Liars Never Prosper

The late Monroe Freedman, a true dean of the ethics bar, wrote a controversial article in 1966 asking what he described as the “three hardest questions” for criminal defense lawyers: (1) is it proper to cross-examine for the purpose of discrediting the reliability or credibility of an adverse witness whom you know to be telling the truth; (2) is it proper to put a witness on the stand when you know he will commit perjury; and (3) is it proper to give your client legal advice when you have reason to believe that the knowledge you give him will tempt him to commit perjury? Freeman answered all three questions in the affirmative, prompting such outrage that Warren Burger, then chief judge of the U.S. Court of Appeals for the D.C. Circuit and soon to be the chief justice of the U.S. Supreme Court, tried to have him disbarred. Watching our president-elect in the days since his win started me musing on our duty as lawyers to seek truth and use our skills to promote justice while still serving clients’ and society’s best interests.

Freedman’s analysis—which demanded lawyers assist the client in each hypothetical instance, even in view of the obvious moral wrongness of such conduct—posited that a greater interest in client autonomy was served when the lawyer adopted and blindly promoted the client’s cause, even while believing the client is factually guilty, is lying, and that assisting him or her is perpetrating a fraud on the court. Modern thinkers would reach a different conclusion on all three questions, and would argue that there are better ways to serve the overarching concerns Freedman recognized than by lying and cheating.