Silber on Monroe Freedman and Domestic Anticommunism

Norman I. Silber, Hofstra University School of Law, has posted Monroe Freedman and the Morality of Dishonesty: Multidimensional Legal Ethics as a Cold War Imperative, which appears in the Hofstra Law Review 44 (2016): 1127-60.

This Article reaches into the personal history of Monroe Freedman, a pioneer in multi-dimensional legal ethics, to advance an explanation for his advocacy and his signal contributions to legal ethics - particularly his landmark article of 1966, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, where he inquired into situations in which candor might not be either moral or professional. It argues that his outspoken defense of lying as sometimes necessary and even moral behavior in the adversary system should be understood as an outgrowth of his early religious perspective about the nature of moral obligations, as well as a response to excesses of the Cold War that touched him personally. It contends that Monroe’s confidence in the fundamental fairness of government rules, processes, and punishments—and that of hundreds of other young lawyers - was undermined by experience with the National Lawyers Guild, inquisitions, and FBI surveillance during the 1950s, and that understanding the history does at least as much to explain his attitude about ethics in an adversary system as his better-known encounters with the problems of criminal defense lawyers in more immediate contexts. Focusing on these earlier events offers insight not just into Monroe and the genesis of his position in that article, but offers an alternative explanation for the modern development of multidimensional professional ethics.