UNIT - V ADVOCACY AND JUDICIAL CONDUCT

THE
BANGALORE
PRINCIPLES
OF JUDICIAL
CONDUCT
UNITED NATIONS OFFICE ON DRUGS AND CRIME
Vienna

THE
BANGALORE
PRINCIPLES
OF JUDICIAL
CONDUCT

UNITED NATIONS
Vienna, 2018
In July 2006, the United Nations Economic and Social Council (ECOSOC) adopted
a resolution recognizing the Bangalore Principles as representing a further develop-
ment of, and as being complementary to, the 1985 United Nations Basic Principles
on the Independence of the Judiciary. ECOSOC invited States to encourage their
judiciaries to take into consideration the Principles when reviewing or developing
rules with respect to judicial conduct.
 ECOSOC 2006/23

STRENGTHENING BASIC PRINCIPLES

OF JUDICIAL CONDUCT

The Economic and Social Council,

Recalling the Charter of the United Nations, in which Member States

affirm, inter alia, their determination to establish conditions under
which justice can be maintained to achieve international coopera-
tion in ­promoting and encouraging respect for human rights and
fundamental freedoms without any discrimination,

Recalling also the Universal Declaration of Human Rights, which

enshrines in particular the principles of equality before the law, of
the presumption of innocence and of the right to a fair and public
­hearing by a competent, independent and impartial tribunal
established by law,

Recalling further the International Covenant on Economic, Social

and Cultural Rights and the International Covenant on Civil and
Political Rights,1 which both guarantee the exercise of those rights,
and that the International Covenant on Civil and Political Rights
­further guarantees the right to be tried without undue delay,

1 General Assembly resolution 2200 A (XXI), annex.

1
Recalling the United Nations Convention against Corruption,2
which in its article 11 obliges States parties, in accordance with the
fundamental principles of their legal systems and without prejudice
­

to judicial independence, to take measures to strengthen integrity

and to prevent opportunities for corruption among members of the
judiciary, including rules with respect to the ­conduct of members of
the judiciary,

Convinced that corruption of members of the judiciary undermines

the rule of law and affects public confidence in the judicial system,

Convinced also that the integrity, independence and impartiality of

the judiciary are essential prerequisites for the effective protection of
human rights and economic development,

Recalling General Assembly resolutions 40/32 of 29 November 1985

and 40/146 of 13 December 1985, in which the Assembly endorsed
the Basic Principles on the Independence of the Judiciary, adopted
by the Seventh United Nations Congress on the Prevention of Crime
and the Treatment of Offenders, held in Milan from 26 August to
6 September 1985,3

Recalling also the recommendations adopted by the Ninth United

Nations Congress on the Prevention of Crime and the Treatment
of Offenders, held in Cairo from 29 April to 8 May 1995,4

2 General Assembly resolution 58/4, annex.

3 See Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders,
Milan, 26 August-6 September 1985: report prepared by the Secretariat (United Nations publication,
Sales No. E.86.IV.1), chap. I, sect. D.2, annex.
4 See A/CONF.169/16/Rev.1, chap. I, resolution 1, sect. III.

2
c­ oncerning the independence and impartiality of the judiciary
and the proper functioning of prosecutorial and legal services in
the field of criminal justice,

Recalling further that in 2000 the Centre for International Crime

Prevention of the Secretariat invited a group of chief justices of the
common law tradition to develop a concept of judicial integrity, con-
sistent with the principle of judicial independence, which would have
the potential to have a positive impact on the standard of judicial
­conduct and to raise the level of public confidence in the rule of law,

Recalling the second meeting of the Judicial Group on Strengthening

Judicial Integrity, held in 2001 in Bangalore, India, at which the
chief justices recognized the need for universally acceptable stand-
ards of judicial integrity and drafted the Bangalore Principles of
Judicial Conduct,5

Recalling also that the Judicial Group on Strengthening Judicial

Integrity thereafter conducted extensive consultations with judiciar-
ies of more than eighty countries of all legal traditions, leading to the
endorsement of the Bangalore Principles of Judicial Conduct by vari-
ous judicial forums, including a Round Table Meeting of Chief
Justices, held in The Hague on 25 and 26 November 2002, which was
attended by senior judges of the civil law tradition as well as judges of
the International Court of Justice,

Recalling further Commission on Human Rights resolution 2003/43,

on the independence and impartiality of the judiciary, jurors and asses-
sors and the independence of lawyers, in which the Commission took

5 E/CN.4/2003/65, annex.

3
note of the Bangalore Principles of Judicial Conduct and brought those
principles to the attention of Member States, relevant United Nations
organs and intergovernmental and non-governmental ­organizations for
their consideration,

Recalling Commission on Human Rights resolution 2003/39 on the

integrity of the judicial system, in which the Commission ­emphasized
the integrity of the judicial system as an essential prerequisite for the
protection of human rights and for ensuring that there was no
­discrimination in the administration of justice,

1. Invites Member States, consistent with their domestic legal

­systems, to encourage their judiciaries to take into consideration the
Bangalore Principles of Judicial Conduct, annexed to the present
resolution, when reviewing or developing rules with respect to the
professional and ethical conduct of members of the judiciary;

2. Emphasizes that the Bangalore Principles of Judicial Conduct

represent a further development and are complementary to the Basic
Principles on the Independence of the Judiciary, endorsed by the
General Assembly in its resolutions 40/32 and 40/146;

3. Acknowledges the important work carried out by the Judicial

Group on Strengthening Judicial Integrity under the auspices of the
United Nations Office on Drugs and Crime, as well as other
­international and regional judicial forums that contribute to the
development and dissemination of standards and measures to
strengthen judicial independence, impartiality and integrity;

4. Requests the United Nations Office on Drugs and Crime,

within available extrabudgetary resources, not excluding the use of

4
 existing resources from the regular budget of the Office6 and in
­particular through its Global Programme against Corruption, to
­continue to support the work of the Judicial Group on Strengthening
Judicial Integrity;

5. Expresses appreciation to Member States that have made volun-

tary contributions to the United Nations Office on Drugs and Crime
in support of the work of the Judicial Group on Strengthening
Judicial Integrity;

6. Invites Member States to make voluntary contributions, as

appropriate, to the United Nations Crime Prevention and Criminal
Justice Fund to support the Judicial Group on Strengthening Judicial
Integrity, and to continue to provide, through the Global Programme
against Corruption, technical assistance to developing countries and
countries with economies in transition, upon request, to strengthen
the integrity and capacity of their judiciaries;

7. Also invites Member States to submit to the Secretary-General

their views regarding the Bangalore Principles of Judicial Conduct
and to suggest revisions, as appropriate;

8. Requests the United Nations Office on Drugs and Crime,

within available extrabudgetary resources, not excluding the use of
existing resources from the regular budget of the Office,7 to con-
vene an open-ended intergovernmental expert group, in coopera-
tion with the Judicial Group on Strengthening Judicial Integrity

6 This language does not provide a basis for an increase in the regular budget or requests for
supplemental increases.
7 This language does not provide a basis for an increase in the regular budget or requests for
supplemental increases.

5
and other international and regional judicial forums, to develop a
technical guide to be used in providing technical assistance aimed
at strengthening judicial integrity and capacity, as well as a com-
mentary on the Bangalore Principles of Judicial Conduct, taking
into account the views expressed and the revisions suggested by
Member States;

9. Requests the Secretary-General to report to the Commission on

Crime Prevention and Criminal Justice at its sixteenth session on the
implementation of the present resolution.

ANNEX

Bangalore Principles of Judicial Conduct

WHEREAS the Universal Declaration of Human Rights recognizes

as fundamental the principle that everyone is entitled in full equal-
ity to a fair and public hearing by an independent and impartial
­tribunal, in the determination of rights and obligations and of any
criminal charge,

WHEREAS the International Covenant on Civil and Political

Rights8 guarantees that all persons shall be equal before the courts
and that in the determination of any criminal charge or of rights and
obligations in a suit at law, everyone shall be entitled, without undue
delay, to a fair and public hearing by a competent, independent and
impartial tribunal established by law,

8 General Assembly resolution 2200 A (XXI), annex.

6
WHEREAS the foregoing fundamental principles and rights are also
recognized or reflected in regional human rights instruments, in
domestic constitutional, statutory and common law, and in judicial
conventions and traditions,

WHEREAS the importance of a competent, independent and impar-

tial judiciary to the protection of human rights is given emphasis by
the fact that the implementation of all the other rights ultimately
depends upon the proper administration of justice,

WHEREAS a competent, independent and impartial judiciary is

likewise essential if the courts are to fulfil their role in upholding
constitutionalism and the rule of law,

WHEREAS public confidence in the judicial system and in the moral

authority and integrity of the judiciary is of the utmost importance
in a modern democratic society,

WHEREAS it is essential that judges, individually and collectively,

respect and honour judicial office as a public trust and strive to
enhance and maintain confidence in the judicial system,

WHEREAS the primary responsibility for the promotion and main-

tenance of high standards of judicial conduct lies with the judiciary
in each country,

AND WHEREAS the Basic Principles on the Independence of the

Judiciary9 are designed to secure and promote the independence of
the judiciary and are addressed primarily to States,

9 See Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders,
Milan, 26 August-6 September 1985: report prepared by the Secretariat (United Nations publication,
Sales No. E.86.IV.1), chap. I, sect. D.2, annex.

7
THE FOLLOWING PRINCIPLES are intended to establish stand-
ards for ethical conduct of judges. They are designed to provide guid-
ance to judges and to afford the judiciary a framework for regulating
judicial conduct. They are also intended to assist members of the
executive and the legislature, and lawyers and the public in general,
to better understand and support the judiciary. These principles pre-
suppose that judges are accountable for their conduct to appropriate
institutions established to maintain judicial standards, which are
themselves independent and impartial, and are intended to supple-
ment and not to derogate from existing rules of law and conduct that
bind the judge.

Value 1
Independence

Principle
Judicial independence is a prerequisite to the rule of law and a funda-
mental guarantee of a fair trial. A judge shall therefore uphold and
exemplify judicial independence in both its individual and institu-
tional aspects.

Application
1.1.  A judge shall exercise the judicial function independently on
the basis of the judge’s assessment of the facts and in accordance with
a conscientious understanding of the law, free of any extraneous
influences, inducements, pressures, threats or interference, direct or
indirect, from any quarter or for any reason.

8
1.2.  A judge shall be independent in relation to society in general
and in relation to the particular parties to a dispute that the judge has
to adjudicate.

1.3.  A judge shall not only be free from inappropriate connections

with, and influence by, the executive and legislative branches of
­government, but must also appear to a reasonable observer to be
free therefrom.

1.4.  In performing judicial duties, a judge shall be independent of

judicial colleagues in respect of decisions that the judge is obliged to
make independently.

1.5.  A judge shall encourage and uphold safeguards for the discharge
of judicial duties in order to maintain and enhance the i­nstitutional
and operational independence of the judiciary.

1.6.  A judge shall exhibit and promote high standards of judicial

conduct in order to reinforce public confidence in the judiciary,
which is fundamental to the maintenance of judicial independence.

Value 2
Impartiality

Principle
Impartiality is essential to the proper discharge of the judicial office.
It applies not only to the decision itself but also to the process by
which the decision is made.

9
Application
2.1.  A judge shall perform his or her judicial duties without favour,
bias or prejudice.

2.2.  A judge shall ensure that his or her conduct, both in and out
of court, maintains and enhances the confidence of the public, the
legal profession and litigants in the impartiality of the judge and of
the judiciary.

2.3.  A judge shall, as far as is reasonable, so conduct himself or her-

self as to minimize the occasions on which it will be necessary for the
judge to be disqualified from hearing or deciding cases.

2.4.  A judge shall not knowingly, while a proceeding is before, or

could come before, the judge, make any comment that might reason-
ably be expected to affect the outcome of such proceeding or impair
the manifest fairness of the process, nor shall the judge make any
comment in public or otherwise that might affect the fair trial of any
person or issue.

2.5.  A judge shall disqualify himself or herself from participating in

any proceedings in which the judge is unable to decide the matter
impartially or in which it may appear to a reasonable observer that
the judge is unable to decide the matter impartially.

Such proceedings include, but are not limited to, instances where:
(a) The judge has actual bias or prejudice concerning a party or
personal knowledge of disputed evidentiary facts concerning the
proceedings;
(b) The judge previously served as a lawyer or was a material
witness in the matter in controversy; or

10
 (c) The judge, or a member of the judge’s family, has an ­economic
interest in the outcome of the matter in controversy;

provided that disqualification of a judge shall not be required if no

other tribunal can be constituted to deal with the case or, because of
urgent circumstances, failure to act could lead to a serious ­miscarriage
of justice.

Value 3
Integrity

Principle
Integrity is essential to the proper discharge of the judicial office.

Application
3.1.  A judge shall ensure that his or her conduct is above reproach
in the view of a reasonable observer.

3.2.  The behaviour and conduct of a judge must reaffirm the

­people’s faith in the integrity of the judiciary. Justice must not merely
be done but must also be seen to be done.

Value 4
Propriety

Principle
Propriety, and the appearance of propriety, are essential to the
­performance of all of the activities of a judge.

11
Application
4.1.  A judge shall avoid impropriety and the appearance of
­impropriety in all of the judge’s activities.

4.2.  As a subject of constant public scrutiny, a judge must accept

personal restrictions that might be viewed as burdensome by the
ordinary citizen and should do so freely and willingly. In particular, a
judge shall conduct himself or herself in a way that is consistent with
the dignity of the judicial office.

4.3.  A judge shall, in his or her personal relations with individual

members of the legal profession who practise regularly in the judge’s
court, avoid situations that might reasonably give rise to the ­suspicion
or appearance of favouritism or partiality.

4.4.  A judge shall not participate in the determination of a case in

which any member of the judge’s family represents a litigant or is
associated in any manner with the case.

4.5.  A judge shall not allow the use of the judge’s residence by a
member of the legal profession to receive clients or other members
of the legal profession.

4.6.  A judge, like any other citizen, is entitled to freedom of expres-

sion, belief, association and assembly, but, in exercising such rights, a
judge shall always conduct himself or herself in such a manner as to
preserve the dignity of the judicial office and the impartiality and
independence of the judiciary.

4.7.  A judge shall inform himself or herself about the judge’s personal
and fiduciary financial interests and shall make reasonable efforts to be
informed about the financial interests of members of the judge’s family.

12
4.8.  A judge shall not allow the judge’s family, social or other rela-
tionships improperly to influence the judge’s judicial conduct and
judgement as a judge.

4.9.  A judge shall not use or lend the prestige of the judicial office
to advance the private interests of the judge, a member of the judge’s
family or of anyone else, nor shall a judge convey or permit others to
convey the impression that anyone is in a special position improperly
to influence the judge in the performance of judicial duties.

4.10.  Confidential information acquired by a judge in the judge’s

judicial capacity shall not be used or disclosed by the judge for any
other purpose not related to the judge’s judicial duties.

4.11.  Subject to the proper performance of judicial duties, a

judge may:
(a) Write, lecture, teach and participate in activities concerning the
law, the legal system, the administration of justice or related matters;

(b) Appear at a public hearing before an official body concerned

with matters relating to the law, the legal system, the administration
of justice or related matters;

(c) Serve as a member of an official body, or other government

commission, committee or advisory body, if such membership is not
inconsistent with the perceived impartiality and political neutrality
of a judge; or

(d) Engage in other activities if such activities do not detract

from the dignity of the judicial office or otherwise interfere with the
performance of judicial duties.

4.12.  A judge shall not practise law while the holder of judicial office.

13
4.13.  A judge may form or join associations of judges or participate
in other organizations representing the interests of judges.

4.14.  A judge and members of the judge’s family shall neither ask
for, nor accept, any gift, bequest, loan or favour in relation to any-
thing done or to be done or omitted to be done by the judge in con-
nection with the performance of judicial duties.

4.15.  A judge shall not knowingly permit court staff or others sub-
ject to the judge’s influence, direction or authority to ask for, or
accept, any gift, bequest, loan or favour in relation to anything done
or to be done or omitted to be done in connection with his or her
duties or functions.

4.16.  Subject to law and to any legal requirements of public disclo-

sure, a judge may receive a token gift, award or benefit as appropriate
to the occasion on which it is made provided that such gift, award or
benefit might not reasonably be perceived as intended to influence
the judge in the performance of judicial duties or otherwise give rise
to an appearance of partiality.

Value 5
Equality

Principle
Ensuring equality of treatment to all before the courts is essential to
the due performance of the judicial office.

Application
5.1.  A judge shall be aware of, and understand, diversity in society
and differences arising from various sources, including but not

14
limited to race, colour, sex, religion, national origin, caste, disability,
age, marital status, sexual orientation, social and economic status and
other like causes (“irrelevant grounds”).

5.2.  A judge shall not, in the performance of judicial duties, by

words or conduct, manifest bias or prejudice towards any person or
group on irrelevant grounds.

5.3.  A judge shall carry out judicial duties with appropriate consid-
eration for all persons, such as the parties, witnesses, lawyers, court
staff and judicial colleagues, without differentiation on any irrelevant
ground, immaterial to the proper performance of such duties.

5.4.  A judge shall not knowingly permit court staff or others sub-
ject to the judge’s influence, direction or control to differentiate
between persons concerned, in a matter before the judge, on any
irrelevant ground.

5.5.  A judge shall require lawyers in proceedings before the court to

refrain from manifesting, by words or conduct, bias or prejudice
based on irrelevant grounds, except such as are legally relevant to an
issue in proceedings and may be the subject of legitimate advocacy.

Value 6
Competence and diligence

Principle
Competence and diligence are prerequisites to the due performance
of judicial office.

15
Application
6.1. The judicial duties of a judge take precedence over all other
activities.

6.2. A judge shall devote the judge’s professional activity to judicial

duties, which include not only the performance of judicial functions
and responsibilities in court and the making of decisions, but also
other tasks relevant to the judicial office or the court’s operations.

6.3. A judge shall take reasonable steps to maintain and enhance

the judge’s knowledge, skills and personal qualities necessary for the
proper performance of judicial duties, taking advantage for that pur-
pose of the training and other facilities that should be made available,
under judicial control, to judges.

6.4. A judge shall keep himself or herself informed about relevant

developments of international law, including international conven-
tions and other instruments establishing human rights norms.

6.5. A judge shall perform all judicial duties, including the delivery of
reserved decisions, efficiently, fairly and with reasonable promptness.

6.6. A judge shall maintain order and decorum in all proceedings

before the court and be patient, dignified and courteous in relation
to litigants, jurors, witnesses, lawyers and others with whom the
judge deals in an official capacity. The judge shall require similar con-
duct of legal representatives, court staff and others subject to the
judge’s influence, direction or control.

6.7. A judge shall not engage in conduct incompatible with the

diligent discharge of judicial duties.

16
 Implementation
By reason of the nature of judicial office, effective measures shall be
adopted by national judiciaries to provide mechanisms to implement
these principles if such mechanisms are not already in existence in
their jurisdictions.

Definitions
In this statement of principles, unless the context otherwise per-
mits or requires, the following meanings shall be attributed to the
words used:

“Court staff ” includes the personal staff of the judge, including law
clerks;

“Judge” means any person exercising judicial power, however

designated;

“Judge’s family” includes a judge’s spouse, son, daughter, son-in-law,

daughter-in-law and any other close relative or person who is a compan-
ion or employee of the judge and who lives in the judge’s household;

“Judge’s spouse” includes a domestic partner of the judge or any other

person of either sex in a close personal relationship with the judge.

17
To access the electronic version of this document please go to

WWW.UNODC.ORG/JI/TRAINERSMANUAL.HTML
V.18-06392
Maurice A. Deane School of Law at Hofstra University
Scholarly Commons at Hofstra Law
Hofstra Law Faculty Scholarship

1966

Professional Responsibility of the Criminal

Defense Lawyer: The Three Hardest Questions
Monroe H. Freedman
Maurice A. Deane School of Law at Hofstra University

Follow this and additional works at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship

Part of the Legal Ethics and Professional Responsibility Commons

Recommended Citation
Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1469
(1966)
Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/5

This Article is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Faculty
Scholarship by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected].
 SYMPOSIUM ON PROFESSIONAL ETHICS
PROFESSIONAL RESPONSIBILITY OF THE
CREMNAL DEFENSE LAWYER: THE
THREE HARDEST QUESTIONS
Monroe H. Freedman*

N almost any area of legal counseling and advocacy, the lawyer

may be faced with the dilemma of either betraying the confi-
dential communications of his client or participating to some ex-
tent in the purposeful deception of the court. This problem is no-
where more acute than in the practice of criminal law, particularly
in the representation of the indigent accused. The purpose of this
article is to analyze and attempt to resolve three of the most difficult
issues in this general area:
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?
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?
These questions present serious difficulties with respect to a
lawyer's ethical responsibilities. Moreover, if one admits the possi-
bility of an affirmative answer, it is difficult even to discuss them
without appearing to some to be unethical.' It is not surprising,
therefore, that reasonable, rational discussion of these issues has
been uncommon and that the problems have for so long remained
unresolved. In this regard it should be recognized that the Canons
2
of Ethics, which were promulgated in 1908 "as a general guide,"
are both inadequate and self-contradictory.
* Professor of Law, George Washington University; Co-Director, Criminal Trial
Institute, Washington, D.C.-Ed.
1. The substance of this paper was recently presented to a Criminal Trial Institute
attended by forty-five members of the District of Columbia Bar. As a consequence,
several judges (none of whom had either heard the lecture or read it) complained to
the Committee on Admissions and Grievances of the District Court for the District
of Columbia, urging the author's disbarment or suspension. Only after four months
of proceedings, including a hearing, two meetings, and a de novo review by eleven
federal district court judges, did the Committee announce its decision to "proceed
no further in the matter."
2. AMERICAN BAR ASSOCIATION, CANONS OF PROFESSIONAL ETHIcs, Preamble (1908).

[1469]
1470 Michigan Law Review (Vol. 64:1469

I. THE ADvERSARY SYSTEM AND THE NECESSITY FOR CONFIDENTIALITY

At the outset, we should dispose of some common question-beg-

ging responses. The attorney is indeed an officer of the court, and
he does participate in a search for truth. These two propositions,
however, merely serve to state the problem in different words: As
an officer of the court, participating in a search for truth, what is
the attorney's special responsibility, and how does that responsi-
bility affect his resolution of the questions posed above?
The attorney functions in an adversary system based upon the
presupposition that the most effective means of determining truth
is to present to a judge and jury a clash between proponents of
conflicting views. It is essential to the effective functioning of this
system that each adversary have, in the words of Canon 15, "entire
devotion to the interest of the client, warm zeal in the maintenance
and defense of his rights and the exertion of his utmost learning
and ability." It is also essential to maintain the fullest uninhibited
communication between the client and his attorney, so that the
attorney can most effectively counsel his client and advocate the
latter's cause. This policy is safeguarded by the requirement that
the lawyer must, in the words of Canon 37, "preserve his client's
confidences." Canon 15 does, of course, qualify these obligations by
stating that "the office of attorney does not permit, much less does
it demand of him for any client, violations of law or any manner
of fraud or chicane." In addition, Canon 22 requires candor toward
the court.
The problem presented by these salutary generalities of the
Canons in the context of particular litigation is illustrated by the
personal experience of Samuel Williston, which was related in his
autobiography.8 Because of his examination of a client's correspon-
dence file, Williston learned of a fact extremely damaging to his
client's case. When the judge announced his decision, it was appar-
ent that a critical factor in the favorable judgment for Williston's
client was the judge's ignorance of this fact. Williston remained
silent and did not thereafter inform the judge of what he knew. He
was convinced, and Charles Curtis4 agrees with him, that it was his
duty to remain silent.
In an opinion by the American Bar Association Committee on
3. WILLMISON, LiFE AND LAW 271 (1940).
4. CuRTIs, IT'S YouR LAW 17-21 (1954). See also Curtis, The Ethics of Advocacy, 4
STAN. L. REv. 3, 9-10 (1951); Drinker, Some Remarks on Mr. Curtis' "The Ethics of
Advocacy," 4 STAN. L. REv. 349, 350-51 (1952).
June 1966] The Three Hardest Questions 1471

Professional Ethics and Grievances, an eminent panel headed by

Henry Drinker held that a lawyer should remain silent when his
client lies to the judge by saying that he has no prior record, despite
the attorney's knowledge to the contrary.5 The majority of the panel
distinguished the situation in which the attorney has learned of the
client's prior record from a source other than the client himself.
William B. Jones, a distinguished trial lawyer and now a judge in
the United States District Court for the District of Columbia, wrote
a separate opinion in which he asserted that in neither event should
the lawyer expose his client's lie. If these two cases do not constitute
"fraud or chicane" or lack of candor within the meaning of the
Canons (and I agree with the authorities cited that they do not), it
is clear that the meaning of the Canons is ambiguous.
The adversary system has further ramifications in a criminal
case. The defendant is presumed to be innocent. The burden is
on the prosecution to prove beyond a reasonable doubt that the
defendant is guilty. The plea of not guilty does not necessarily
mean "not guilty in fact," for the defendant may mean "not legally
guilty." Even the accused who knows that he committed the crime
is entitled to put the government to its proof. Indeed, the accused
who knows that he is guilty has an absolute constitutional right
to remain silent.6 The moralist might quite reasonably under-
stand this to mean that, under these circumstances, the defendant
and his lawyer are privileged to "lie" to the court in pleading not
guilty. In my judgment, the moralist is right. However, our adver-
sary system and related notions of the proper administration of
criminal justice sanction the lie.
Some derive solace from the sophistry of calling the lie a "legal
fiction," but this is hardly an adequate answer to the moralist. More-
over, this answer has no particular appeal for the practicing attor-
ney, who knows that the plea of not guilty commits him to the most
effective advocacy of which he is capable. Criminal defense lawyers
do not win their cases by arguing reasonable doubt. Effective trial
advocacy requires that the attorney's every word, action, and attitude
be consistent with the conclusion that his client is innocent. As
every trial lawyer knows, the jury is certain that the defense attorney
knows whether his client is guilty. The jury is therefore alert to,
and will be enormously affected by, any indication by the attorney
5. Opinion 287, Committee on Professional Ethics and Grievances of the American
Bar Association (1953).
6. Escobedo v. Illinois, 378 U.S. 478, 485, 491 (1964).
1472 Michigan Law Review [Vol. 64:1469

that he believes the defendant to be guilty. Thus, the plea of not

guilty commits the advocate to a trial, including a closing argument,
in which he must argue that "not guilty" means "not guilty in fact."7
There is, of course, a simple way to evade the dilemma raised by
the not guilty plea. Some attorneys rationalize the problem by in-
sisting that a lawyer never knows for sure whether his client is
guilty. The client who insists upon his guilt may in fact be protect-
ing his wife, or may know that he pulled the trigger and that the
victim was killed, but not that his gun was loaded with blanks and
that the fatal shot was fired from across the street. For anyone who
finds this reasoning satisfactory, there is, of course, no need to think
further about the issue.
It is also argued that a defense attorney can remain selectively
ignorant. He can insist in his first interview with his client that, if
his client is guilty, he simply does not want to know. It is incon-
ceivable, however, that an attorney could give adequate counsel
under such circumstances. How is the client to know, for example,
precisely which relevant circumstances his lawyer does not want to
be told? The lawyer might ask whether his client has a prior record.
The client, assuming that this is the kind of knowledge that might
present ethical problems for his lawyer, might respond that he has no
record. The lawyer would then put the defendant on the stand and, on
cross-examination, be appalled to learn that his client has two prior
convictions for offenses identical to that for which he is being tried.
Of course, an attorney can guard against this specific problem
by telling his client that he must know about the client's past record.
However, a lawyer can never anticipate all of the innumerable and
potentially critical factors that his client, once cautioned, may de-
cide not to reveal. In one instance, for example, the defendant as-
sumed that his lawyer would prefer to be ignorant of the fact that
the client had been having sexual relations with the chief defense
witness. The client was innocent of the robbery with which he was
charged, but was found guilty by the jury-probably because he
was guilty of fornication, a far less serious offense for which he had
not even been charged.
7. "The failure to argue the case before the jury, while ordinarily only a trial
tactic not subject to review, manifestly enters the field of incompetency when the
reason assigned is the attorney's conscience. It is as improper as though the attorney
had told the jury that his client had uttered a falsehood in making the statement.
The right to an attorney embraces effective representation throughout all stages of
the trial, and where the representation is of such low caliber as to amount to no repre-
sentation, the guarantee of due process has been violated." Johns v. Smyth, 176 F.
Supp. 949, 953 (E.D. Va. 1959); SCHwARTZ, CASES ON PROFESSIONAL ,ESPONSIILITY AND
THE ADMINISTRATION OF CRIMINAL JUSTICE 79 (1962).
June 1966] The Three Hardest Questions 1473

The problem is compounded by the practice of plea bargain-

ing. It is considered improper for a defendant to plead guilty to
a lesser offense unless he is in fact guilty. Nevertheless, it is com-
mon knowledge that plea bargaining frequently results in im-
proper guilty pleas by innocent people. For example, a defendant
falsely accused of robbery may plead guilty to simple assault, rather
than risk a robbery conviction and a substantial prison term. If an
attorney is to be scrupulous in bargaining pleas, however, he must
know in advance that his client is guilty, since the guilty plea is
improper if the defendant is innocent. Of course, if the attempt to
bargain for a lesser offense should fail, the lawyer would know the
truth and thereafter be unable to rationalize that he was uncertain
of his client's guilt.
If one recognizes that professional responsibility requires that
an advocate have full knowledge of every pertinent fact, it follows
that he must seek the truth from his client, not shun it.8 This
means that he will have to dig and pry and cajole, and, even then,
he will not be successful unless he can convince the client that full
and confidential disclosure to his lawyer will never result in preju-
dice to the client by any word or action of the lawyer. This is,
perhaps, particularly true in the case of the indigent defendant, who
meets his lawyer for the first time in the cell block or the rotunda.
He did not choose the lawyer, nor does he know him. The lawyer
has been sent by the judge and is part of the system that is attempt-
ing to punish the defendant. It is no easy task to persuade this client
that he can talk freely without fear of prejudice. However, the in-
clination to mislead one's lawyer is not restricted to the indigent or
even to the criminal defendant. Randolph Paul has observed a simi-
lar phenomenon among a wealthier class in a far more congenial
atmosphere:
The tax adviser will sometimes have to dynamite the facts
of his case out of the unwilling witnesses on his own side-
witnesses who are nervous, witnesses who are confused about
their own interest, witnesses who try to be too smart for their
own good, and witnesses who subconsciously do not want to
understand what has happened despite the fact that they must
if they are to testify coherently.9
Paul goes on to explain that the truth can be obtained only'by
persuading the client that it would be a violation of a sacred obli-
8. "[C]ounsel cannot properly perform their duties without knowing the truth."
Opinion 28, Committee on Professional Ethics and Grievances of the American Bar
Association (1930).
9. Paul, The Responsibilities 6f the Tax Adviser. 63 I-AIv. L. Rv. 377, 383 (1950).
1474 Michigan Law Review [Vol. 64:14169

gation for the lawyer ever to reveal a client's confidence. Beyond

any question, once a lawyer has persuaded his client of the obliga-
tion of confidentiality, he must respect that obligation scrupulously.

II. THE SPECIFIC QUESTIONS

The first of the difficult problems posed above will now be con-
sidered: Is it proper to cross-examine for the purpose of discrediting
the reliability or the credibility of a witness whom you know to be
telling the truth? Assume the following situation. Your client has
been falsely accused of a robbery committed at 16th and P Streets
at 11:00 p.m. He tells you at first that at no time on the evening of
the crime was he within six blocks of that location. However, you
are able to persuade him that he must tell you the truth and that
doing so will in no way prejudice him. He then reveals to you that
he was at 15th and P Streets at 10:55 that evening, but that he was
walking east, away from the scene of the crime, and that, by 11:00
p.m., he was six blocks away. At the trial, there are two prosecution
witnesses. The first mistakenly, but with some degree of persuasion,
identifies your client as the criminal. At that point, the prosecution's
case depends on this single witness, who might or might not be
believed. Since your client has a prior record, you do not want to
put him on the stand, but you feel that there is at least a chance
for acquittal. The second prosecution witness is an elderly woman
who is somewhat nervous and who wears glasses. She testifies truth-
fully and accurately that she saw your client at 15th and P Streets
at 10:55 p.m. She has corroborated the erroneous testimony of the
first witness and made conviction virtually certain. However, if you
destroy her reliability through cross-examination designed to show
that she is easily confused and has poor eyesight, you may not only
eliminate the corroboration, but also cast doubt in the jury's mind
on the prosecution's entire case. On the other hand, if you should
refuse to cross-examine her because she is telling the truth, your
client may well feel betrayed, since you knew of the witness's veracity
only because your client confided in you, under your assurance that
his truthfulness would not prejudice him.
The client would be right. Viewed strictly, the attorney's failure
to cross-examine would not be violative of the client's confidence
because it would not constitute a disclosure. However, the same policy
that supports the obligation of confidentiality precludes the attorney
from prejudicing his client's interest in any other way because of
knowledge gained in his professional capacity. When a lawyer fails
June 1966] The Three Hardest Questions 1475

to cross-examine only because his client, placing confidence in the

lawyer, has been candid with him, the basis for such confidence and
candor collapses. Our legal system cannot tolerate such a result.
The purposes and necessities of the relation between a client
and his attorney require, in many cases, on the part of the
client, the fullest and freest disclosures to the attorney of the
client's objects, motives and acts .... To permit the attorney
to reveal to others what is so disclosed, would be not only a
gross violation of a sacred trust upon his part, but it would ut-
terly destroy and prevent the usefulness and benefits to be
derived from professional assistance. 10
The client's confidences must "upon all occasions be inviolable," to
avoid the "greater mischiefs" that would probably result if a client
could not feel free "to repose [confidence] in the attorney to whom
he resorts for legal advice and assistance."" Destroy that confidence,
and "a man would not venture to consult any skillful person, or
12
would only dare to tell his counsellor half his case."'
Therefore, one must conclude that the attorney is obligated to
attack, if he can, the reliability or credibility of an opposing witness
whom he knows to be truthful. The contrary result would inevitably
impair the "perfect freedom of consultation by client with attorney,"
3
which is "essential to the administration of justice."'
The second question is generally considered to be the hardest
of all: Is it proper to put a witness on the stand when you know
he will commit perjury? Assume, for example, that the witness in
question is the accused himself, and that he has admitted to you,
in response to your assurances of confidentiality, that he is guilty.
However, he insists upon taking the stand to protest his innocence.
There is a clear consensus among prosecutors and defense attorneys
that the likelihood of conviction is increased enormously when the
defendant does not take the stand. Consequently, the attorney who
prevents his client from testifying only because the client has con-
fided his guilt to him is violating that confidence by acting upon
the information in a way that will seriously prejudice his client's
interests.
Perhaps the most common method for avoiding the ethical prob-
10. 2 MEHEm, AGENCY § 2297 (2d ed. 1914).
11. Opinion 150, Committee on Professional Ethics and Grievances of the American
Bar Association (1936), quoting THORNTON, ATrORNEYS AT LAW § 94 (1914). See also
Opinion 23, supra note 8.
12. Greenough v. Gaskell, 1 Myl. & K. 98, 103, 39 Eng. Rep. 618, 621 (Ch. 1833)
(Lord Chancellor Brougham).
13. Opinion 91, Committee on Professional Ethics and Grievances of the American
Bar Association (1933).
1476 Michigan Law Review ["Vol. 64:1469

lem just posed is for the lawyer to withdraw from the case, at least
if there is sufficient time before trial for the client to retain another
attorney.' The client will then go to the nearest law office, realizing
that the obligation of confidentiality is not what it has been repre-
sented to be, and withhold incriminating information or the fact of
his guilt from his new attorney. On ethical grounds, the practice
of withdrawing from a case under such circumstances is indefensible,
since the identical perjured testimony will ultimately be presented.
More important, perhaps, is the practical consideration that the
new attorney will be ignorant of the perjury and therefore will be
in no position to attempt to discourage the client from presenting
it. Only the original attorney, who knows the truth, has that oppor-
tunity, but he loses it in the very act of evading the ethical problem.
The problem is all the more difficult when the client is indigent.
He cannot retain other counsel, and in many jurisdictions, including
the District of Columbia, it is impossible for appointed counsel to
withdraw from a case except for extraordinary reasons. Thus, ap-
pointed counsel, unless he lies to the judge, can successfully with-
draw only by revealing to the judge that the attorney has received
knowledge of his client's guilt. Such a revelation in itself would
seem to be a sufficiently serious violation of the obligation of confi-
dentiality to merit severe condemnation. In fact, however, the situ-
ation is far worse, since it is entirely possible that the same judge
who permits the attorney to withdraw will subsequently hear the
case and sentence the defendant. When he does so, of course, he will
have had personal knowledge of the defendant's guilt before the
trial began. 15 Moreover, this will be knowledge of which the newly
appointed counsel for the defendant will probably be ignorant.
The difficulty is further aggravated when the client informs the
lawyer for the first time during trial that he intends to take the
stand and commit perjury. The perjury in question may not neces-
sarily be a protestation of innocence by a guilty man. Referring to
14. See Orkin, Defense of One Known To Be Guilty, 1 Cir. L.Q. 170, 174 (1958).
Unless the lawyer has told the client at the outset that he will withdraw if he learns
that the client is guilty, "it is plain enough as a matter of good morals and profes-
sional ethics" that the lawyer should not withdraw on this ground. Opinion 90,
Committee on Professional Ethics and Grievances of the American Bar Association
(1932). As to the difficulties inherent in the lawyer's telling the client that he wants
to remain ignorant of crucial facts, see note 8 supra and accompanying text.
15. The judge may infer that the situation is worse than it is in fact. In the case
related in note 28 infra, the attorney's actual difficulty was that he did not want to
permit a plea of guilty by a client who was maintaining his innocence. However, as
is commonly done, he told the judge only that he had to withdraw because of "an
ethical problem." The judge reasonably inferred that the defendant had admitted his
guilt and wanted to offer a perjured alibi.
June 1966] The Three Hardest Questions 1477

the earlier hypothetical of the defendant wrongly accused of a rob-

bery at 16th and P, the only perjury may be his denial of the truth-
ful, but highly damaging, testimony of the corroborating witness
who placed him one block away from the intersection five minutes
prior to the crime. Of course, if he tells the truth and thus verifies
the corroborating witness, the jury will be far more inclined to
accept the inaccurate testimony of the principal witness, who spe-
cifically identified him as the criminal. 16
If a lawyer has discovered his client's intent to perjure himself,
one possible solution to this problem is for the lawyer to approach
the bench, explain his ethical difficulty to the judge, and ask to be
relieved, thereby causing a mistrial. This request is certain to be
denied, if only because it would empower the defendant to cause a
series of mistrials in the same fashion. At this point, some feel that
the lawyer has avoided the ethical problem and can put the defen-
dant on the stand. However, one objection to this solution, apart
from the violation of confidentiality, is that the lawyer's ethical
problem has not been solved, but has only been transferred to the
judge. Moreover, the client in such a case might well have grounds
for appeal on the basis of deprivation of due process and denial of
the right to counsel, since he will have been tried before, and sen-
tenced by, a judge who has been informed of the client's guilt by
his own attorney.
A solution even less satisfactory than informing the judge of the
defendant's guilt would be to let the client take the stand without
the attorney's participation and to omit reference to the client's tes-
timony in closing argument. The latter solution, of course, would
be as damaging as to fail entirely to argue the case to the jury, and
failing to argue the case is "as improper as though the attorney had
told the jury that his client had uttered a falsehood in making the
7
statement."r
Therefore, the obligation of confidentiality, in the context of
our adversary system, apparently allows the attorney no alternative
to putting a perjurious witness on the stand without explicit or im-
plicit disclosure of the attorney's knowledge to either the judge or the
16. One lawyer, who considers it dearly unethical for the attorney to present the
alibi in this -hypothetical case, found no ethical difficulty himself in the following case.
His client was prosecuted for robbery. The prosecution witness testified that the rob-
bery had taken place at 10:15, and identified the defendant as the criminal. However,
the defendant had a convincing alibi for 10:00 to 10:30. The attorney presented.the
alibi, and the client was acquitted. The alibi was truthful, but the attorney knew
that the prosecution witness had been confused about the time, and that his client
had in fact committed the crime at 10:45.
17, See note 7 supra,
1478 Michigan Law Review [Vol. 64:1,169

jury. Canon 37 does not proscribe this conclusion; the canon recog-
nizes only two exceptions to the obligation of confidentiality. The
first relates to the lawyer who is accused by his client and may dis-
close the truth to defend himself. The other exception relates to the
"announced intention of a client to commit a crime." On the basis
of the ethical and practical considerations discussed above, the
Canon's exception to the obligation of confidentiality cannot logi-
cally be understood to include the crime of perjury committed dur-
ing the specific case in which the lawyer is serving. Moreover, even
when the intention is to commit a crime in the future, Canon 37
does not require disclosure, but only permits it. Furthermore, Canon
15, which does proscribe "violation of law" by the attorney for his
client, does not apply to the lawyer who unwillingly puts a per-
jurious client on the stand after having made every effort to dissuade
him from committing perjury. Such an act by the attorney cannot
properly be found to be subornation-corrupt inducement-of
perjury. Canon 29 requires counsel to inform the prosecuting au-
thorities of perjury committed in a case in which he has been in-
volved, but this can only refer to perjury by opposing witnesses.
For an attorney to disclose his client's perjury "would involve a
direct violation of Canon 37."118 Despite Canon 29, therefore, the at-
torney should not reveal his client's perjury "to the court or to the
authorities."19
Of course, before the client testifies perjuriously, the lawyer has
a duty to attempt to dissuade him on grounds of both law and
morality. In addition, the client should be impressed with the fact
that his untruthful alibi is tactically dangerous. There is always a
strong possibility that the prosecutor will expose the perjury on
cross-examination. However, for the reasons already given, the final
decision must necessarily be the client's. The lawyer's best course
thereafter would be to avoid any further professional relationship
with a client whom he knew to have perjured himself.
The third question is whether it is 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. This may indeed be
the most difficult problem of all, because giving such advice creates
the appearance that the attorney is encouraging and condoning
perjury.
If the lawyer is not certain what the facts are when he gives the
18. Opinion 287, Committee on Professional Ethics and Grievances of the Ameri-
can Bar Association (1953).
19. Ibid.
June 1966] The Three Hardest Questions 1479

advice, the problem is substantially minimized, if not eliminated.

It is not the lawyer's function to prejudge his client as a perjurer.
He cannot presume that the client will make unlawful use of his
advice. Apart from this, there is a natural predisposition in most
people to recollect facts, entirely honestly, in a way most favorable
to their own interest. As Randolph Paul has observed, some wit-
nesses are nervous, some are confused about their own interests,
some try to be too smart for their own good, and some subconsciously
do not want to understand what has happened to them. 20 Before he
begins to remember essential facts, the client is entitled to know
what his own interests are.
The above argument does not apply merely to factual questions
such as whether a particular event occurred at 10:15 or at 10:45.21
One of the most critical problems in a criminal case, as in many
others, is intention. A German writer, considering the question of
intention as a test of legal consequences, suggests the following situ-
ation. 22 A young man and a young woman decide to get married.
Each has a thousand dollars. They decide to begin a business with
these funds, and the young lady gives her money to the young man
for this purpose. Was the intention to form a joint venture or a
partnership? Did they intend that the young man be an agent or a
trustee? Was the transaction a gift or a loan? If the couple should
subsequently visit a tax attorney and discover that it is in their
interest that the transaction be viewed as a gift, it is submitted that
they could, with complete honesty, so remember it. On the other
hand, should their engagement be broken and the young woman
consult an attorney for the purpose of recovering her money, she
could with equal honesty remember that her intention was to make
a loan.
Assume that your client, on trial for his life in a first-degree
murder case, has killed another man with a penknife but insists
that the killing was in self-defense. You ask him, "Do you customarily
carry the penknife in your pocket, do you carry it frequently or
infrequently, or did you take it with you only on this occasion?" He
replies, "Why do you ask me a question like that?" It is entirely
appropriate to inform him that his carrying the knife only on this
occasion, or infrequently, supports an inference of premeditation,
while if he carried the knife constantly, or frequently, the inference

20. See Paul, supra note 9.

21. Even this kind of "objective fact" is subject to honest error. See note 16 supra.
22. WuRzEL, DAs jiuscHE DENKEN 82 (1904), translated in FuLtaa, BAsic CON-
Tmucr LAW 67 (1964).
1480 Michigan Law Review [Vol. 64:1469

of premeditation would be negated. Thus, your client's life may

depend upon his recollection as to whether he carried the knife
frequently or infrequently. Despite the possibility that the client
or a third party might infer that the lawyer was prompting the client
to lie, the lawyer must apprise the defendant of the significance of
his answer. There is no conceivable ethical requirement that the
lawyer trap his client into a hasty and ill-considered answer before
telling him the significance of the question.
A similar problem is created if the client has given the lawyer
incriminating information before being fully aware of its signifi-
cance. For example, assume that a man consults a tax lawyer and
says, "I am fifty years old. Nobody in my immediate family has lived
past fifty. Therefore, I would like to put my affairs in order. Spe-
cifically, I understand that I can avoid substantial estate taxes by
setting up a trust. Can I do it?" The lawyer informs the client that
he can successfully avoid the estate taxes only if he lives at least
three years after establishing the trust or, should he die within three
years, if the trust is found not to have been created in contemplation
of death. The client then might ask who decides whether the trust
is in contemplation of death. After learning that the determination
is made by the court, the client might inquire about the factors on
which such a decision would be based.
At this point, the lawyer can do one of two things. He can refuse
to answer the question, or he can inform the client that the court
will consider the wording of the trust instrument and will hear
evidence about any conversations which he may have or any letters
he may write expressing motives other than avoidance of estate
taxes. It is likely that virtually every tax attorney in the country
would answer the client's question, and that no one would consider
the answer unethical. However, the lawyer might well appear to
have prompted his client to deceive the Internal Revenue Service
and the courts, and this appearance would remain regardless of the
lawyer's explicit disclaimer to the client of any intent so to prompt
him. Nevertheless, it should not be unethical for the lawyer to give
the advice. -
In a criminal case, a lawyer may be representing a client who
protests his innocence, and whom the lawyer believes to be innocent.
Assume, for example, that the charge is assault with intent to kill,
that the prosecution has erroneous but credible eyewitness testimony
against the defendant, and that the defendant's truthful alibi wit-
ness is impeachable on the basis of several felony convictions. The
prosecutor, perhaps having doubts about the case, offers to permit
June 1966] The Three Hardest Questions 1481

the defendant to plead guilty to simple assault. If the defendant

should go to trial and be convicted, he might well be sent to jail
for fifteen years; on a plea of simple assault, the maximum penalty
would be one year, and sentence might well be suspended.
The common practice of conveying the prosecutor's offer to the
defendant should not be considered unethical, even if the defense
lawyer is convinced of his client's innocence. Yet the lawyer is clearly
in the position of prompting his client to lie, since the defendant
cannot make the plea without saying to the judge that he is pleading
guilty because he is guilty. Furthermore, if the client does decide to
plead guilty, it would be improper for the lawyer to inform the
court that his client is innocent, thereby compelling the defendant
to stand trial and take the substantial risk of fifteen years' imprison-
23
ment.
Essentially no different from the problem discussed above, but
apparently more difficult, is the so-called Anatomy of a Murder situ-
ation.24 The lawyer, who has received from his client an incriminat-
ing story of murder in the first degree, says, "If the facts are as you
have stated them so far, you have no defense, and you will probably
be electrocuted. On the other hand, if you acted in a blind rage,
there is a possibility of saving your life. Think it over, and we will
talk about it tomorrow." As in the tax case, and as in the case of
the plea of guilty to a lesser offense, the lawyer has given his client
a legal opinion that might induce the client to lie. This is infor-
mation which the lawyer himself would have, without advice, were
he in the client's position. It is submitted that the client is entitled to
have this information about the law and to make his own decision
as to whether to act upon it. To decide otherwise would not only
penalize the less well-educated defendant, but would also prejudice
23. In a recent case, the defendant was accused of unauthorized use of an auto-
mobile, for which the maximum penalty is five years. He told his court-appointed
attorney that he had borrowed the car from 'a man known to him only as "Junior,"
that he had not known the car was stolen, and that he had an alibi for the time of
the theft. The defendant had three prior convictions for larceny, and the alibi was
weak. The prosecutor offered to accept a guilty plea to two misdemeanors (taking
property without right and petty larceny) carrying a combined maximum sentence
of eighteen months. The defendant was willing to plead guilty to the lesser offenses,
but the attorney felt that, because of his client's alibi, he could not permit him to do
so. The lawyer therefore informed the judge that he had an ethical problem and
asked to be relieved. The attorney who was appointed in his place permitted the
client to plead guilty to the two lesser offenses, and the defendant was sentenced to
nine months. The alternative would have been five or six months in jail while the
defendant waited for his jury trial, and a very substantial risk of conviction and
a much heavier sentence. Neither the client nor justice would have been well served
by compelling the defendant to go to trial against his will under these circumstances.
24. See TRAVER, ANATOMY OF A MURDR (1958).
1482 Michigan Law Review [Vol. 64:1469

the client because of his initial truthfulness in telling his story in

confidence to the attorney.

III. CONCLUSION
The lawyer is an officer of the court, participating in a search
for truth. Yet no lawyer would consider that he had acted unethi-
cally in pleading the statute of frauds or the statute of limitations
as a bar to a just claim. Similarly, no lawyer would consider it un-
ethical to prevent the introduction of evidence such as a murder
weapon seized in violation of the fourth amendment or a truthful
but involuntary confession, or to defend a guilty man on grounds
of denial of a speedy trial.25 Such actions are permissible because
there are policy considerations that at times justify frustrating the
search for truth and the prosecution of a just claim. Similarly, there
are policies that justify an affirmative answer to the three questions
that have been posed in this article. These policies include the main-
tenance of an adversary system, the presumption of innocence, the
prosecution's burden to prove guilt beyond a reasonable doubt, the
right to counsel, and the obligation of confidentiality between law-
yer and client.
POSTSCRIP#
At the beginning of this article, some common question-begging
responses were suggested. Professor John Noonan has added yet
another: the role of the advocate is to promote a wise and informed
judgment by the finder of fact. 26 This is the position of the 1958
25. Cf. Kamisar, Equal Justice in the Gatehouses and Mansions of American Crim-
inal Procedure, in CRIMINAL JusTcE IN OUR TimE 77-78 (Howard ed. 1965):
Yes, the presence of counsel in the police station may result in the suppression
of truth, just as the presence of counsel at the trial may, when a client is adviscd
not to take the stand, or when an .objection is made to the admissibility of trust-
worthy, but illegally seized, "real" evidence.
If the subject of police interrogation not only cannot be "coerced" into making
a statement, but need not volunteer one, why shouldn't he be so advised? And
why shouldn't court-appointed counsel, as well as retained counsel, so advise him?
26. Noonan, The Purposes of Advocacy and the Limits of Confidentiality, 64 Micai.
L. REv. 1485 (1966). Professor Noonan adds a further petitio principii when he argues,
in the language of Canon 15, that the lawyer "must obey his own conscience." It may
be that the wisest course is to make each lawyer's conscience his ultimate guide. It
should be recognized, however, that this view is wholly inconsistent with the notion
of professional ethics which, by definition, supersede personal ethics. In addition, it
should be noted that personal ethics, in the context of acting in a professional capac-
ity for another, can require a conclusion different from that which one might reach
when acting for himself. For example, the fact that a lawyer would not commit per-
jury on his own behalf does not in any way preclude a decision to put on the witness
stand a client who intends to.perjure himself in his behalf.
t Because Mr. Bress' article was not received in time for Professor Freedman to
prepare a reply, his comments in this brief postscript are restricted to Professor
Noonan's article.-Ed.
June 1966] The Three Hardest Questions 1483

Joint Conference on Professional Responsibility of the Association

of American Law Schools and of the American Bar Association, and
it is, of course, the primary basis of Professor Noonan's argument.
Professor Noonan graciously compliments me on "[making the]
principles vital by showing how they would govern particular
cases." 27 He adds, "this scholarly explication of what is often taken
for granted serves a very useful function." 28 At the risk of appearing
ungrateful, I am compelled to observe that Professor Noonan's own
position fails in precisely that respect. His general proposition sim-
ply does not decide specific cases, nor does he make the effort to
demonstrate how it might do so. Indeed, Professor Noonan occa-
sionally appears to be struggling against confronting the particular
cases.
For example, how would the Joint Conference principle resolve
the situation where the prosecution witness testifies that the crime
was committed at 10:15, and where the lawyer knows that his client
has an honest alibi for 10:15, but that he actually committed the
crime in question at 10:45?29 Can the lawyer refuse to present the
honest alibi? Is he contributing to wise and informed judgment
when he does so? If he should decide that he cannot present the
alibi, how should he proceed in withdrawing from the case? Does
it matter whether he has forewarned his client that he would with-
draw if he discovers that his client is in fact guilty? Will it con-
tribute to wise and informed judgment if the client obtains another
lawyer and withholds from him the fact of his guilt?30 Similar ques-
tions might be asked regarding the problem of the guilty plea by
the innocent defendant. 31 One might ask, in addition, whether such
a plea is really a lie to the court, in the moral sense, or whether it is
just a convention, which is Professor Noonan's view of the not-
guilty plea by the guilty defendant.
In the situation involving avoidance of estate taxes, 32 the Joint
Conference principle would probably require that the lawyer refuse
to answer his client's question. Such a result would be required be-
cause, in the assumed circumstances, an answer could be justified as
contributing to wise and informed judgment only by what Professor
27. Noonan, supra note 26, at 1486.
28. Ibid.
29. See note 16 supra.
g0. As has been noted earlier, the most significant practical difference between the
lawyer who knows the truth and the one who does not is that only the former will
have reason to attempt to dissuade the client from perjuring himself.
31. See note 23 supra.
32. See text accompanying note 23 supra.
1484 Michigan Law Review

Noonan characterizes as "brute rationalization."83 However, is it

realistic to disregard as irrelevant the undoubted fact that virtually
every tax lawyer in the country would answer the client?
Finally, Professor Noonan argues that it would be better to let
the truthful (but misleading) witness remain unimpeached and to
trust the trier of fact to draw the right conclusions. This is necessary,
he contends, because "repeated acts of confidence in the rationality
of the trial system are necessary if the decision-making process is to
approach rationality."' 4 This means that the fortunes, liberty, and
lives of today's clients can properly be jeopardized for the sake of
creating a more rational system for tomorrow's litigants. It is hard
to believe that Professor Noonan either wants or expects members
of the bar to act on this advice.
Thus, Professor Noonan does not realistically face up to the
lawyer's practical problems in attempting to act ethically. Unfor-
tunately, it is precisely when one tries to act on abstract ethical
advice that the practicalities intrude, often rendering unethical the
well-intended act.35
33. Noonan, supra note 26, at 1488.
34. Id. at 1487-88.
35. See, e.g., note 15 supra.