Lies & Lawyers

In a provocative lecture last January, George Washington University Law Professor Monroe Freedman posed three ethical riddles for 45 lawyers preparing for criminal practice in Washington, D.C. Asked Freedman:

> "Is it proper to cross-examine for the purpose of discrediting the reliability or the credibility of an adverse witness whom you know to be telling the truth?"

>"Is it proper to put on the stand a witness who you know will commit perjury?"

>-"Is it proper to give your client legal advice when you have reason to believe that the knowledge will tempt him to commit perjury?"

The answer to all the questions, said Freedman, is yes. As it happened, a Washington Post reporter was in the classroom. The story he filed said that the professor had advocated perjury; it was a story that shocked three local federal judges whom Freedman had previously criticized in his capacity as head of Washington's Civil Liberties Union. The judges requested the local Bar Association's grievance committee to investigate Freedman for "unethical conduct"--a preliminary move to possible disbarment.

Deep Conflict. Freedman's case has since become a legal cause celebre across the country. For one thing, it raises a problem in academic freedom: Can a law professor be disbarred for what he preaches in a private classroom as opposed to what he practices in a public courtroom? To Freedman's academic superiors, the answer is clear. Freedman, 38, has just been promoted to full professor and given a raise. Meanwhile, the grievance committee has exonerated him by a vote of 8 to 1. That does not mean that Freedman is out of trouble. The committee report was referred to Federal Judge William B. Jones, who has the power to recommend court action. For two months, Jones has remained silent, and Freedman could still be disbarred.

To defend himself, Freedman is publishing his lecture in the forthcoming Michigan Law Review. He was not prescribing perjury, he says, he was merely discussing conflicts in the U.S. adversary system. In theory, that system produces truth and justice by pitting lawyers in a contest before neutral judges and juries. The defense lawyer is torn between his role as a truth-seeking officer of the court and his duty to fight as hard as possible for his client.

Regardless of his actual guilt, notes Freedman, the U.S. defendant is presumed innocent until the prosecution proves him guilty beyond a reasonable doubt. As a result, the defendant may remain silent--while the jury scrutinizes his lawyer's every word for any hint of doubt as to his client's innocence. In this situation, says Freedman, the lawyer's moral dilemma is compounded by the American Bar Association's 1908 Canons of Ethics. While Canon 22 requires "candor" toward the court, Canon 37 tells the lawyer "to preserve his client's confidences," and Canon 15 commands his "entire devotion to the interest of the client." As Freedman sees it, the moral margin winds up on the side of deception.

Charity & Perjury. The law professor suggests a hypothetical case: "The accused has admitted to you, in response to your assurance of confidentiality, that he is guilty. However, he insists upon taking the stand to protest his innocence." Should the lawyer permit such perjury? Yes, says Freedman. Despite the presumption of innocence, most jurors tend to presume guilt in a defendant who shuns the stand. To keep him off "will most seriously prejudice his case." The lawyer may quit the case, of course, but he may also have to tell the judge his reason--in effect, declare his client guilty. Thus, says Freedman, morality may sometimes require perjury.

Even worse is the dilemma of whether to give sound legal advice that may well tempt the defendant to give false testimony. When the accused confides his guilt in the 1959 bestseller Anatomy of a Murder, for example, his lawyer replies: "If the facts are as you have stated them so far, you have no defense, and you will be most likely electrocuted. On the other hand, if you acted in a blind rage, there is a possibility of saving your life. Think it over, and we will talk about it tomorrow." Is this unethical? Even though perjury may result, says Freedman, "the client is entitled to know this information and to make his own decision as to whether to act upon it."

To Washington's U.S. Attorney David G. Bress, who has written a short rebuttal to Freedman's law-review article, the professor's opinions totally overlook the command of Canon 5, requiring a defense lawyer to use "all fair and honorable means." To Bress, "This can only mean defending without the use of known perjury." In a letter to the Washington grievance committee, on the other hand, University of Pennsylvania Law Professor Anthony Amsterdam defended Freedman's original lecture as "a probing and responsible attempt to answer difficult and intensely practical problems created by our adversary system." Thus far, says Amsterdam, the organized U.S. bar has offered no better answers than "vaporous platitudes called canons of ethics which have somewhat less usefulness as guides to lawyers in the predicaments of the real world than do valentine cards as guides to heart surgeons in the operating room."

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