Another take on the lawyer as deceiver with license to steal (or authorized trickster, if you will).
Lawrence M. Solan, Brooklyn Law School, has published Lawyers as Insincere (But Truthful) Actors as Brooklyn Law School Legal Studies Paper No. 238. Here is the abstract.
Lawyers are given license to suspend what philosophers have called sincerity conditions. We ordinarily take people as being sincere in their speech. They expect us to do so, just as we, when we speak, expect others to take us as being sincere. Lawyers, however, are given license to be insincere. They are trained to be simultaneously truthful and insincere. On the one hand, they are required to tell the truth in the context of legal proceedings. On the other, they are insincere in that they routinely structure their speech to lead others into drawing inferences that will serve the lawyer’s goals, whether or not those inferences reflect a fair assessment of facts or law. This paper looks at the distinction between lying and deception, and finds some moral distinction, but not enough to justify the conduct acceptable by the legal profession on moral grounds. The paper discusses aspects of our psychology that make us vulnerable to the kind of deception practiced by lawyers, and concludes by criticizing American legal education for not imbuing a sense of responsibility in young lawyers that should accompany the license to be insincere. While the article focuses on lawyers working in the American adversarial system, many of the observations and issues apply to lawyers working in other legal systems, as well.
Professor Solan says in part:
Lawyers are given license to suspend what philosophers have called sincerity conditions. We ordinarily take people as being sincere in their speech. They expect us to do so, just as we, when we speak, expect others to take us as being sincere. The assumption of sincerity is generally suspended when we know that a person is speaking on behalf of someone else and taking an assigned position, making lawyers‘ insincere speech a special case of a more general phenomenon. Just as debaters and actors can and should put their own beliefs aside, lawyerly conduct can, in broad terms, be justified by the attorney‘s obligations in the adversarial system, which is often discussed under the rubric of role morality. After all, how can a lawyer represent a party in litigation without advocating for that party‘s position, whatever the lawyer believes?
Not all forms of insincerity are acceptable, however. Lawyers are trained to be simultaneously truthful and insincere. While they may structure their speech to lead others into drawing inferences that will serve the lawyer‘s goals, whether or not those inferences reflect a fair assessment of facts or law, they must not lie. It is acceptable to use cross-examination to direct a jury toward a theory that the evidence supports but which the lawyer does not believe to be true. It is not acceptable, however, for the lawyer to misstate the evidence in a closing argument.
This distinction – between lying and deception by misdirection – is accepted as a skill at which lawyers should become facile. Yet it rests on a shaky moral foundation. People typically have strong intuitions that lying is bad per se, and that that it is better to frame something deceptively than to lie about it. But many moral philosophers do not give much credit to this intuition. A person who is the victim of a deceptive practice generally feels no less violated just because the deception was not accomplished through a bald-faced lie. This essay explores this distinction, on which so much of lawyerly practice is based.
Moreover, the best lawyers are so convincing that they are able to cause their audience to let down their guard and to forget that they are dealing with an advocate. The essay also explores some of the psychology that leads to this sometimes unwise placement of trust. Thus, lawyers can be truthful, insincere, and effective all at the same time. In fact, they must be both truthful and insincere to be effective advocates, because zealous advocacy requires some degree of insincerity, and lawyers are not permitted to lie. This, in turn, explains why it is easy to distrust lawyers while, at the same time, admiring them. As Robert Post observed, lawyers ―are simultaneously praised and blamed for the very same actions.
Hmmm. Sort of like magicians (but less fun, and more expensive)? Download the essay from SSRN at the link, and pay no attention to the person behind the curtain.