"Thinking Like a Lawyer" About Ethical Questions
Suppose you had to pick the two most influential events in the recent emergence of ethics as a subject of serious reflection by the bar. Most likely, you would name the Watergate affair of 1974 and the appearance a few years earlier of an article by Monroe Freedman. The article was a discussion of what Freedman called the "Three Hardest Questions" surrounding the responsibilities of criminal defense lawyers.
Of the two events, Watergate is the most famous but, for our purposes, the least important. It raised no challenging issues of professional responsibility. The lawyer conduct in Watergate that shocked the nation – burglary and obstruction of justice – was indefensible and, for the most part, undefended. The problem, as it emerged in Watergate, was compliance – how to induce people to obey a set of ostensibly uncontroversial norms. The principal responses have been the rote learning of disciplinary rules and moralistic exhortation to obey them. Neither response invokes a lawyer's capacities for judgment; indeed both often seem inimical to judgment. In many jurisdictions, legal ethics is the only subject tested on the bar examination exclusively on a machine-graded, multiple choice basis. In addition, bar review instructors routinely advise their charges not to "think too much" about the questions on the Multistate Professional Responsibility Exam. "What's being tested is your memory, not your ability to think," they say.
However, if we turn to the second of these two seminal events – Monroe Freedman's article – we see a different influence. I know I was invited here to disagree with Freedman, and I do not intend to disappoint you. However, honesty compels me to begin by expressing my admiration. Freedman focused attention on intensely contestable issues, the "hardest questions" as he put it – whether to cross-examine a truthful witness, counsel a client in a manner that might tempt her to perjury, or present perjury by a criminal defendant. Moreover, Freedman challenged some of the comforting responses often invoked as excuses for evading such questions. For example, Freedman swept away the claim that lawyers need not be concerned about deceptive tactics because they can "never know the real truth" of the matter. Lawyers often do know the truth, he insisted with the authority of his great practical experience, and partisanship often requires lawyers to work against the truth.
William H. Simon,
"Thinking Like a Lawyer" About Ethical Questions,
Hofstra L. Rev
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/877