My goals are modest. Before I die, I would like to be able to say that my cyber-output on ethics accomplished a few basic things. One of them is a greater public understanding that deceitful statements—you know, like “I did not have sex with that woman,” or my recent favorite, knife-murderer O.J. Simpson saying at his parole hearing, “I’m in no danger to pull a gun on anybody. I’ve never been accused of it. Nobody has ever accused me of pulling any weapon on them”—are lies. Not “technically true,” not “lawyerly phrasing,” but lies. Yesterday one lawyer who should know better incorrectly told his readers than another lawyer who engaged in deceit wasn’t lying. I’m sick of this.
I’m sure most of you don’t know or care, but the sad Miami Marlins, the National League baseball team recently taken over by a group headed by former Yankee shortstop Derek Jeter, has been selling and trading off its best players to pare expenses to the bone. This is a long-term strategy called “tanking,” in which a team rebuilds by playing horribly and getting high draft choices for a few years, eventually building up a young, cheap talent base of a winning team. A team’s fans tend to despise this approach, and Marlins fans more than most, since this is the third mass sell-off in the team’s short and ugly history.
MLB commissioner Rob Manfred appeared on Dan LeBatard’s ESPN radio show yesterday to discuss the most recent recent Miami fire sale. LeBatard asked Manfred directly if he was “aware of Jeter’s plan to trade players and slash payroll.” Manfred ducked and weaved, and said, “We do not approve operating decisions by ownership, new ownership, current owners or not, and as a result the answer to that question is no.”
LeBatard called this a lie, responding, “You can’t tell me you’re not aware of this…were you aware of this?” Manfred then said, “No, we did not have player-specific plans from the Miami Marlins or any other team . . .” He also said that the league did not see a payroll plan from the Marlins “until two days ago.”
Yet the Miami Herald reported after the interview:
A source directly involved in the Marlins sales process, after hearing the Le Batard interview, said, via text: “Commissioner said was not aware of [Jeter] plan to slash payroll. Absolutely not true. They request and receive the operating plan from all bidders. Project Wolverine [the name for Jeter’s plan] called on his group to reduce payroll to $85 million. This was vetted and approved by MLB prior to approval by MLB. Every [Jeter] investor and non investor has the Wolverine financial plan of slashing payroll to $85 million. Widely circulated.”
Here NBC baseball blogger Craig Calcaterra, formerly a practicing attorney, and thus accorded some credibility on such topics, wrote,
This is where Manfred’s legal training comes in, of course. Note his use of the phrase “player specific plans.” Manfred — once he realized he was denying knowledge of the Marlins’ plans to slash payroll — inserted that phrase to give him technical veracity. It can and should be read as “we did not know, specifically, that the Marlins planned to trade Giancarlo Stanton, Dee Gordon and Marcel Ozuna.” Which is meaningless of course, because (a) he knew that the Marlins planned to slash payroll to $85 million; and (b) the only way to do that would be for the Marlins to trade away Stanton, Ozuna and likely Gordon. Manfred clearly wanted to give off the impression that the league had no idea of what Sherman and Jeter planned to do, but he clearly knew. Is it a lie? I suppose we can argue the technicalities of that. It was certainly, however, an attempt to mislead. It’s also quite possible, if the Miami Herald report is accurate, that his comment about not seeing a Marlins payroll plan “until two days ago” is a lie, but that probably depends on how he’d define “payroll plan.”
What Craig is describing, or trying to and failing, is deceit. Deceit is when a statement that is literally accurate is employed in a context where the meaning of the statement will be misunderstood by the listener or reader, and encouraging that misunderstanding is the reason the statement is worded the way it is. Deceit is not lawyerly, and Manfred’s legal training cannot take the blame for his lies. Lawyers are not trained to lie. They are trained NOT to lie: I know. I train them. Nor can legal training excuse the fact that Craig, also a lawyer, writes that “I suppose we can argue the technicalities of that.” Not when the statement is made by lawyers, you can’t. For lawyers are specifically told by their ethics rules that deceit is unethical, and that it is misconduct to engage in it in the practice of law. Here’s a typical example, the ABA’s version:
Maintaining The Integrity Of The Profession Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
This is in the rules because dishonesty, fraud, deceit and misrepresentation are all forms of lying, and lawyers are not supposed to lie. True, Manfred could not be disciplined for breaching this rule while acting as Commissioner of Baseball, because that’s not the practice of law. Still, as a lawyer, he is charged with knowing what lying is, whether he’s doing it in a forum where he can get away with it or not. Calcaterra, meanwhile, is an analyst, and if there is any point to having a lawyer writing about sports, it is to be able to knock down popular misconceptions regarding issues of right, wrong, legal, illegal, and what words mean. Too many people, way, way, way too many, including elected officials, wrongly believe that if they can deceive someone by clever phrasing, they can honestly say they weren’t lying. In reality, the wielders of deceit are the worst kind of liars, for they not only deliberately deceive but do so by taking advantage of the listener’s trust and failure to submit every statement to a thorough examination of alternate meanings.
Macbeth is perhaps literature’s most prominent victim of deceit: The Witches tell Macbeth that he cannot not be defeated in battle until “Burnam Woods come to Dunsinan,” and also that he could not be killed by “a man of woman born.” Poor Mac takes these statement to mean that he cannot be defeated or killed, since woods don’t travel (especially up hill!) , and there are no men not born of women. Never trust witches. They deliberately wanted him to think that. But soldiers can use cuttings from the woods as camouflage for an attack, and babies delivered via Caesarian surgery are not technically “born of woman.” Gotcha!
The witches lied to him, just like Manfred lied, just like Clinton lied, just like O.J. lied.
And people like Craig Calcaterra who suggest that this kind of lie is any less than a lie or any better than a lie just encourage, facilitate and enable liars.