Sunday, March 01, 2015

Monroe H. Freedman (April 10, 1928 – February 26, 2015)

I’m saddened by the death of Monroe Freedman. 

“For 42 years as a professor and dean at Hofstra Law, Monroe instilled in thousands of students the responsibility of lawyers to zealously represent their clients and also to stand for social justice.

Nationally he was known as the father of modern legal ethics for his successful effort to introduce the field into the mainstream of the legal academy. For this, he received the American Bar Association’s highest award for professionalism, in recognition of ‘a lifetime of original and influential scholarship in the field of lawyers’ ethics,’ and his peers have called him ‘the conscience of our profession.’”

From today’s obituary notice in the The Washington Post:  

“Monroe H. Freedman, scholar of legal ethics and civil liberties, dies at 86” 

[….] Mr. Freedman became a nationally renowned expert on civil liberties while serving as a law professor at George Washington University from 1958 to 1973 and later at Hofstra University in Hempstead, N.Y.

He became even better known for his contributions to the emerging field of ethics, in which he addressed the sometimes conflicting responsibilities of a lawyer toward clients and toward the court. ‘He was a towering figure in the legal academy and especially in legal ethics,’ Georgetown University law professor Abbe Smith, who taught alongside Mr. Freedman and published books with him, said in an interview. ‘He was universally regarded as the founder of modern legal ethics as an academic field.’

Mr. Freedman wrote textbooks on the subject, and his landmark 1966 article, “The Three Hardest Questions,” remains a mainstay of the study of legal ethics to this day. The article, which appeared in the Michigan Law Review, outlined three central obligations that every defense lawyer is bound to uphold: understanding all the facts of a case; preserving the confidentiality of a client; and being candid and forthcoming to the court.

There are times, however, when these legal principles can be in conflict, producing what Mr. Freedman called a ‘trilemma.’ The trust between a lawyer and client, he argued, is a fundamental cornerstone of the legal system and is essential to discovering the truth. But what is the lawyer’s responsibility if a client says he will not testify honestly on the witness stand?

Which legal obligation is more important — confidentiality or candor? Mr. Freedman suggested that a defense lawyer’s primary duty is to be his client’s best advocate. The judicial system, after all, rests on the presumption that defendants are innocent unless the prosecution can prove otherwise. A defense attorney’s first responsibility, in other words, is to maintain the confidence of his client’s private discussions, not to declare the client guilty.

Lawyers have wrestled with such thorny questions for centuries, Smith said, but until Mr. Freedman’s groundbreaking study, ‘no one sat down and thought about these things and wrote them out.’ [….]

While teaching at GWU’s law school in the early 1960s, Mr. Freedman chaired the American Civil Liberties Union of the Nation’s Capital, advised civil rights groups and was an early champion of women’s rights. He was the volunteer counsel to the Mattachine Society, one of the country’s first gay-rights organizations.

… Mr. Freedman sometimes adopted other unpopular stances. He participated in antiwar protests during the Vietnam War, raised questions about the fairness of federal juries and even challenged civil rights leaders to expand their views of liberty beyond the issue of race. ‘When a man fights for civil rights only when he is directly involved,’ he said in a speech at Howard University in 1963, ‘his real concern is himself, and not the Constitution, the Bill of Rights or his fellow man. Negro civil-rights leaders, like everyone else, should be civil libertarians, regardless of race or color.’

In 1973, Mr. Freedman became the law school dean at Hofstra, only to resign four years later in a dispute with the university’s leadership. He remained on the faculty, however, and lectured widely throughout the country. He was the first executive director of the U.S. Holocaust Memorial Council, from 1980 to 1982.” [….] For the entire article, see here.

I was fortunate to have occasionally corresponded with Monroe on a variety of topics. At the Legal Ethics Forum we had a few spirited debates related to the Israeli-Palestinian conflict, but that was perhaps the only issue on which we did not see eye-to-eye. When Monroe was once scheduled to give a lecture abroad he wrote to inquire what I knew about the differences between the adversary and inquisitorial legal systems (not very much), so I sent him some articles I thought he could tackle in a short span of time. But that was not representative of our cyberspace relationship, as it was more often yours truly on the learning end, especially with regard to our criminal justice system: the legal right to counsel, the abuse of prosecutorial discretion and the inordinate power of the American prosecutor generally, and, relatedly, the “elusive quest for poor people’s justice” (the subtitle of Karen Houppert’s 2013 book, Chasing Gideon). And I was honored to be among those who routinely received Monroe’s articles by post. Finally, I’m blessed to count among my law books a copy of his text on lawyers’ ethics (co-authored with Abbe Smith), as well as his co-edited work, How Can You Represent Those People? (Palgrave Macmillan, 2013). Inside the latter, Monroe penned a very kind and supportive note that is a fitting memorial token of all the reasons I will sorely miss this remarkable human being.

We’re paying tribute to Monroe over at the Legal Ethics Forum, where he was a blogger. And at Dorf on Law, Professor James Sample shares a personal remembrance of his colleague. Update: Also at LEF, Abbe Smith delivered this moving tribute at Monroes memorial.... 


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