The Bodyguards of Lies: Lawyers’ Power and Professional Responsibility

Christopher Whelan

This book uses real-world examples, case studies, and commentary from practitioners to reveal the many and varied strategies American and English lawyers use to protect truth.It shows how they tackle their conflicting duties, and highlights the 'tragic choices' lawyers everywhere routinely make through their 'power of decision'. What emerges are new ways of understanding the critical role lawyers play in society - and their professional responsibilities.'Truth is so precious it should always be protected by a bodyguard of lies.' Churchill said this about wartime deception plans, but lawyers' clients may think their truth - especially an 'inconvenient truth' - is so precious it too should be protected. Lawyers are 'bodyguards of lies' when they use so-called 'tricks of the trade' not only to keep clients' secrets but to construct a reality that is far from real. But should they? Lawyers have a divided loyalty. The book presents a unique and fascinating account of what happens when lawyers' duties to clients conflict with their duties to the legal system, and looks in detail at the ethical codes and laws that regulate their conduct.

Considers the ethical codes and laws that regulate lawyers' conduct

Foreword by Stephen Sedley, Lord Justice of Appeal 1999-2011PART ISETTING THE SCENE: THE TRUTH ABOUT LIES1. IntroductionI. 'The Truth, the Whole Truth, and Nothing but the Truth'II. Operation MincemeatIII. 'Corkscrew' MindsIV. A Hippocratic Oath for Lawyers?V. Lawyers, Truth and JusticeVI. Tricks of the TradeVII. An Inconvenient TruthVIII. Why Tricks MatterIX. A Comparative ApproachX. Structure of the Book2. The Lawyer's Role: 'Hired Guns' or 'Heroes'?I. Defining LyingII. Defining TruthIII. Virtuous LyingIV. 'Virtuous L(aw)y(er)ing'V. The Lawyer's Professional Responsibility - Protecting Clients?VI. Respect for Client AutonomyVII. Protecting Dignity and LibertyVIII. The Pervasiveness of LawIX. Are Lawyers 'Hired Guns' or 'Heroes'?X. Conclusions3. Lawyers: A Divided Loyalty?I. LegalII. EthicalIII. MoralIV. ConclusionsPART IISTRATEGIES TO PROTECT THE TRUTH4. Keeping Confidentiality: Tragic ChoicesI. Tragic ChoicesII. ExceptionsIII. Inadvertent Disclosure5. Lying with the Law: The LectureI. Anatomy of a MurderII. Advice on the LawIII. Answering QuestionsIV. Advice on Law EnforcementV. Advice on Evidence - CoachingVI. Baron & Budd - Getting Away With It?6. The Inconvenient Truth: Selective Ignorance and Wilful BlindnessI. A Time to KillII. The 'Buried Bodies' Case and Mecca v McClureIII. PerjuryIV. 'None of My Business'V. InferencesVI. Expertise7. Licence to LieI. DefaultII. Official SanctionsIII. Contracts of Silence: Secret Settlements and NDAs8. Exploring the Outer Space of LawI. Legal Realism and the Indeterminacy of LawII. Stare DecisisIII. Non-Positive LawIV. An Arguable CaseV. Private Law-Making - Test CasesVI. Fidelity to Law9. Creative ComplianceI. The Techniques of Creative ComplianceII. EnforceabilityIII. Will Creative Compliance Survive?IV. Creative Compliance - Ethical or Not?10. Lying with the Sword of Truth and the Dagger of DeceitI. The Sword of TruthII. The Dagger of DeceitIII. Economical with the Truth11. The Smoking GunI. Discovery/DisclosureII. Whistleblowers and GatekeepersIII. Strategies12. A Sporting Chance? Courtroom Tactics in a Criminal ContextI. A Sporting Chance?II. Keeping Evidence OutIII. Challenging Adverse EvidenceIV. Presenting an Alternative View - The 'SODDI' DefenceV. The 'Cockroach' Defence - Trial by OrdealVI. Playing the JudgeVII. Victim-BlamingVIII. Ethical or Not?IX. Reasonable Doubt - The Twilight ZoneX. Some Conclusions13. Effective AdvocacyI. Playing the JuryII. Preparation - The 'Dream Team'III. Cross-ExaminationIV. Tools of PersuasionV. Spin-DoctoringVI. Challenging the ExpertVII. Opening and Closing SpeechesVIII. Jury Nullification (US) - Jury Equity (EW)14. Courting the Court of Public OpinionI. Kobe Bryant - AgainII. Public OpinionIII. Trial Publicity RulesIV. Super-Injunctions, Anonymity Injunctions and Hyper-InjunctionsPART IIIBODYGUARD ETHICS15. The Dynamics of Decision-Making: The Pit and the PendulumI. The PitII. The Pendulum - Crossing the LineIII. The Challenge16. The Dynamics of Ethical JudgmentI. The Missing LinkII. The Three-legged Stool - Clients, Courts and ConscienceIII. The Fox and the HedgehogIV. Thinking Like a LawyerV. The Application of Ethical DiscretionVI. The Conscience of a LawyerPART IVCONCLUSIONS17. Bodyguards of Lies: Power and ResponsibilityI. Rule of Law - Rule of LawyersII. An Oligarchy of BodyguardsIII. PowerIV. First-Class LawyeringV. A Modified Standard Conception of Lawyers' EthicsVI. An Oligarchy of Ethical Lawyers: Obedience to the Unenforceable