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 an ethical question “hard”? In his classic article, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, Monroe Freedman began by suggesting that a hard ethical question arises where a lawyer must choose between betraying his client’s confidences and deceiving the court. As that article and Freedman’s other academic work make clear, however, the conflict between confidentiality and candor is only one source of hard questions. In Freedman’s scholarship, a “hard” question arises where any answer to that question permits a lawyer to pursue a moral value but also requires another moral value to be sacrificed. The question is hard because it places moral values in irreducible conflict. The lawyer has no unambiguous response, morally speaking; whatever she chooses, she will do both right and wrong.