About Robert Angyal SC

Sydney, Australia barrister (trial lawyer) and mediator

Analysis of apologies – and how to spot a fake apology – especially an insult-and-justification-masquerading-as-an-apology

Good mediators think a lot about apologies because they are always searching for things that a party can contribute to the settlement “pie” that may not cost that party much (or anything) but nonetheless have value in the eyes of the party receiving them. I have mediated disputes in which a party viewed an apology from the other party, plus a promise to take remedial action, as more important than a monetary settlement. That makes it important to be able to distinguish between a real apology and a fake apology.

What is an apology? You have to be able to recognise a real apology before you can detect all the fake ones out there. On analysis, there seem to be several essential ingredients in an apology: 

  1. An acknowledgment of responsibility for an act that caused harm: “I ran over your cat.” Some “apologies “ don’t even extend this far, e.g., “I’m so sorry that your cat was run over.” The presence of the passive voice should be a red flag to you, indicating a probable phony apology, because it does not attribute responsibility to anyone.
  2. An acceptance that the act that was done was wrong: “It was wrong of me to run over your cat – I shouldn’t have been speeding down the driveway.” Many “apologies” don’t extend this far but, instead, merely state that the apologiser is sorry that the other party has been injured, without either accepting responsibility for the act that caused the harm, or acknowledging that it was wrong to have done the act, e.g.“I am so sorry that you are upset at your cat having been run over. Note, again, the use of the passive voice to avoid attributing responsibility to anyone.
  3. An apology for having done the act that was wrong and caused harm: “I apologise for running over your cat.
  4. A request for forgiveness: “Please forgive me for running over your cat.” This is probably not an essential ingredient of an apology. But it not only powerfully emphasises the apologiser’s acceptance that what they did was wrong but also – because the apologiser feels the need to be forgiven – elevates the person to whom the apology is made into the morally powerful position of being able to dispense or withhold forgiveness.
  5. A promise to take remedial action or an assurance that remedial action has already been taken: “I’ve installed speed humps in the driveway so that, in future, I’ll never go fast enough to run over a cat.” Again, this is not an essential ingredient, but it powerfully reinforces the acceptance of responsibility, reassures the injured person that it will not happen again and, possibly, gives them hope that, because the suffering they encountered will not be inflicted on them again, or on anyone else, they have not suffered in vain. It seems to be particularly important in medical negligence cases.

So, a full 1+2+3+4+5 apology is: “I ran over your cat. It was my fault – I was speeding down the driveway. I apologise from the bottom of my heart. To make sure it never happens again, I’ve installed speed humps in the driveway. Please forgive me.“ 

Interestingly, the legal definition of “apology” in New South Wales does not go nearly this far. Section 68 of the Civil Liability Act 2002 (NSW) defines “apology” this way:

In this Part – apology means an expression of sympathy or regret, or a general sense of benevolence or compassion, in connection with any matter whether or not the apology admits or implies an admission of fault in connection with the matter.” (emphasis added)

We might regard the Civil Liability Act s. 68 definition as articulating the bare minimum necessary to constitute an apology, while contemplating that some apologies will go further by expressly or impliedly admitting fault. Section 69 of the Act then provides that an apology does not constitute an admission of fault or liability, is not relevant to the determination of fault or liability, and is not admissible in any civil proceedings as evidence of fault or liability.

Section 20 of the Defamation Act 2005 (NSW) makes similar provision about the effect of apologies in defamation proceedings, but that act does not define “apology“, nor does the Interpretation Act 1987 (NSW).

Some apparent apologies do not even go as far as the s. 68 bare minimum. Here is part of the statement posted by the Australian Broadcasting Commission on 31 May 2021 in relation to the discontinance of defamation proceedings brought against it and one of its reporters by the former federal Attorney-General Christian Porter:

The ABC did not intend to suggest that Mr Porter had committed the criminal offences alleged. The ABC did not contend that the serious accusations could be substantiated to the applicable legal standard – criminal or civil. However, both parties accept that some readers misinterpreted the article as an accusation of guilt against Mr Porter. That reading, which was not intended by the ABC, is regretted.” (emphasis added)

One can assume that the terms of this statement were the subject of some hard negotiations between the parties’ legal teams and that they represent the result of compromises by both parties. The ABC says that it did not intend to accuse Mr Porter of being guilty of criminal offences … but accepts that what it said was capable of being misinterpreted as doing that.

But note the use of the passive voice, which makes it impossible to attribute the expression of regret to anyone in particular. The ABC did not say that it regretted the misinterpretation. Instead, it said “that reading … is regretted“. By whom, you ask? Was this “an expression of regret” by the ABC within the meaning of s. 68?

If you start looking hard at “apologies”, armed with the criteria in this post, you will be amazed at how few actually are genuine apologies. Be alert for the most pernicious of all fake apologies, the very common insult-and-justification-masquerading-as-an-apology. This takes the form, “Some people were so foolish as to take offence at my comments last week on [insert subject matter] and I’m really sorry about that.” Many of Donald Trump’s comments about his outrageous statements took this form.

This sort of fake apology has none of the ingredients of an apology. It does not contain an admission that the speaker’s comments were offensive, nor an apology for giving offence by making the comments. Instead, it insults the people who found the comments offensive by saying that they were foolish to have taken offence. It then redoubles the insult by saying that the speaker is really sorry that those people are so foolish – in other words, they are so foolish that they deserve pity for their foolishness. And, finally, note that the statement actually amounts to a justification of the comments – by saying that only really foolish people would have found them offensive – rather than an apology for making the comments.

So now that your fake-apology-antennae are finely tuned, you are ready to go forth, detect and expose all those fake apologies out there!

For further legal analysis, see Robyn Carroll, Apologies as a Legal Remedy, (2013) 35(2) Sydney Law Review 317.

Robert Angyal SC

17 July 2021

Why are US lawyers allowed to lie while negotiating?

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Robert Angyal SC and Nicholas Saady

The late William Rehnquist, when Chief Justice of the US Supreme Court, gave many speeches at law schools. For a while, to lighten the tone, he started each speech with a ‘lawyer joke’.

Example: What is the difference between a bad lawyer and a good lawyer? Answer: A bad lawyer makes a case drag on for years. A good lawyer makes it last even longer. Example: What looks good on a lawyer? Answer:  A Doberman.

But Rehnquist abandoned his practice when he discovered two things: First, the lawyers in the audience did not think the jokes were funny. Second, the non-lawyers in the audience did not realise they were jokes.[1]

Rehnquist’s discoveries illustrate a problem for the U.S. legal profession: Public distrust.  A 2020 Gallup poll found that only 3% of people surveyed found lawyers’ honesty and ethics to be “very high”, and only 18% found them to be “high”.[2] This public distrust is a perennial source of concern to the national legal body, the American Bar Association.  Its journal regularly features articles such as “What can lawyers do to combat their bad PR?”, which suggests that “carefully executed social media presences” can “build trust, erasing one lawyer joke at a time”.[3]

Rather than carefully curating  lawyers’ social media profiles, we suggest that a better approach to building public trust in lawyers would be revocation of  the American Bar Association rule that allows lawyers to lie when negotiating.  Yes, astonishingly, a disciplinary rule promulgated by the ABA (Model Rule 4.1(a)) allows lawyers to lie about non-material facts when negotiating on behalf of a client.

The very existence of that rule seems problematic. When you look at its legal meaning (or lack of), it becomes even more problematic.  Despite several attempts to define and limit the circumstances in which the rule allows US lawyers to lie, its meaning remains unclear.

One such attempt was a formal ABA ethics opinion, five single-spaced pages long, with 22 footnotes.[4] (The irony inherent in issuing an “ethics” opinion defining when lawyers can legally tell lies apparently was lost on the ABA.)  The perceived need for such a detailed guide to interpreting a one-sentence rule was itself an acknowledgment of the difficulty of interpreting it. We analyse the ABA’s opinion in a just-published law review article and conclude that it contains no coherent statement of principle and leaves the reader no wiser about what the rule means. Other attempts have been similarly futile — even failing to clarify the meaning of the most basic concept on which the rule is predicated: The distinction between material and non-material facts.

The justification for allowing US lawyers to lie about non-material facts seems to be that the recipients of the lies will not be harmed by them — because they will not rely on them, or not regard them as communicating facts. But if legally permissible false statements are trivialised to this extent, why bother making them? Better to tell the truth all the time and gain a reputation for trustworthiness.  On the other hand, if more substantive false statements are allowed by the rule, how can it possibly be justified?

This, we conclude, is an inescapable dilemma generated by a rule permitting lawyers to tell lies. The dilemma explains why all attempts to date to explain the meaning of the rule have failed.  It also explains why any further attempts would be equally futile.

Allowing lawyers to lie affects the image of the profession detrimentally and intensifies public distrust of it. It does enormous damage to the credibility and the moral authority of lawyers. It is damaging in another way also. If you know that the lawyer for your opponent is allowed to legally lie to you during a mediation in some, undefined, circumstances, the only prudent thing to do is to assume they are lying all the time and to disbelieve everything they tell you. So the rule not only generates public mistrust of lawyers, but also makes negotiations highly inefficient, because the parties cannot take anything they are told at face value.

The good news is that there is a straightforward solution to the problems raised in this post: Require lawyers to tell the truth, all the time (which is the position in Australia).  Rather than advocating PR to improve the public image of lawyers, the ABA should heal this self-inflicted wound by revoking Model Rule 4.1(a).

Robert Angyal SC is an Australian barrister and mediator and was admitted in the District of Columbia for 40 years. Nicholas Saady is a New York and Australian lawyer and mediator. Their law review article “Legal Lying? Comparatively Analyzing US and Australian Lawyers’ Obligations of Truthfulness in Mediation” has just been published in [2021] 21 Pepperdine Dispute Resolution Law Journal 355 (Issue 2).

[1] Marc Galanter, Lowering the Bar: Lawyer Jokes & Legal Culture (The University of Wisconsin Press 2006) at p. 3.

[2] Gallup, “Honesty/Ethics in Professions | Gallup Historical Trends” (2020) https://news.gallup.com/poll/1654/honesty-ethics-professions.aspx.

[3] Danielle Braff, “What can lawyers to combat their bad PR?”, ABA Journal (February 1, 2020) https://www.abajournal.com/magazine/article/many-people-ignore-their-legal-needs-because-they-dont-trust-attorneys-what-can-lawyers-do-to-combat-their-bad-pr.

[4] ABA Committee on Ethics and Professional Responsibility, “Obligation of Truthfulness in Negotiation and Mediation”, Formal Opinion 06-439 (2006).