Loopholes and Fraud 539.2
As a former law professor, I know all about loopholes. I trained young attorneys to find omissions and ambiguities in wording to find legal ways to evade the clear intent of contracts and laws. Although I’m not any more, I used to be comfortable with this technique. After all, that’s what lawyers are paid to do. And despite public disdain for lawyers, it’s precisely what most clients want and expect when they hire one.
The fact is, long-standing traditional assumptions about the adversary system do justify the search for and use of legal loopholes. But strategies to evade the spirit of promises and laws put our integrity on a slippery slope.
Farther down that slope is the willingness to fabricate facts, lie about true intent, or falsely deny knowing or remembering things. These are fundamentally lies. They are dishonest and unethical in litigation, business transactions, and personal relations.
For example, a common ploy to evade limits on campaign contributions is to donate funds in the name of minor children. But falsely representing that the children actually exercised control and independent judgment isn’t just being clever, it’s fraud. The same is true for workers who falsely claim to be sick to take a day off work or to evade no-strike laws, parents who misrepresent their address to get their child in a better school or fudge their child’s age to qualify for a discount, and executives who backdate documents.
Exploiting loopholes is bad enough, but lying crosses the line.
This is Michael Josephson reminding you that character counts.
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Comments
Amen to that! My 13 year old looks younger, so it would be easy to pass him off as younger to get him in to movies and other attractions cheaply, but what message would that be sending him?
Posted by: Bryce Mibeck | November 9, 2007 2:56 AM
The overall message of this commentary is excellent.
It is, however, regrettable that Mr. Josephson considers his role as a law professor was to teach students "to find legal ways to evade the clear intent of contracts and laws." As a seasoned, practicing lawyer, I see that as the antithesis of my profession and would never hire a lawyer who had been trained in such a way.
A legal education should teach students to recognize and comprehend the varying assumptions, rationales and perspectives that guide the conclusions we make as humans. It is like turning on a bright light which reveals there is little that is black and white. After all, as a matter of common sense, our “intent” is rarely “clear” to others or else folks would seldom disagree. Thus, with a healthy recognition of differing perspectives and rationales of those involved, lawyers are uniquely positioned to find common ground among parties who are entangled in a dispute.
My overall experience is that the individual members of the Bar whom I daily encounter as opposing counsel do not wish to evade the law but are simply trying to find a workable solution for their clients. And, while there are certainly those who abuse their role and the system itself -- as in any organization populated by human beings -- my experience has been that most clients want their attorney to be honest and do the right thing by everyone involved. Consequently, I find a lawyer's character to be commensurate with that of his client. Interestingly, some clients will continue to be represented by an attorney who best serves their interests regardless of the means or ethics employed, accepting the resultant benefits and foisting the moral blame upon the attorney. However, both the client and the attorney are responsible for the morality of their decisions throughout the entire relationship. Otherwise, we are not being honest about our responsibilities as citizens in a justice system predicated upon unparalleled freedom of choice.
With that in mind, the lawyer who uses his role to evade the law is grossly misusing his responsibilities – and it is even worse for an educator to teach students "to find legal ways to evade the clear intent of contracts and laws."
Posted by: Lawdog | November 16, 2007 9:45 AM