Canadian Lawyer

16 J U N E 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m Freedman's most famous pronounce- ment, made in a 1966 lecture, was about what a lawyer should do if he knows that a client in a criminal trial intends to per- jure himself. The lecture was published in the Michigan Law Review. Freedman said a lawyer should make all possible efforts to dissuade his client from lying on the stand, but, if he fails and perjury is committed, he should say nothing. And, more than that, Freedman argued that in some instances, "it is proper to give your client legal advice when you have reason to believe that the knowl- edge you give him will tempt him to commit perjury." Part of a lawyer's obligation to keep quiet about perjury, thought Freedman, comes from a client's entitlement to con- fidentiality. Confidentiality, in the adver- sarial system, "allows the attorney no alternative to putting a perjurious witness on the stand without explicit or implicit disclosure of the attorney's knowledge to either the judge or the jury." Even more important is the broad context of the justice system. Only the lawyer stands between the criminal defendant and the unlimited resources of government. He has a moral duty of loyalty to his client. He is the champion of someone con- fronting overwhelming power. And, as a matter of moral principle, you cannot criticize a lawyer for actions taken in a representative capacity. Several judges, including then-fed- eral appeals judge Warren Burger, later chief justice of the United States, were outraged by Freedman's arguments and sought unsuccessfully to have him dis- barred and fired from his teaching posi- tion at Hofstra University. Freedman knew how to hold a grudge. He never forgot or forgave Burger's attack, and took every opportunity in his published work to cite judgments of the chief jus- tice as illustrations of legal error. Burger has long-since passed into the corridors of obscure legal history, but almost 50 years on, the Freedman lec- ture remains influential. Its lasting merit is that it makes you think about impor- tant but subtle issues of law and ethics, and punctures stultified and conven- tional thinking. It makes you consider afresh, for example, a criminal defence onroe Freedman died in late February. He was 86. I can hear you asking: "Who on earth was Monroe Freed- man?" The New York Times described him in a lengthy obituary as "a dominant figure in legal ethics whose work helped chart the course of lawyers' behaviour in the late 20 th century and beyond. . . ." That's who he was. Freedman's fame rests mostly on his book Understanding Law- yers' Ethics. His core belief was that every citizen is entitled to justice. He thought the principal ethical responsibility of a law- yer is to do everything possible to promote access to justice. Sometimes, Freedman argued, this fundamental obligation will lead to unexpected conclusions. Is advertis- ing by lawyers okay? Yes: that's how members of society most in need of information find out about their legal rights. What about chasing ambulances? That's okay too: chasing ambulances is another way of alerting people to their legal entitlements. L E G A L E T H I C S O P I N I O N @philipslayton DUSHAN MILIC Celebrating the gadfl y Legendary legal ethicist Monroe Freedman passed away in February but in life he was never one to shy away from strong opinions. By Philip Slayton M

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