Category Archives: Articles

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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Legal Ethics and the Constitution

Thank you for inviting me to this wonderful conference. I learn so much from these conferences. And I enjoy meeting the leaders in the field of legal ethics. The one person I miss greatly, of course, is Sam Dash. We … Continue reading

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A Cautionary Tale: Fiduciary Breach as Legal Malpractice

Lawyers, judges, and legal scholars commonly refer to lawyers as fiduciaries, generally meaning agents who bear special and onerous duties toward clients. What is often missing from the incantation is a settled notion of the legal content of the concept … Continue reading

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The Triage Trilemma

Everybody is going to start this way, but I have the benefit of being the second speaker so it hasn’t gotten old yet. It is a tremendous honor to be speaking at a conference based on the works of Monroe … Continue reading

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