Monroe Freedman’s Solution to the Criminal Defense Lawyer’s Trilemma is Wrong as a Matter of Policy and Constitutional Law

Monroe Freedman has argued, most recently in the third edition of Understanding Lawyers’ Ethics, co-authored with Abbe Smith, that criminal defense lawyers have a “trilemma” because the rules of their profession give them potentially contradictory instructions. First, competence requires lawyers to seek all information that can aid a client’s matter. Second, lawyers have a duty of confidentiality that generally forbids them to use a client’s information except for the client’s benefit. Third, lawyers have a duty of candor to the court that may require them to reveal a client’s confidential information in order to prevent or correct fraud on the court (which perjury would be). Freedman believes that these three obligations cannot always co-exist, and that is certainly true. Sometimes, a lawyer will have to sacrifice one obligation to fulfill another obligation. This trilemma is not limited to criminal defense lawyers, but Understanding Lawyers’ Ethics addresses only the criminal defense lawyer. Freedman argues that where the lawyer is defending a person accused of a crime, the ethics rules should subordinate the third obligation, candor to the court, to the other two obligations. The upshot is that if a defense lawyer cannot dissuade a client from giving false testimony and cannot avoid aiding the perjury by getting the court to let him withdraw from the matter, ethics rules should allow the lawyer to introduce the client’s false testimony in the usual way and to argue it in summation to the jury. Freedman would not, however, allow the lawyer to prepare the client to give the false testimony by, for example, rehearsing questions in advance or suggesting how the client might most persuasively answer them. Nor presumably could the lawyer help the client anticipate and respond to cross-examination about the planned perjury. The client would take the stand cold. Freedman would also allow the criminal defense lawyer to introduce the perjury of persons close to the defendant. A spouse, partner and parent are specifically mentioned. Children and siblings are not. Freedman thereby limits his solution to the trilemma by permitting the lawyer to introduce and argue the perjury. Other frauds on a court, for example, introducing a false document, are not mentioned. Under Freedman’s solution, the lawyer who knowingly elicits perjury could not be disciplined for doing so, nor presumably prosecuted, but the witness who knowingly lies would still be exposed to a perjury prosecution or to a sentence harsher than he might otherwise have received. Where the perjury is discovered only after the client testifies, Freedman would allow a lawyer to argue it in summation as discussed below.

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