I once interned for a judge who had a coffee mug that had “Everybody Lies” printed in bold black font on its side. The judge never brought the mug into the courthouse when we were on trial, but during motion days when just lawyers were in the courtroom, the judge liked to bring the mug with him, perhaps to ensure that the attorneys in the courtroom were as candid as possible. Most lawyers would not be surprised to hear that clients are sometimes less than truthful with their lawyers. This can make it difficult for lawyers to do their jobs, and although attorneys should generally trust what a client says, they should do everything they can to make sure that statements made by clients are accurate.
One of the biggest reasons why clients might lie to their attorneys is since they believe lawyers would not want to take a case if the client was completely forthcoming with counsel. I once interacted with a client who did not tell three prior lawyers that he signed a release presumably waiving claims related to the lawsuit the client wished to file. Each of the prior lawyers dumped the client once they found out about the release. I counseled the client to just be forthcoming about the release with the next attorney, and this candor convinced the lawyer to take the case. Since both the client and attorney were on the same page about the release, they had a strategy to handle the matter, and the case eventually resolved on favorable terms as if the release never existed.
Sometimes, clients are not forthcoming since it can also impact fee arrangements surrounding a given representation. Earlier in my career, I decided to take a case on a partial contingency basis since my investigation of the claims made me believe that there could be a significant recovery in the matter. I later discovered that the defendant had significant claims of their own against my client that were not fully disclosed to me prior to taking the case. I essentially had to offer the client a “free” defense of these claims, and I barely got anything from the contingency portion of the fee arrangement when everything was said and done — a lesson I will not soon forget.
In other instances, clients simply do not understand that they need to disclose something, and this can lead to issues in the representation. For example, I once worked on a case in which my client needed to produce a bunch of records about the people who worked for the client during a given time. The client produced records for a number of workers, and we represented that these materials were all the records we had that were responsive to the need to produce records.
I later discovered that my client only provided documents related to people that were classified as employees and did not produce documents related to people the client had classified as independent contractors. This mix up might have simply been a result of miscommunication between my client and me. Nevertheless, it was only after I verified the information and materials that the client provided that I was able to determine that we needed to produce additional materials.
Sometimes, clients will not tell their lawyers the whole truth because they are embarrassed about a matter or do not want to disclose issues that may be exploited by the other side. One time, I was deposing a plaintiff who claimed that he sustained an injury while riding his motorcycle. Like any good insurance defense lawyer, I pulled all of the medical records, and I discovered that at one point, the plaintiff disclosed to his health care provider that he was injured falling down his own stairs. If I could prove that the plaintiff was injured at home, it would basically eliminate any liability in this case.
I confronted the plaintiff with this information at his deposition, and it was clear that the plaintiff’s lawyer had no idea that this inconsistency existed. If the lawyer had pulled his clients medical records beforehand, he would have known for himself that a problem existed with his case, but by trusting his client, the lawyer walked in a difficult situation. Ever since this episode, I have tried my best to pull all relevant records when verifying a client’s claims rather than taking a client’s words for it.
All told, clients often do not intentionally misrepresent matters to their lawyers, and I am not saying clients can never be trusted. However, there are numerous reasons why clients may be less than completely transparent with counsel so lawyers should try to verify information provided by a client.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at firstname.lastname@example.org.