Lawyers “plead in the alternative.” (“There is no evidence that my client shot the man, but, if you think he did, it was self-defense.”) Most people have a problem with such double-talk. Most people overlook that, in a pleading — a legal complaint or an answer to a legal complaint — a lawyer is simply invoking every possible claim or defense from the facts as she knows them at the time. Often, the lawyer does not have all of the facts when she is required to plead her client’s case. She must preserve every possible claim and every possible defense.
But, to many people, complexities like this make lawyers appear deceitful and two-faced.
I find this ironic and unfortunate because, as a group, I believe, lawyers are some of the most honest people in our society, if only because their livelihoods, their licenses, their professional status, are all closely tied to their circumspection, their thoughtfulness, and their sense of right and wrong. “Candor Toward the Tribunal” is an ethical obligation and, in my 20+ years of practice, I have seen this obligation observed a great deal more often than I have seen it ignored or abused. There are, of course, exceptions.
Michael J. Riehm is a suspended Minnesota lawyer. I have discussed his almost operatic misconduct in earlier posts. In his discipline proceedings, Mr. Riehm admitted his wrong-doing “without equivocation.” Later, he took the position that this was a “conditional admission,” that he only admitted his wrong-doing in return for the promise of specific discipline (a minimum 5-year suspension).
But the Minnesota Supreme Court rejected this position holding that:
A conditional admission to allegations of professional misconduct violates the principles of truth and candor fundamental to the purpose of attorney discipline
proceedings. By conditioning an admission on receiving a particular form of discipline, an attorney creates the perception that the admissions made may or may not be truthful.To allow the practice of conditional admissions would, therefore, cast doubt on the integrity of the attorney discipline process.
It seems slightly puzzling to me that, after pointing out that Riehm cannot condition his admission on receiving the stipulated penalty, the Minnesota Supreme Court went on to impose the stipulated penalty. I suppose the point was to get the word out to Minnesota lawyers facing discipline that having your cake and eating it too is acceptable in pleading for your clients but not when it comes to pleading your own disciplinary case.