An investigative report by Bill Vlasic of the New York Times (published on the front page of the paper’s Sunday edition this week) suggests that in-house lawyers for General Motors counseled the company to keep from the public the fact that the company was investigating claims that defects in its ignition switches had caused serious accidents. On the surface, the report has the appearance of casting the lawyers as unethical scoundrels, if not outright criminals.
And it may well be that, like some of the attorneys involved in the Watergate scandal that toppled the presidency of Richard Nixon, the GM attorneys were involved in gross acts of corruption, at the least, and violations of criminal statutes, at the most. But a closer reading of Mr. Vlasic’s report also suggests an alternative interpretation, one that would qualify the attorney’s advice as ethical, albeit frustratingly so under the circumstances.
Before I engage in any deeper conjecture on the GM case and the role of GM’s attorneys in it, let me provide a brief primer on the ethical responsibilities of a lawyer in counseling clients. The following summary of an old case from my own practice will suffice as an example.
Joe Smith (not his real name) was accused by his then wife of spousal abuse in a divorce action in which I was representing him. The particular relevance of his wife’s claim went to whether Joe would be permitted visitation rights with his daughter, whom he loved dearly. Joe told me that he had never struck his wife or in any other way injured her physically but that they had often had serious shouting matches during which he occasionally hit a table top with his hand to relieve some of his anger. As we prepared for the testimony he would give at the court hearing to determine whether he would be permitted visitation with his daughter, he asked me how he should explain the episodes he had described to me.
I told him not to offer them unless he was asked about them, but that if he were, to answer truthfully. My view of the matter was that Joe was under no obligation to volunteer the information he had shared with me about the way he “relieved” the anger he felt during the shouting matches with his wife. But I also expected that opposing counsel would grill him on his wife’s version of the facts, and I wanted Joe to understand his obligation to tell the truth when under oath.
As it turned out, Joe was grilled by the wife’s attorney. He answered with the same factual description he had given me. I was then able to get the wife to admit that she had never been struck by Joe, but had felt threatened by his displays of anger. The judge awarded liberal visitation rights to Joe, seemingly unconvinced that he was a threat to either his wife or his daughter.
My point in relating this story is that an attorney has a fine line to walk in counseling a client who is accused of wrong-doing. With Joe I think I walked the line properly. I counseled him not to volunteer that he had hit the table on occasion in his arguments with his wife but to admit that he had done so if he was questioned in such a way as to require that honest answer.
When he was asked by the wife’s attorney, the questioning was aggressive and hostile, and Joe’s answers, calmly delivered, made him appear the victim in the give and take with the opposing attorney. Then, when I questioned the wife, I used the opposite tact, treating her respectfully, but gently suggesting that what she had felt was the fear of being struck, rather than any actual physical assault. She reacted defensively, claiming adamantly that he had indeed struck her often and viciously. In that testimony, she went beyond what she had said in her deposition, which I pointed out in my cross examination. The judge, viewing the demeanor of both witnesses, chose to view Joe sympathetically and awarded him visitation rights with his daughter.
Now let’s turn back to the GM case. The facts are now clear to this extent: GM executives were taking seriously accusations that defects existed in the ignition switches in several of their models. These defects had caused accidents with injuries and possibly deaths attributable to them. GM’s in-house lawyers, according to the Times’ report, counseled the company to keep news of its internal investigation from the public.
Is this legal counsel akin to my representation of Joe Smith? There are definite similarities, albeit there are also some significant differences. The similarities start with the counseling to volunteer nothing until asked. That kind of advice cannot be unethical unless the withholding of the information would be an illegal act in and of itself. That detail has yet to be determined in the GM case.
The major difference in my case and GM’s is that GM was withholding information that may have prevented further accidents. Let’s assume that was the case. Let’s assume further that the GM attorneys knew that was the case. Did they then have an obligation to advise their client to reveal to the public that the internal investigation into the switches was ongoing?
More facts will need to be uncovered to answer that question. Attorneys cannot ethically counsel their clients to violate the law or to engage in actions that have the potential to violate the law. They can (and must) offer their clients the best advice as to how to satisfy their clients’ needs without violating the law.
And so the real question turns on whether GM had a legal obligation to advise the public that it was investigating the possibility of an ignition switch defect when its attorneys counseled it not to so advise the public. If GM did have that legal obligation, then its attorneys acted unethically in giving the company the advice they did. If not, then the attorneys served their client ethically and well, consistent with the existing law.