Author Archives: admin

Creating Space for Lawyers to Be Ethical: Driving Towards an Ethic of Transparency

Ostensibly there is little to connect the harried lawyer facing an ethical dilemma and the frazzled driver at an accident-prone intersection. The lawyer who miscalculates whether a former employer’s noncompete clause bars his client from selling a newly invented device … Continue reading

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Secret Evidence is Slowly Eroding the Adversary System: CIPA and FISA in the Courts

The Bush administration is reportedly the most secretive in United States history. The unprecedented scope of secrecy in intelligence gathering, detentions, decision-making, data collection, and legislative implementation has recently received public scrutiny. Often justified as essential to preserve national security, … Continue reading

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Counseling Organizational Clients “Within the Bounds of the Law”

The principal function of lawyers is to communicate the lawyer’s knowledge of law to the client and apply it to the client’s situation. Thus, every lawyer who has clients, whatever else they do, is a counselor. Two professional rules deal … Continue reading

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Institutional and Individual Justification in Legal Ethics: The Problem of Client Selection

In the second round of the famous Freedman-Tigar debate, Monroe Freedman writes that “[i]t is proper . . . to publicly challenge lawyers to justify their representation of particular clients.” Note the word “particular”—the challenge here is on a case-by-case … Continue reading

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The Corporate Lawyer and ‘The Perjury Trilemma’

This paper represents a thought experiment that takes one of Monroe Freedman’s most fundamental legal ethics ideas and extends it to a current controversy. Professor Freedman’s contributions are many, but none is more significant than his stating—and proposing a solution … Continue reading

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Reconsidering the Corporate Attorney-Client Privilege: A Response to the Compelled-Voluntary Waiver Paradox

“[T]he [corporate] attorney-client privilege is under attack today as never before.” “Privileged information used to belong to the client; now it apparently belongs to the government.” “[T]he extent of the erosion of privilege protections and the level of concern about … Continue reading

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A Double Standard for Lawyer Dishonesty: Billing Fraud Versus Misappropriation

In the 1970s, Monroe Freedman did a great deal of work trying to curb the tendency of the lawyer disciplinary system to go after the wrong people. During this period, Freedman and some other public interest lawyers were charged with … Continue reading

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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 … Continue reading

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A Grand Slam of Professional Irresponsibility and Judicial Regard

Professor Monroe H. Freedman has devoted his professional life to studying and enhancing the professional ethics of lawyers. He has received the American Bar Association’s highest award for professionalism, in recognition of a “lifetime of original and influential scholarship in … Continue reading

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In Praise of Overzealous Representation – Lying to Judges, Deceiving Third Parties, and Other Ethical Conduct

For more than a century, the lawyer’s ethic of zeal has required, and has inspired, entire devotion to the interests of the client, warm dedication in the maintenance and defense of his rights, and the exertion of the lawyer’s utmost … Continue reading

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