Osler's Razor

This week Marion Jones was sentenced to six months in prison for lying about her steroid use. Notably, she wasn't convicted of using steroids; rather, like Martha Stewart and others, she is going to prison for telling lies. The intriguing thing about these cases to me is that the target of the investigation didn't have to say anything at all; they could have remained silent. They certainly knew that was their right.

But, it seems, we have this strong human need to "explain." I saw it over and over again as a prosecutor-- people who didn't have to talk, were told they could remain silent, who signed a document saying they understood that-- then talked for hours. It was never a good move, not once.

Being guilty is just one reason to not explain; sometimes there are others. One important reason for lawyers in some cases not to explain is the need to keep confidences. I worry that some of our students undervalue this; they have been raised in a culture awash with information about everything and everyone, and sometimes think that if they don't get an answer to every question the person withholding information is in the wrong (when sometimes the opposite is true). As lawyers, this expectation that all be told will run up against important ethical rules and principles, especially the need to keep attorney-client and some other communications confidential.

Moral considerations aside, a major problem with not keeping confidences is that you prove yourself unworthy to receive them, which can be fatal to a legal career. Law, and a principled life, sometimes demands that you keep a secret, even when some will think it unfair. It is one kind of toughness that is too little heralded, but still often valued in the rough-and-tumble of real life, within and without the practice of law.