of uncertainty about how people will react to
33 5
things."
On the relationship between the power structure of the law firm
and the problem of deception of clients, Forrester said "As an associ-
ate you are fortunate if your partners treat you well but if they treat
you badly all you can do is leave. I think unfortunately the ability to
wield that kind of power tends to convince people that they have a
right to hold more back from clients than they should."
Forrester suggested that if law firm partners deceive their
employees, they may feel free to deceive to their clients. Alison Price
echoed this notion, reporting that partners were abusive toward
associates. She said: "I have had personal mail opened" by one
senior partner. As to another partner, she mentioned, "I oftentimes

333 Baird Interview, supra note 241.

334 In some firms, the atmosphere is more open and meetings include all the
employees in the firm, but in many firms the only administrative meetings are for
partners only. But cf. Marcus, The Little Law Firm That Could, Wash. Post, April 22,
1986, at C5, col. 3 (discussing Onek, Klein & Farr as a firm that defies many of these
conventions).
335 Forrester Interview, supra note 220.
744 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

heard him literally screaming" at associates. "I have watched them

drive lawyers out. There is high tumover. '"336 Beth Forrester sug-
gested that abuses of power by partners might be less acute if there
were a better gender balance among the partners (all the partners in
her firm are men). She noted that "male associates are less forth-
coming because they are trying to emulate the partners .... Women
have to find their own way." She felt that men tend more than
women to think they have a right to make decisions without consult-
ing clients, and that men are less willing than women to admit
33 7
mistakes.
One lawyer offered a perspective on the relationship between
law firm atmosphere, lawyers' treatment of their families, and their
behavior toward their clients. He observed that lawyers' schedules,
often necessitating late-night work, have the potential to compro-
mise relationships with spouses and children. These personal short-
cuts, in his mind, are rationalized sometimes as being inevitable by-
products of a successful law practice. Once people begin to take
these shortcuts with their families, it is a small step for them to begin
using shortcuts in dealing with clients.
Michael Williams expressed the concern that the law firm's
atmosphere erodes lawyers' moral standards about honesty and
other values:
I think law firms have stretched or redrawn many lines, and it's
hard to think of something that one can't justify doing .... It is a
different world than it was twenty years ago. I don't think some
things that
8
are generally accepted [now] would have been accepted
33
then.
Perhaps the lawyers who articulated these structural concerns are
more critical than most of private law practice. Undoubtedly it is
possible to maintain high standards of candor and personal integrity
while practicing law. But not everyone has that choice.

V. REGULATING DECEPTION

A. Can Deception Be Regulated?

Lawyers and moral philosophers tend to disagree about how to

control lawyers' unethical conduct. The lawyers often suggest

336Price Interview, supra note 227.

337Forrester Interview, supra note 220. Cf C. GILLIGAN, supra note 20, at 67
(suggesting that women evaluate moral issues differently from men).
338 Williams Interview, supra note 209.
1990) LYING TO CLIENTS

increasingly specific statutory regulation of conduct regarded as

inappropriate. In legal ethics the rules, which used to be regarded as
advisory quasi-law, are acquiring the status of full-fledged enforcea-
ble law."3 9 Some philosophers, on the other hand, view statutory
directives as a poor substitute for individual reflection on what con-
duct is morally right, and they worry that the use of codes will lead
lawyers not to think about ethical issues, but merely to attempt to
3 40
comply with rules.
Ted Schneyer, criticizing the philosophers, points out that a
great deal of client-oriented unethical conduct, such as encouraging
a client to lie on the stand, violates the ethics codes. He urges that
"the prevailing rules of legal ethics not only protect the integrity of
the judicial process but help lawyers withstand the pressure to do
things in practice, such as advise people to lie, that
3 41
conscience tells
them would be wrong to do outside of practice."
Schneyer explains that the philosophers would prefer that law'-
yers' ethical choices be treated as a matter of "individual lawyer dis-
cretion" rather than as a subject for legislation.3 4 2 He suggests that
by giving lawyers more choice about how to respond to ethical
dilemmas, one would give them more permission to act
3 43
unethically.
In discussing whether their conduct was justifiable, many of the
lawyers voice two levels ofjudgment. They often disapprove of their
deceptive conduct as morally reprehensible, and then they explain
the realities of the situations that lead them to diverge from what
they would regard as morally proper behavior. 3 44 Often they seem
to balance their moraljudgment of a situation against whatever ben-
efits might be gained or harms avoided by deception. They offer jus-
tifications for deception in situations in which the moral judgment is
less troubling than the possible consequences. In reflecting on their
conduct, the lawyers seem to check their behavior against their own
moral standards. 45 The educational and regulatory systems should
encourage this reflective behavior. Nevertheless, some of the harms

339 See Patterson, supra note 21, at 49, 60.

340 See Schneyer, supra note 21, at 1538.
341 Id. at 1553.
342 Id. at 1557.
343 See id.
344 A good example is Andrew Carpenter's avoidance of responsibility for his
client's potentially false advertising. See supra text accompanying notes 277-78. He
said that it was wrong, but that faced with the same situation, he might again choose
self-interest over moral rectitude. See id.
345 The interviews probably evidence a higher degree of reflection than occurs
746 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

caused by deception are too great to leave this area to the discretion
of individuals. Regulation may stimulate needed reflection.
State enforcement of rules requiring lawyers to be honest with
their clients is too expensive, except when the harm prevented is sig-
nificant. Some types of regulation are drastically more expensive
than others, but the difficulty of enforcement should not dampen
efforts to write principled standards of conduct. All prosecutors set
priorities as to which violations of law merit expenditure of resources
for enforcement. Similarly, rules on deception may cover some con-
duct that is unlikely to be identified or punished. In approaching the
problem of increasing lawyer candor, one must ask:
1) What types of deception are most harmful and in need of
attention?
2) What types of regulation are available to affect lawyer behav-
ior, and which are most likely to be effective in increasing the level of
candor in the bar?
The data from the interviews is an initial inquiry into the first
question. The remainder of the Article will offer some thoughts on
the second question and will set forth some proposals for change in
the ethical rules that govern lawyers.

B. Use of Rules to Regulate Deception

In regulating behavior it is better to make a specific rule than to

rely on the judgment of the individual members of the group. Rules
give people notice of the conduct that society expects. They set stan-
dards against which to measure conduct. They allow the develop-
ment of consensus about what conduct is appropriate and help to
foster uniformity of practice. They put pressure on those governed
to comply with their mandates. Rules may provide remedies to those
aggrieved by their violation. Statutory rules are better than common
law rules because they are well organized and easy to locate.
34 6
The absence of specific rules concerning deception of clients
amounts to tacit permission for lawyers to continue to use deception.
The general prohibition on deceit and misrepresentation may lead to
discipline in some chronic or egregious cases, but seems to have lit-
tle impact on the areas discussed by the lawyers interviewed. 4 7

in most lawyers' practices. The occurrence of the interviews seemed to trigger many
observations that might not have emerged otherwise.
346 See supra notes 100-39 and accompanying text.
347 One study indicated that the average adult admits to lying thirteen times per
week. See Goleman, supra note 13, at Cl, col. 4.
1990] LYING TO CLIENTS

Some types of deception are more harmful or more wrong than

others, and some may actually benefit clients.' 4 8 Therefore, specific
guidelines are needed.
Rules prohibiting deception of clients could amend criminal law
or could expand the coverage of consumer fraud or other relevant
statutes. However, the rules most logically belong in the state ethics
codes. State bar associations initiate disciplinary action against law-
yers who violate the state ethics codes. Law students study the codes
during law school; placing them in the codes would help to get them
included in law school curricula. Also, legal malpractice cases often
rely on the codes as evidence of standards of conduct, so including
these regulations in the codes might assist clients in attempting to
recover damages for their lawyers' deceptive practices.
The most serious problem in proposing changes in the state eth-
ics codes is that they will probably share the poor enforcement rec-
ord of the rest of the codes.3 49
The legal ethics codes and policies on their enforcement have
been premised on the traditional model of lawyer-client relations,
which assumes that most clients get good service most of the time
and that the only real need for rules is to control occasional devi-
ance.35 0 Many grievance committees that hear disciplinary cases are
staffed by part-time volunteer lawyers and have only a few full-time
lawyers to investigate and prosecute the cases. 3 5 1 The agencies have
not succeeded in informing the public of their existence and func-
tions. Most clients who have complaints do not bring them to lawyer
disciplinary agencies. The traditional model premise, the thin griev-

348 See, e.g., Morgan Interview, supra note 275 (arguing that assuring clients that
unfinished tasks are nearly completed may encourage the attorneys to do the work
sooner).
349 The underenforcement of the legal ethics codes is well-documented. See,
e.g., Steele & Nimmer, supra note 80, at 979.
In all disciplinary agencies there are few complaints that result in agency
prosecution. Still fewer end in the imposition of sanctions. For example,
in 17 contemporary jurisdictions for which data are available none
imposed disciplinary sanctions at a rate of more than 13 percent of the
complaints received; only 4 imposed sanctions at a rate of 8 percent or
more of the complaint rate.
Id.
350 See D.RosENTHAL, supra note 22, at 16, 23-24; Steele & Nimmer, supra note
80, at 101-03; see also supra notes 21-35 and accompanying text (describing the
traditional model).
351 The disciplinary agencies of 35 states employed six or fewer full-time
lawyers in 1987. See ABA CENTER FOR PROFESSIONAL RESPONSIBILITY & STANDING
COMM. ON PROFESSIONAL DISCIPLINE, SURVEY ON LAWYER DISCIPLINE SYSTEMS 23-27
(1987) (Chart IV).
748 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

ance committee staffs, and the lack of public information combine to

prevent state bars from punishing any more than a tiny percentage of
lawyer misconduct. 5 2 Disciplinary agencies tell over ninety percent
of the clients who complain that their complaints are meritless. 53
Furthermore, the disciplinary agencies act only to punish or deter
the conduct in question. They sometimes order restitution, but they
do not award other damages such as the client might be able to
3 54
obtain through a malpractice or consumer fraud action.
It is beyond the scope of this article to address the variety of
enforcement problems that exist in the lawyer disciplinary system.
These problems are so serious that I am reluctant to suggest addi-
tional rules for the ethics codes. On the other hand, the ethics codes
are treated with increasing seriousness. The distinctions between
standards for disciplinary proceedings and malpractice proceedings
are diminishing; the Model Rules are substantively more similar than
the Model Code to the standards defined by common law. Although
the authors of ethics codes did not intend to provide a basis for legal
malpractice actions, 3 5 5 judges are relying increasingly on the codes
35 6
in malpractice cases.
This coalescence of malpractice law and disciplinary law is a pos-
itive development. Discipline should be available regardless of
whether the misconduct in question caused economic harm to the

352 California, for example, which in 1986 had almost 100,000 active members
of the bar (more lawyers than in any other state), received 8,574 complaints during
that year. Of those, the California bar formally charged only 192 lawyers with
disciplinary violations, and sanctioned only 185. No state imposed a larger number
of sanctions that year, except for New York, in which over 400 sanctions were
imposed. See id. at 1-7 (Chart I).
353 See id.
354 Most of the disciplinary systems do not provide for compensation of victims
of ethical violations. A few have funds to repay clients for money that their lawyers
stole. See C. WOLFRAM, supra note 66, at 137-38 ("Courts have, however, generally
refused to order disciplined lawyers to make payments that are nonrestitutionary
and, thus, more in the nature of fines."); Andersen, supra note 41, at 248-49 & n.106
(citing CAL. Bus. & PROF. CODE, § 6140.5 (West 1974); MAss. SUP. JUD. CT. REP.
4:03-:06).
355 See Hoover, The Model Rules of Professional Conduct and Lawyer Malpractice
Actions: The Gap Between Code and Common Law Narrows, 22 NEw ENG. L. REv. 595, 596
(1988) (quoting MODEL RULES Scope, which states that "[v]iolation of a Rule should
not give rise to a cause of action nor should it create any presumption that a legal
duty has been breached").
356 See id. at 615-16. Hoover suggests that this is an appropriate direction for
malpractice law because the ethical codes give lawyers good notice of what conduct
the state expects, because reliance on the codes would not seriously disrupt
malpractice law, and because the ethics codes set appropriate standards of conduct
for attorneys.
1990] LYING TO CLIENTS

client, to deter subsequent similar conduct. 5 7 Likewise, conduct

that causes actionable damage to a client is an appropriate basis for
discipline. 5 8 The following section focuses on what the standards
should be, not on how to get people to comply with them."' 9

D. Recommendationsfor Change in Regulation of Deception of Clients

This section will suggest some specific changes in the discipli-

nary rules to correct some of the most common and most serious
types of deception that were identified in the lawyer interviews.

1. Fee Questions

Although both the Model Code and the Model Rules contain
substantial provisions concerning fees, they fail to address a number
of issues, including specific billing practices. As the interviews sug-
gest, lawyers' timekeeping practices vary a great deal, and many law-
yers' billing records are rough approximations at best. These
problems contribute to the numerous fee disputes between lawyers
and clients.3 6 0
Although hourly rate billing offers a greater degree of potential
accountability than other methods of billing (e.g., contingent fees,

357 For example, one might wish to discipline lawyers who lied to their clients
about errors they made in litigation, even if the lawyers ultimately corrected those
errors and prevented any harm from resulting. This policy would safeguard the
lawyer-client relationship, lawyers' reputations, and the legal profession by
preventing the harm that results from such conduct, quite apart from economic harm
to clients.
Some consumer laws allow consumers to sue for fraudulent conduct regardless
of whether the conduct injured them. See, e.g., D.C. CODE ANN. §§ 28-3904, 28-3813
(198 1) (outlining unlawful trade practices and consumers' remedies).
358 Ideally, lawyer discipline should be handled in one forum that would
address the public interest in protection from substandard services and the injured
client's interest in one proceeding. This would result in more frequent attention to
the issue of client compensation, and clients could petition for disciplinary action in
what would otherwise have to be malpractice actions. Many difficult questions
remain about how to do this, whether to move disciplinary actions into court or
malpractice cases into administrative hearings, whether administrative agencies could
award damages, and so on.
359 In addition to changing the lawyer disciplinary codes, lawmakers should
amend the consumer laws to allow clients to file complaints for consumer fraud in the
delivery of legal services.
360 The Maine Supreme Cou-t, upholding a rule requiring binding arbitration
for fee disputes, noted that in the view of many observers, attorney "fee disputes are
the principal source of public dissatisfaction with the judicial system." Anderson v.
Elliott, 555 A.2d 1042, 1049 (Me.), petitionfor cert. filed, 58 U.S.L.W. 3306 (Aug. 24,
1989) (No. 89-620).
750 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

premium billing), the lawyer interviews suggest that small and large
deceptions in billing practices are pervasive regardless of the method
used to determine fees. 3 61 The rules could be amended to discour-
age lawyers from fabricating hours or padding bills by including spe-
cific guidance as to hourly billing practices. Lawyers who bill clients
on an hourly basis should be required to record their hours contem-
poraneously with the work completed, and to provide their clients
with itemized bills showing exactly how many hours were spent on
each task. A new disciplinary rule on this subject would help to
standardize these practices. A proposed amendment to Rule 1.5
follows:
36 2
RULE 1.5 Fees
(f) Billing
1) Hourly Billing Requirements. If a lawyer agrees to bill a client
on an hourly basis, the written fee agreement and each bill sent to
the client shall specify:
a) each lawyer's hourly rate;
b) the hourly rates of paralegals, secretaries, or other staff
whose time will be billed to the client on an hourly basis;
c) all other charges that will be billed to the client, such as
court costs, telephone, photocopy, postage, messengers, etc.; and
d) a detailed statement of any other factors that will affect
the amount of the bill.
2) Estimates. If a lawyer has provided a client with an estimate
of the likely total charges, that estimate should be recorded in
writing.363

361 In large firms there is a pronounced trend away from straight hourly billing
and toward "value billing" or "premium billing," in which the bill consists of a fee
computed using the hourly rate plus a performance fee related to the value of the
work to the client. See, e.g., Cobb, Competitive PricingAlong the Value Curve; or The Folly of
Hourly Rate Pricing, LEGAL ECON., Sept. 1988, at 29, 30 (concluding that a billing
structure that attempts to bill clients for the value of legal services performed is
better than one based on hourly rates); Marcotte, Designer Billing, ABA J., Nov. 1989
at 38, 38. Winston Hall maintains that the purpose of this new billing practice is to
generate larger fees than can be claimed pursuant to hourly rate billing. See supra text
accompanying note 231. Value billing, however, removes the opportunities for
accountability that are available to clients who are billed on the basis of hours
worked. It allows lawyers to bill whatever the market will bear regardless of the
amount of work involved. Although value billing poses potential hazards for clients
(especially to the consumers to whom corporations pass the rising cost of legal
services), if adequate disclosure is made concerning the basis of a bill, the system
could be administered without deception.
362 Sections (a) through (e) of Model Rule 1.5 would remain as currently stated.
363 See supra notes 303-07 and accompanying text (regarding current practices as
to fee estimates).
1990] LYING TO CLIENTS

3) Contemporaneous Recording of Time. If a lawyer or other firm

employees are billing on an hourly basis, those billing for their
time must keep contemporaneous time records, recording their
time at least twice each day. If work is performed for more than one
client during each day, billing time must be recorded3 64
each time the
person billing begins a task for a different client.
4) Accuracy. Records shall be accurate within one quarter of an
hour. Rounding is permitted if the actual time worked is half or
more of the number of minutes in the billing unit. (A task which
takes nine minutes may be recorded as one quarter of an hour; a
task which takes six minutes may not.)
5) Recording Requirements. Time records shall include precise
and accurate records of the work done during each time block.
The records must be included with each bill sent to a client, and
must note:
a) the client for whom the work is done, and the person
doing the work; and
b) the specific task in which the person billing is engaged,
such as legal research, drafting a document, making a telephone
call, meeting with identified individuals, or review of discovery doc-
uments. Each of these tasks must be described with particularity.
For example, it is not sufficient merely to record "legal research;"
the question being researched must be noted. If a particular task
benefits two or more clients, the records kept must indicate the
percentage of the total time for the task that is being billed to each
client.
6) Explaining Bills.3 6 5 Each bill sent to a client shall include
the following notice, printed on the front page of the bill in type
the same size as the numerals used to communicate charges:
You are entitled by law to precise and accurate records of
the time for which you are being billed and the work done dur-
ing that time. If you have questions about the information pro-
vided in this bill, please call at . If,
after discussing the bill with him/her, you still have concerns
about this bill, you may call the (State Bar Grievance Commit-
tee) at . If you dispute the amount of a bill, your
lawyer may not withdraw the disputed amount from a client
trust account until the dispute is resolved.
7) Billable activities. Unless parties contract otherwise in
writing,

364 See supra notes 240-43 and accompanying text (regarding current practices as
to non-contemporaneous time records).
365 See supra notes 244-45 and accompanying text (regarding current practices as
to the explanation of bills).
752 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

a) Lawyers may bill clients for time spent:

(1) on work that calls for the professional judgment of a
lawyer;
(2) conferring with other lawyers about a matter;
(3) traveling to and from a meeting or proceeding;
(4) administrative tasks such as filing which require
familiarity with the legal issues in a case.
b) Lawyers shall not bill clients for time spent:
(1) taking breaks from work, eating meals, or
3 66
sleeping;
(2) socializing with a client in person or on the
36 7
telephone;
(3) keeping time records or explaining a bill to a
3 68
client;
369
(4) correcting errors made by firm personnel;
(5) soliciting new business from existing clients or
advising existing clients of new areas of possible work, unless3 7or0
until the lawyer is retained to do work on the matter discussed;
8) Splitting time between two clients. If a piece of work is done
which benefits more than one client, the time shall be allocated
between the clients' bills based on the degree of benefit to each,
unless the clients have agreed to some other method of allocating
time. If a task is to be billed to more than one client, that fact, and
the percentage billed to each client, shall be explained in each bill.
Many lawyers will object that these rules are too onerous, that
the record keeping would be too time consuming, and that they have
good memories of how they spend their time and do not need to
keep such detailed records. Even granting those arguments, how-
ever, lawyers' hourly rates are so high that clients are entitled to a
detailed accounting. Given that the technology is available to allow
efficient and detailed time records to be kept, sloppy timekeeping is
inexcusable.
Some lawyers might object that greater disclosure will multiply

366 See supra text accompanying note 249 (regarding the practice of billing for
non-productive time).
367 See supra text accompanying notes 251-53 (concerning one lawyer's
implication'that he would have billed a client for a social lunch had the client not
jokingly warned him not to bill for that time).
368 See supra note 235 (regarding the billing of clients for time spent preparing
bills).
369 See supra text accompanying notes 279-83 (giving examples of work needed
to correct lawyer errors).
370 See supra text accompanying notes 267-70 (giving examples of instances in
which lawyers advised existing clients of new areas of possible work).
1990] LYING TO CLIENTS

the number of questions and objections to bills made by clients.

That assertion is probably correct, and is part of the purpose of these
rules. The fee charged should not be determined unilaterally by a
lawyer without any opportunity for client review. Some clients may
be in a poor position to evaluate how much work is necessary to
accomplish a particular objective. For this reason, lawyers who
expect their clients to pay for the time it takes to do a piece of work
should be prepared to explain to them what work was done and why
it was necessary.

2. Lawyers' Representations Regarding Expertise

The lawyers interviewed reported frequent deceit of clients

about the lawyers' expertise in a field. Again, the rules in this area
include only general prohibitions.3 7 1 Some states have imposed cer-
tification requirements for lawyers who wish to hold themselves out
as specialists in particular fields.3 7 2 These rules do not explicitly
require lawyers to be accurate in telling clients about their knowl-
edge and experience; much of the puffing that lawyers do would not
rise to the level of holding oneself out as an expert.
The inclination to puff is certainly predictable in any profit-ori-
ented business. Many lawyers argue that puffing is harmless as long
as clients do not have to pay for the extra time the lawyer takes to
acquire expertise. Other lawyers note that many lawyers do bill for
study time, regardless of the representations they have made to cli-
ents about their expertise. Moreover, because lawyers are fiducia-
ries, and expensive ones at that, clients are entitled to know the
extent of their lawyers' expertise.
Some clients, if they were to receive accurate information, might
choose to seek other legal representation; others might accept that
the lawyer has some background work to do. Once the client knows
the extent of the lawyer's knowledge, the lawyer and client can nego-
tiate whether or not the client should pay for the lawyer's acquisition
of new knowledge. Lawyers should have an affirmative duty to dis-

371 See MODEL CODE DR 2-105 ("A lawyer shall not hold himself out publicly as a
specialist" except in certain specified situations (emphasis added)); MODEL RULE 7.4.
The Model Rules appear to apply to both public and private communication
concerning specialization or expertise; however, like the Model Code, Rule 7.4 deals
with which specialties may be advertised, and not with the accuracy of particular
information offered with regard to specialization.
372 See Morgan, supra note 48, at 718 (criticizing these rules as merely reducing
the number of people holding themselves out to do particular work which in turn will
reduce a potential client's "range of choice"). .
754 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

close accurately the extent of their expertise. To create such an

explicit duty the Model Rules could be amended as follows:
37 3
RULE 7.4 Communication of Fields of Practice
(b) Expertise
1) Disclosure. In discussing prospective work, a lawyer shall
inform each client of the precise extent of his or her expertise in
the area in which the work is to be performed. The lawyer shall
offer information regarding the extent of his or her knowledge, or
the knowledge of others in his or her firm, of the laws and regula-
tions that bear on the issue, of the procedural rules that govern the
proposed action, and of any technical knowledge (e.g., medical, sci-
entific, or economic) required. The lawyer shall provide accurate
information concerning the number and type of related cases that
the individual lawyer has handled, and that the firm has handled. If
known, the lawyer shall provide information about whether other
firms have had more experience in the area in question.
2) Acquisition of expertise. A lawyer shall explain to each client
what aspects of the relevant law are familiar to the lawyer and what
aspects must be researched. A lawyer shall explain at the outset
that clients will be billed for any research required.

3. Advising Clients About Possible Additional Work

Many of the lawyers interviewed reported that they have

deceived present clients while trying to solicit new business from
them. Successful solicitation is extremely profitable for firms that
represent large corporate clients because there is almost no limit to
the number and variety of activities that could be undertaken on
behalf of such clients.
One lawyer argued that corporate clients who already pay exor-
bitant legal fees and who use in-house counsel to deal with outside
lawyers fully understand that lawyers have a financial interest in
expanding the relationship.3 74 On the other hand, many clients trust
their lawyer's judgment and do not understand their legal problems
as well as their lawyers do. Even if the client's representative is an in-
house attorney, outside counsel may ultimately control the legal
activities the client pursues because the client gives weight to outside
counsel's expertise in specific areas of law.
In addition, judgments about the necessity of certain legal serv-

373 The existing Model Rule 7.4 would be redesignated as subsection (a), parts
(1), (2), (3).
374 See supra notes 269-70 and accompanying text.
19901 LYING TO CLIENTS

ices are extremely subjective. Assessing the potential benefit of a

piece of work to a client is complex and often requires a grasp of
information known only by the lawyer. In the case of comments on a
proposed agency rule, one obvious consequence of a client's deci-
sion to file such comments is the thousands of dollars of fees that the
lawyer will earn. To reduce lawyers' profit motivation, and to enable
clients to rely on the candor of their lawyers' advice, the legal system
should prohibit lawyers from recommending action unless they are
convinced that such action would benefit the client.3 7 ' A proposed
formulation of such a rule follows:
RULE 7.35 Solicitation of New Business From Existing
763
Clients
a) A lawyer shall not suggest to a present client legal action
additional to that already undertaken unless the lawyer is person-
ally convinced that retaining the lawyer to undertake such addi-
tional action would be so beneficial that the cost of the services
would be an appropriate investment. The lawyer must disclose all
factors that might reduce the benefit of the proposed work to the
client.
b) In making compensation and promotion decisions, a law
firm may not sanction a lawyer for advising a client that a particular
action probably will not be beneficial.

4. Communicating With the Client

Lawyers often avoid speaking with their clients if they have not
accomplished work they promised to do, or if they have made errors
they do not wish to disclose. Patterns of avoidance behavior appear
in the disciplinary cases, 3 77 as well as in the interviews for this Arti-

375 Another possible method of eliminating deception in this area would be to

prohibit lawyers from soliciting business from present clients unless the work
recommended was directly relevant to the objectives for which the client has retained
the lawyer. Indeed, most regulation of solicitation is designed to protect clients from
their lawyer's avaricious motivations. The main drawback to this alternative is that
many clients rely on their attorneys to notify them of matters that might be of interest
to them.
376 Proposed Rule 7.35 would be a new rule with no current analogue in the
Model Rules. It would follow Rule 7.3, which concerns solicitation of prospective
clients.
377 See, e.g., Spindell v. State Bar, 13 Cal. 3d 253, 260, 530 P.2d 168, 173, 118
Cal. Rptr. 480, 485 (1975) (stating that "[flailure to communicate with, and
inattention to the needs of, a client are proper grounds for discipline"); Florida Bar
v. Peterman, 306 So. 2d 484, 486 (Fla. 1975) (suspending a lawyer for refusing to
update clients on their case and to return phone calls); In re Disciplinary Action
Against Kolbinger, 417 N.W.2d 615, 616 (Minn. 1988) (holding that an attorney
756 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

cle.3 78 Although many lawyers perceive this type of deception as

trivial, avoiding clients may deprive them of adequate service. If the
client knew about the deception, he or she might demand better ser-
vice or might fire the lawyer and look for a better one. Deception to
cover delays is unnecessary; in most cases, the lawyer could be can-
did with a client about a delay in completion of work and not suffer
adverse consequences.
Even when lawyers do not avoid their clients, they often fail to
provide information that the client might want to know. If the lawyer
knows that a client wants certain information relating to a case, and
that the information might affect the client's conduct, then the with-
holding of that information is deceptive. Model Rule 1.4 might be
amended as follows to deal with both of these problems:
3 79
RULE 1.4 Communication
(c) A lawyer shall respond to a client call within two business
days after receiving it, or shall make arrangements for a partner or
an employee to respond to the call within that time period.
(d) A lawyer shall inform a client of all matters relating to rep-
resentation which, if known to the client, might cause the client to
3 80
alter his or her course of conduct.
(e) In discussing progress on a matter with a client, a lawyer
shall disclose any errors made by the law firm or the lawyer, and
shall disclose any failure to progress on work and the reasons for
the delay. A lawyer shall not represent to a client that the lawyer
has done work that the lawyer has in fact not done.
(f) A lawyer shall not withhold information from a client to
38
serve the lawyer's own interest or convenience. '

5. Duty to Confront Lawyers Violating Disciplinary Rules

The current disciplinary rules in most states attempt to enforce

who, among other things, failed to adequately communicate with his client and also
failed to respond to the client's request that he return the client's file, should be
placed on probation); In re Gill, 114 N.J. 246, 252, 553 A.2d 1337, 1340 (1989)
(holding that a lawyer violated the Model Code when he avoided all communication
with his client because he had failed to pursue the client's interests diligently.
378 See supra notes 323-24 and accompanying text.
379 The addition of these subsections would require the deletion of that part of
subsection (a) of present Rule 1.4 dealing with prompt responses to requests for
information. The remainder of subsection (a), however, would remain unaltered.
3s80 This language is adopted from Spector v. Mermelstein, 361 F. Supp. 30, 40
(S.D.N.Y. 1972), modified on other grounds, 485 F.2d 474 (2d Cir. 1973).
381 This language is drawn from the comments to current MR 4.1, but makes
self-interested withholding of information a disciplinable offense.
1990] LYING TO CLIENTS

the rules by making lawyers assume the role of private attorneys gen-
eral. Specifically, the rules require lawyers to report other lawyers to
the bar grievance committee. 8 2 These rules are notoriously ineffec-
tive.3813 Lawyers do not wish to jeopardize the careers of other law-
yers, the reputations of other law firms, or their relationships with
colleagues. To report a fellow lawyer, even when these constraints
are absent and the violation in question is serious, is a violation of a
professional norm that frustrates effective enforcement of the disci-
plinary rules.
The disciplinary system cannot rely on clients as the sole source
of reports of ethical violations. The people most likely to know of
violations of ethical rules are other lawyers.
Instead of requiring lawyers to report violations to the bar griev-
ance committee, the Model Rules should require a lawyer who learns
of an ethical violation to confront the violator. The Rules should
require a lawyer to report a violator to the bar only if the violator
fails to take adequate corrective measures. A similar duty of con-
frontation is part of the ethical code used in the field of clinical psy-
chology. 84 A draft of such a provision follows:
RULE 8.3
38 5
Confronting and Reporting Professional
Misconduct

382 See MODEL CODE DR 1-103; MODEL RULE 8.4. But see D.C. CODE OF
PROFESSIONAL RESPONSIBILITY DR 1-103 (1989) (requiring an attorney with
knowledge of misconduct on the part of another lawyer to disclose it only upon the
request of a court or other authorized authority).
383 For example, at a 1985 continuing legal education class on ethics in West
Virginia, I polled an audience of about one hundred lawyers with regard to the
number of violations of disciplinary rules that they had witnessed, and the number
that they had reported to the bar grievance committee. Most of the lawyers present
reported that they had witnessed many violations of the disciplinary rules. Not one
of the lawyers in the room had ever reported any violation of a disciplinary rule to the
bar grievance committee.
384 The psychologists' ethical code is written in non-mandatory language, but
encourages psychologists to confront their colleagues when they notice problems:
When psychologists know of an ethical violation by another psychologist,
and it seems appropriate, they informally attempt to resolve the issue by
bringing the behavior to the attention of the psychologist. If the
misconduct is of a minor nature and/or appears to be due to lack of
sensitivity, knowledge, or experience, such an informal solution is usually
appropriate. Such informal corrective efforts are sensitive to any rights to
confidentiality involved. If the violation does not seem amenable to an
informal solution, or is of a more serious nature, psychologists bring it to
the attention of the appropriate local, state, and/or national committee on
professional ethics and conduct.
AM. PSYCHOLOGICAL ASS'N, ETHICAL PRINCIPLES OF PSYCHOLOGISTS 8 (1981).
385 This proposal would replace subsection (a) of the present Model Rule 8.3.
758 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

(a) A lawyer who becomes aware of a violation of a disciplinary

rule by another lawyer shall confront the other lawyer, inform her
of the alleged violation, and suggest measures that might correct or
mitigate the violation. If the lawyer in violation is in a supervisory
position over the confronting lawyer, the latter may elect to inform
another senior lawyer in the firm of the violation. In this case, the
reporting lawyer may pass the duty of confrontation to the more
senior lawyer. If the violator fails to take adequate steps to correct
or mitigate the damage that the violation of the disciplinary rule
has caused, the confronting lawyer shall report the violation to the
bar grievance committee.

CONCLUSION

Having said that I did not set out to find out how much of what
kind of deception is perpetrated by lawyers against their clients, I
must, in concluding, articulate a tentative opinion that is the product
of my conversations. Almost every time I talk with a practicing law-
yer or a law student about this Article, the person tells me another
story about lawyer deception of clients.3" 6 Occasionally I talk with a
lawyer who reacts instead by getting angry with me for writing this
Article. Most recently, I talked with two lawyers who upon learning
of my topic, inquired anxiously whether I had spoken to anyone at
either of their law firms. This experience leaves me feeling that I
have told only the beginning of a longer story.
On the other hand, I look back over my notes from the inter-
views and see many stories that I did not include because they were
almost identical to stories already in the text. When I asked the law-
yers I interviewed about padding bills, doing unnecessary work, con-
cealing errors, or any number of other issues, the responses became
predictable. Most of the lawyers had done these things, sometimes
often. Most were at least somewhat worried about the deception, but
didn't feel they had good alternatives.
The lawyers' problems tended to be grouped according to firm
size, with the solos and small firm lawyers working to make ends
meet, and the large firm lawyers struggling to produce time sheets
that would generate enough dollars to satisfy their supervisors.
Many of the lawyers I talked with told me stories about other
lawyers that were truly outrageous. Most of the large firm lawyers I
talked to were associates; the most frightening stories are the ones of

386 Any reader who wishes to share a story or two may write me at The Catholic
University of America, Columbus School of Law, Washington, DC 20064.
1990] LYING TO CLIENTS

major fraud and conversion perpetrated by partners in large

firms,3 8 7 and the stories of pervasive overbilling in an effort to meet
the firm minimums.188 Premium billing is part of this picture as
well-the firms are experimenting with abandoning the 3 89
limited
accountability that is provided to clients by hourly billing.
It is possible that I talked with atypical lawyers from atypical
firms, and that another set of interviews would produce a different
picture. I have no doubt that there are lawyers whose standards of
integrity would not allow them to deceive their clients, even if others
around them were doing so. But in the contemporary world of law
practice, there is pressure on those standards. Most of the stories I
was told are partly a response to that pressure.
A tentative set of recommendations for changes in the code of
professional ethics that governs lawyers is a necessary part of the
solution to what appears to be a serious and pervasive problem in
the profession, but it is not enough. The legal profession is becom-
ing increasingly competitive and intense. 39 0 This makes it more diffi-
cult for lawyers to be honest with their clients or their colleagues.
They must work outrageous hours in order to produce work more
quickly than ever before. In addition, lawyers face intense pressure
to bring in business. The subculture of the law firm does not put
much emphasis on truthfulness as a value. In large firms, earning
money is valued above all else. Lawyers give up their private lives,
consoling themselves with lavish salaries, perks, and fringe benefits.
The pressure and the isolation combine to compel lawyers to accept
deception to whatever extent it is accepted in the firm, so that law-
yers come to believe, in Nietzsche's words, that "lies are necessary in
order to live." The structure of the work in large law firms places
large firms on an institutional collision course with many humanistic
values such as truthfulness and altruism.3 91 What would it take to

387 See, e.g., supra note 216 (Winston Hall's story about "the fraud," who
chronically billed large numbers of hours he had not worked).
388 See, e.g., supra note 209 (Michael Williams' description of the cavalier attitude
in his firm toward hourly billing of wealthy clients).
389 See supra notes 229-30 and 361 and accompanying text.
390 See text accompanying notes 52-62.
391 One study of 270 Maryland lawyers reported that one third of the lawyers
were uncertain about continuing in law practice for the rest of their careers. The
most common problems mentioned were the negative public image of lawyers, the
high cost of services, case overloads, insufficient time for a personal life, and the
excessive business orientation of law firms. See Survey Reveals DisturbingTruth: Lawyers
Unhappy with Profession,* B. LEADER, Mar.-Apr. 1989, at 22-23. Others may leave their
firms because they dislike the pressure, or because they do not like being ordered
around. One lawyer interviewed for the Maryland study stated that, "the pressure of
760 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 138:659

make the law firms change their deceptive practices? Part of the
answer is client demands for change. In some of the most blatant
cases of overbilling, clients are contesting lawyer's bills.3 9 2 When
these cases are publicized, other firms undoubtedly become more
careful.
Another part of the answer must lie in the justice system. Disci-
plinary action may provide a deterrent to some types of ethical mis-
conduct, but some lawyers who steal from their clients should go to
jail. Others should be relieved of some of their ill-gotten gains in
malpractice actions. As clients become more alert to and more skep-
tical of some of the things their lawyers tell them, some misconduct
will be exposed, and some will be deterred. Many lawyers, however,
will continue to deceive their clients, and many clients will continue
to mistrust their lawyers.
New disciplinary rules alone will not correct the institutional
problems that erode lawyers' ability to value truthfulness, but they
can initiate the process and set the standards. Law firms need to
reevaluate the work environments that they create for their lawyers,
and to decide how much deception they wish to tolerate or tacitly
encourage. In a field in which the touchstone is self-regulation,
externally imposed rules can solve only some of the problems.

getting and keeping clients, marketing, collecting fees ... are great. I don't want to
be under this kind of pressure for the rest of my life." Id. at 22. These pressures are
apparently taking their toll on lawyers, as 40,000 currently leave the profession each
year. See Margolick, Alienated Lawyers Seeking-and Getting-Counsel in Making the
Transition to Other Careers, N.Y. Times, Feb. 10, 1989, at B7, col. 1. The number of
new lawyers entering the profession is, coincidentally, also 40,000. See id. Many of
those who stay are unhappy, and would prefer a different type of work environment.
392 Recently, for example, Kirkland & Ellis tried to charge $957,099.05 for
representing the estate of the owner of a football team. Seventy-seven people
worked on the case. Thejudge thought that was too many and too much, and cut the
fee in half. Sidley & Austin tried to charge $2.6 million to an insurance company for
work that had been estimated at $496,000 to $628,000. The firm settled for a lesser
amount. See Margolick, At the Bar, N.Y. Times, July 7, 1989, at B5, col. 1.