Category Archives: Articles

Diversity and the Law

Thank you Dean Eric Lane for inviting me to deliver this year’s Howard and Iris Kaplan Memorial Lecture. The goal of this lecture series is to bring jurists to address the community on important and timely legal issues. A worthy … Continue reading

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Forfeiture-by-Wrongdoing and Faretta: Reaffirming Counsel’s Vital Role When Defendants Manipulate Competing Sixth Amendment Representation Rights

Just a few weeks before his trial on charges of mail fraud and conspiracy, criminal defendant John Paul Hansen filed a motion with the federal district court presiding over his case requesting “some form of hybrid counsel.” Hansen requested to … Continue reading

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Duty of Outrage: The Defense Lawyer’s Obligation to Speak Truth to Power to the Prosecutor and the Court When the Criminal Justice System Is Unjust

For decades, scholars, lawyers, and judges have spotlighted what is now recognized as a permanent state of crisis in the system of public defense in the United States. More than fifty years after the watershed decision in Gideon v. Wainwright … Continue reading

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Hard Questions and Innocent Clients: The Normative Framework of The Three Hardest Questions, and the Plea Bargaining Problem

In almost any area of legal counseling and advocacy, the lawyer may be faced with the dilemma of either betraying the confidential communications of his client or participating to some extent in the purposeful deception of the court. What makes … Continue reading

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Do Prosecutors Really Matter?: A Proposal to Ban One-Sided Bail Hearings

The inspiring story of Gideon v. Wainwright gives lawyers and law students alike the impression that indigent people will be provided with defense counsel when they are charged with a crime. What few people realize, however, is that in about … Continue reading

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Monroe Freedman and the Morality of Dishonesty: Multidimensional Legal Ethics as a Cold War Imperative

Well before the turn of the last century, Monroe Henry Freedman’s place in the history of legal ethics had been established. Often, he would be introduced by reference to professional honors. Audiences would be told, for instance, that he had … Continue reading

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Candor in Criminal Advocacy

[I]t is precisely when one tries to act on abstract ethical advice that the practicalities intrude . . . . – Monroe H. Freedman Monroe Freedman’s 1966 article on the three hardest ethics questions for criminal defense lawyers has lost … Continue reading

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In Memory of Monroe Freedman: The Hardest Question for a Prosecutor

This Article honors Monroe Freedman’s iconic piece on the hardest questions for a criminal defense attorney by posing the same question for prosecutors. What is the hardest question for a prosecutor? Even this is a hard question. The thousands of … Continue reading

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Monroe Freedman: Prophet of Biblical Justice

Commentators often assert that the overriding ideal behind Professor Monroe Freedman’s distinctive view of legal ethics was individual autonomy. Professor Freedman’s provocative Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, and his even more provocative answers, have … Continue reading

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The Prosecutor’s Ethical Duty to End Mass Incarceration

Of the many crises in our criminal justice system, none is more critical than the problem of mass incarceration. The United States has the highest incarceration rate in the world, with over 2.2 million people in prison or jail and … Continue reading

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