Our profession is steeped in clichés, anachronisms, and intentionally obtuse rules and precepts parading as simple truths. Lawyers delight in exploiting, if not fabricating, ambiguities, loopholes, and exceptions. Add that to the misunderstood adage that lawyers are zealous advocates for clients, and it is not at all surprising that mischief ensues.

Everyone knows what a “country lawyer” looks like.

The phrase “zealous advocate” does not actually appear in the Michigan Rules of Professional Conduct (MRPC). Rather, under Rule 1.3 addressing diligence, the commentary notes:

A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.

Those seeking to justify out-of-bounds behavior apparently miss the very next sentence:

However, a lawyer is not bound to press for every advantage that might be realized for a client.

Various other rules define and stress the constraints upon an attorney’s advocacy, whether it would be beneficial to the client’s interests or not. I commend to you in particular “Preamble: A Lawyer’s Responsibilities,” which follows MRPC Rule 1.0.

One of the few bright lines in the rules is a prohibition against lying. MRPC Rule 3.3 prohibits misrepresentations to a tribunal and Rule 4.1 states that “a lawyer shall not knowingly make a false statement of material fact or law to a third person.” Rule 8.4 addresses misconduct by lawyers and, according to subsection (c), it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

So that covers lying. But what about the more generalized spewing of bull(excrement)?¹

In 1986, philosopher Harry G. Frankfurt penned an essay “On Bullshit” and turned it in to a book in 2005.² In the book, he makes a distinction between “bullshitters” and liars. He concludes that bull(crappers) are more insidious: they are more of a threat against the truth than are liars. When asked why he decided to focus on bull(poo), he explained:

Respect for the truth and a concern for the truth are among the foundations for civilization. I was for a long time disturbed by the lack of respect for the truth that I observed bullshit is one of the deformities of these values.³

The dominant distinction between a liar and a bull(no. 2’er) is the knowing misrepresentation of facts. “Frankfurt paints the bullshitter as an amoral person, not concerned about whether what he says is true or false. Thus, the bullshitter is not a liar because the liar must say something he believes is false, and the bullshitter does not bother himself with such concerns.”⁴ At the same time, “it remains true that he is also trying to get away with something”⁵ and “[a] quintessential feature of bullshit ... is to make false or deceptive statements in order to sow confusion, obscure the truth, or bluff through a difficult situation.”⁶

It is impossible for someone to lie unless he thinks he knows the truth. Producing bullshit requires no such conviction. A person who lies is thereby responding to the truth, and he is to that extent respectful of it. [...] For the bullshitter, however, all these bets are off: he is neither on the side of the true nor on the side of the false. His eye is not on the facts at all, as the eyes of the honest man and of the liar are, except insofar as they may be pertinent to his interest in getting away with what he says. He does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose.⁷

The law has not been immune to the rise of bull(droppings). Scholars have noted that a bull(deucing) lawyer “may be a more insidious threat to the rule of law and the public’s confidence in the justice system than a lawyer who tells a lie.”⁸ Yet the existing rules are not particularly focused on bull(oney). MCR 2.109(E)(5) provides that an attorney signature constitutes a certification that “to the best of his or her knowledge, information, and belief formed after reasonable inquiry, the document is well grounded in fact,” but that covers only a portion of an attorney’s potential use of bull(caca) and, in any event, judges rarely invoke the rule and generally tend to deride an attorney asking for sanctions more than the putative wrongdoer. Indeed, the accused bull(plopper) will often retort that they were being sincere and respond with self-righteous denials. But, as Frankfurt concluded, “sincerity itself is bullshit” if used to justify behavior untethered to a concern with truth.⁹ Yet, in popular culture and, I dare say, amongst many attorneys and certainly clients, there is admiration for the good bull(brown trouter), although this appreciation misconstrues bull(pucky) as a species of rhetoric when, in fact, it is its antithesis.¹⁰ The motivations for and cultural acceptance of bull(guano) far outweigh the institutional safeguards.

Which brings us back to the Rules of Professional Conduct and their admonition that as “public citizens,” lawyers owe duties beyond the pecuniary or the client — we owe duties to the improvement of law and administration of justice. While being on the receiving end of bull(scat) that, against all good logic and the facts, sways a judge or jury in a particular case is immensely frustrating, it also has long-term deleterious consequences.

Brandolini’s law, also known as the “bullshit asymmetry principle,” is an internet adage coined in 2013 that emphasizes the effort of debunking misinformation in comparison to the relative ease of creating it in the first place: The amount of energy needed to refute bull(fudge) is an order of magnitude bigger than that needed to produce it.¹¹ That certainly rings true with regard to legal bull(dookie) and speaks to the long-term negative effects it has on justice, the justice system, and our citizens’ belief in the fairness of that system.

While the truth is sometimes elusive, it must be what we strive for. As Clarence Darrow, perhaps borrowing a line from Aristotle, quipped, “The pursuit of truth shall set you free — even if you never catch up with it.”¹², In this sense, perhaps our vision of justice as a blindfolded woman holding equally balanced scales no longer applies. Rather, consider justice as she appeared in “Gulliver’s Travels” — a statue which had no blindfold and which, significantly, had eyes in the back of her head.¹³ Spotting and calling out bull in all its forms is a necessity if we wish to preserve and reinforce belief in our courts.