Monroe H. Freedman, a dominant figure in legal
ethics, whose work helped chart the course of
lawyers’ behavior in the late 20th century and
beyond, died on Thursday at his home in
Manhattan. He was 86.
His granddaughter Rebeca Izquierdo Lodhi
confirmed the death.
At his death, he was a professor of law at Hofstra
University , on Long Island. Professor Freedman’s
book “ Understanding Lawyers’ Ethics ,” written
with Abbe Smith and currently in its fourth
edition, is assigned in law schools throughout the
country.
“He invented legal ethics as a serious academic
subject,” Alan M. Dershowitz, the Harvard Law
School professor, said in a telephone interview
on Monday. “Prior to Freedman, legal ethics was
usually a lecture given by the dean of the law
school, which resembled chapel: ‘Thou shalt not
steal. Thou shalt not be lazy.’ But Monroe
brought to the academy the realistic complexity
of what lawyers actually face.”
For half a century Professor Freedman was, by
his own account and that of colleagues, a gleeful
jurisprudential provocateur. On one occasion, he
waggishly titled a law-review article “ In Praise of
Overzealous Representation: Lying to Judges,
Deceiving Third Parties and Other Ethical
Conduct.” On another, he moved a future chief
justice of the United States Supreme Court to call
for his disbarment.
In his published writings and his many
interviews in the news media, Professor
Freedman persistently raised questions about
lawyers’ professional conduct that entailed deep
reflection, impassioned argument and — all too
often — discomforting answers.
“He was on my speed dial for everything I ever
did involving legal ethics,” Professor Dershowitz
said. “And I brought him to my classes every
single year: A legal education without Monroe
Freedman was incomplete.”
Drawing on a scholarly background that let him
invoke Hebrew Scripture, Christian Gospels, St.
Thomas Aquinas and Immanuel Kant in support
of his legal arguments, Professor Freedman was
concerned in particular with defining the scope
of lawyers’ responsibilities toward their clients.
Central to his concern was the lawyer-client
relationship as it played out in criminal court.
“It is 50 years since the case of Gideon v.
Wainwright ,” the noted civil-rights lawyer
Michael E. Tigar said on Monday, invoking the
landmark Supreme Court case of 1963 that
established a criminal defendant’s right to an
attorney. “The law books are full of cases of what
is now called ‘ineffective assistance of counsel.’
Monroe championed a view of the lawyer’s role
and responsibilities that makes the promise of
Gideon a reality.”
Professor Freedman’s views on ethics sprang
from his early work as a civil-liberties lawyer,
and throughout his career he maintained that the
two fields should dovetail seamlessly.
“That’s how he saw legal ethics,” his co-author
Professor Smith, who teaches at the Georgetown
University Law Center, said on Monday. “To him,
access to justice was — and is — central.”
At midcentury, for instance, Professor Freedman
took the American Bar Association to task on
civil libertarian grounds for its longstanding ban
on professional advertising. For one thing, he
argued, the ban violated lawyers’ First
Amendment rights. For another, he said, it
denied low-income Americans ready access to
information about legal services. His work helped
pave the way for the lifting of the ban in 1977.
Likewise, as Professor Freedman told the CBS
News program “60 Minutes” in 1994, “I believe
that there is a professional responsibility on the
part of lawyers to chase ambulances.” He added:
“We are here to help members of the public. And
we are not helping members of the public the
way we’re supposed to do it if we are not there
to tell people who are ignorant of their rights
that they’ve got rights.”
In 1966, in what was undoubtedly his most
controversial public stance, Professor Freedman
published an article in The Michigan Law Review
titled “ Professional Responsibility of the Criminal
Defense Lawyer : The Three Hardest Questions.”
In it, he argued that a lawyer’s obligation to
represent clients vigorously (and to protect their
privacy just as vigorously) should trump all other
considerations — including the lawyer’s
knowledge that a client plans to lie on the stand.
Though lawyers should advise clients not to
commit perjury, Professor Freedman wrote, if it
became clear that the client was going to anyway
— or already had — the lawyer’s overriding
obligation was to remain silent.
“His argument is still resonating in the halls of
every courtroom and every deposition, because
perjury is still rampant in our legal system,”
Professor Dershowitz said on Monday. “He wrote
the article to provoke a discussion.”
But what it provoked was a firestorm. Several
prominent jurists, including Warren E. Burger,
then a federal appellate judge and later the
United States chief justice, called, without success,
for Professor Freedman’s disbarment.
“Monroe’s position was really based upon a view
that the lawyer’s primary obligation is the
defense of a client who is, after all, facing an
adversary with superior resources,” Professor
Tigar explained. “And with everything arrayed
against the accused, Monroe put this primary
value on the advocate’s obligation of undivided
loyalty and zeal.”
Monroe Henry Freedman was born on April 10,
1928, in Mount Vernon, N.Y.; his parents,
Chauncey Freedman and the former Dorothea
Kornblum, ran a pharmacy there. The young Mr.
Freedman earned a bachelor’s degree from
Harvard, followed by bachelor’s and master’s
degrees from Harvard Law School.
Near the start of his career, Professor Freedman
served as a volunteer counsel to the Mattachine
Society , the early gay-rights group; from 1960 to
1964, he was a consultant to the United States
Commission on Civil Rights. In the early 1980s,
he was the first executive director of what
became the United States Holocaust Memorial
Museum .
Professor Freedman taught at George
Washington University before joining Hofstra in
1973. As the dean of Hofstra’s law school from
then until 1977, he was credited with helping to
give the school, founded in 1970, a national
profile as a teaching and research institution. He
was also a visiting professor at Georgetown.
Professor Freedman’s wife, the former Audrey
Willock, whom he married in 1950, died in 1998.
Besides his granddaughter Ms. Izquierdo Lodhi,
his survivors include a brother, Eugene; a sister,
Penny; a son, Judah; a daughter, Alice; six other
grandchildren; and three great-grandchildren. A
son, Caleb, and a daughter, Sarah Freedman-
Izquierdo, died before him.
His other books include “Lawyers’ Ethics in an
Adversary System” (1975) and “Group
Defamation and Freedom of Speech: The
Relationship Between Language and
Violence” (1995), which he edited with Eric M.
Freedman. With Professor Smith, he was the
editor of “How Can You Represent Those
People?” (2013), a collection of articles about a
lawyer’s obligation to take on distasteful clients.
As an index of his willingness to puncture all
manner of sacred cows, Professor Freedman, in a
series of articles in the 1990s, squared off against
possibly the most venerated figure in American
jurisprudence: Atticus Finch, the hero of Harper
Lee’s 1960 novel, “To Kill a Mockingbird.”
Among the moral transgressions for which
Professor Freedman takes Finch to task is the fact
that he defends Tom Robinson, a black man
accused of raping a white woman, not
voluntarily but because he was appointed by the
court.
“Atticus Finch never in his professional life
voluntarily takes a pro bono case in an effort to
ameliorate the evil — which he himself and
others recognize — in the apartheid of Maycomb,
Ala.,” Professor Freedman wrote in The Alabama
Law Review in 1994.
“Throughout his relatively comfortable and
pleasant life in Maycomb, Atticus Finch knows
about the grinding, ever-present humiliation and
degradation of the black people of Maycomb; he
tolerates it; and sometimes he even trivializes
and condones it.”
Professor Freedman added:
“For Finch, the civil rights movement of the
1960s is inevitable, but decades too soon.”