‘Truthiness’ and preserving your reputation

By Diane Karpman

Karpman

Truthiness,” a term coined by comedian Stephen Colbert, was deemed by linguists as the word best reflecting the year 2005. It means something that everyone knows ought to be true, even if not supported by facts. “Truthiness” is popular in government circles (e.g., “Brownie, you’re doing a heckuva job”) and with lawyers.

For example, lawyers often maintain that if they didn’t charge the client, or they performed pro bono, they have no liability. (Gee, wouldn’t you love to know when a case is becoming pro bono?) 

Another common belief is that if lawyers are sued, they can defend themselves with facts of the case. The theory supporting this is that the most valuable possession of lawyers is their reputation. That is the reason that some believe that the disciplinary system is “shame” based.

The right to defend that valuable asset can trump the ultimate duty of confidentiality owed to a client. Otherwise, lawyers would be defenseless against client attacks on their competency and integrity. Therefore, in client-initiated fee disputes, client allegations of negligence, or State Bar proceedings initiated by a client (not the State Bar or a third party), self-defense is valid. According to the Restatement of the Law of Lawyers, the right to self-defense may exist in disqualification motions, depending on the facts. 

By bringing charges, clients specifically waive attorney-client privilege. Evid. Code §958 explains, “There is no privilege . . . as to a communication relevant to the issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.”

If your reputation is attacked, your ability to practice law is at stake, and the right to practice is a valuable property right. In re Ruffalo, 390 US 544 (1968). A lawyer’s restrained, proportional disclosure, designed to refute or mitigate the wild accusations, is acceptable.

This can be tricky in motions to withdraw, because they are brought by lawyers. If the client responds with gory details, a lawyer may reply with facts, but there should be a nexus to the aspersions cast by the client. The self-defense exception does not require a direct lawyer-to-client dispute; it can be triggered by a client’s claims in extrinsic proceedings, where counsel is not the direct target. The linchpin is that the client puts the attorney’s services “at issue” in a proceeding that intrinsically involves the client’s rights. This could be an advice of counsel defense in a malicious prosecution case or the validity of a lawyer’s opinion letter involving a tax shelter (which accountants euphemistically call “tax products”).

You might think that the right of self-defense is vast, broad and covers third party claims against lawyers. Generally that is not the case. In a handful of extremely dire cases, where the attorney could be deemed to be complicit in criminal activities, lawyers may be permitted to defend against third party claims. Otherwise, they can’t. That belief, that you can defend yourself (no matter what), is truthiness.

• Diane Karpman, a legal ethics expert, can be reached at 310-887-3900 or at karpethics@aol.com.