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Influential Ethics Professor Monroe H. Freedman Discussed GM’s Internal Investigation

published April 21, 2014

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Monroe H. Freedman
Professional Overview

Recent hearings in the House and Senate are showing that GM already knew about some of the recent defects in the ignition switches in some of its vehicles. However, this information was not shared with other parts of the company, which has led to deaths that could have been prevented. We sat down with Monroe H. Freedman, an influential ethics professor at Maurice A. Deane School of Law, who has very insightful opinions regarding the case with GM.

According to a recent article featured in Corporate Counsel, "GM In-House Lawyers Pulled Into Ignition Switch Probe," Mr. Freedman is one of the critics who question how law firms that have represented GM can be objective about GM's internal investigation. He told Reuters, "There's a conflict of interest. A reasonable person might question whether [Jenner & Block] wants to curry favor with GM, so it can maintain a good relationship and obtain future work." Mr. Freedman has also commented that as past counsel for GM, the firm has an incentive to protect its own involvement in their conduct. If he were advising GM, what would he suggest they do in their current situation? "It's the client's decision whether to try to cover up their guilty conduct or to get all the information out as quickly as possible. My inclination would be the latter, but, as I said, it's the client's call."

"GM spokesman Selim Bingol told Reuters there is no conflict of interest, and Valukas" (outside counsel Anton Valukas of Jenner & Block who is leading the internal probe for GM) "has been charged to go where the facts take him and give the company an unvarnished report on what happened. He is the ideal person to do that, given his understanding of our business and his reputation for adhering to the highest standards," according to the same article. Does Mr. Freedman disagree with Selim Bingol? "Yes. Whether in a court of law or in the court of public opinion, whatever Jenner and Block says is highly questionable and subject to impeachment on grounds of self-interest."

Monroe H. Freedman is a professor of law and the former dean at the Maurice A. Deane School of Law at Hofstra University. From 2007 to 2012, he was a visiting professor at Georgetown University Law Center. Mr. Freedman also lectured annually on lawyers' ethics at Harvard Law School for thirty years.

Freedman's first ethics book, Lawyers' Ethics in an Adversary System (1975), earned the American Bar Association's Gavel Award Certificate of Merit. There were approximately three dozen positive reviews of the book, which includes the George Washington Law Review ("undoubtedly, the best book published in the field of legal ethics"), ABA Litigation ("thorough and scholarly"), and the ABA Journal ("scholarly ... powerful"). In the Harvard Civil Rights/Civil Liberties Law Review, New York University Professor Norman Dorsen described the book as one of the few "monumental contributions to legal education in the past generation." The ABA Certificate also depicts the book as "outstanding" in its examination of "the most difficult ethical problems a lawyer faces."

Mr. Freedman's current book, Understanding Lawyers' Ethics (4th ed., 2010) (with Abbe Smith), has been required reading at law schools, which includes the University of California, Berkeley, Harvard, the University of Minnesota, and Georgetown. His book is also recommended or assigned at other law schools. Understanding Lawyers' Ethics is being translated into Chinese and has been used in training programs for the bar in Canada. The Professional Lawyer, published by the ABA Center for Professional Responsibility, portrays the book as "thoughtful and eloquent" and "idealistic in the best sense of the word, pragmatic, but not cynical, and rich with practical examples."

Mr. Freedman has written numerous articles regarding lawyers' ethics, including "The Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions," which has been excerpted and republished more than four dozen times in academic publications. Professor William Simon wrote: "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 [in 1966] of an article by Monroe Freedman ... Of the two events, Watergate is the most famous, but ... the least important."

Mr. Freedman is the recipient of the Martin Luther King Award for "decades of work to advance human dignity and social justice." He has also received the American Bar Association's highest award for professionalism, in appreciation of "a lifetime of original and influential scholarship in the field of lawyers' ethics." Colleagues in the field of lawyers' ethics have called Mr. Freedman "the conscience of our profession." His peers noted, "If we had to pick the one person who first created modern legal ethics as a serious academic specialty, it would be Monroe Freedman." According to the Journal of the Legal Profession, "[Monroe Freedman's] thinking, writing and lectures ... have been the primary creative force in legal ethics today, both in the practice of law and in legal education."

He was the first legal scholar to dispute that the Bar's restrictions on lawyer advertising violates the First Amendment. Mr. Freedman pointed out that the anti-advertising policies impeded information about lawyers' services from less educated and less sophisticated individuals who most need the information. He was also the first to analyze the ethics of coaching witnesses and to discuss the relevance of scholarship in behavioral psychology; to argue that the lawyer's decision to represent a client is a moral decision and subject to the moral scrutiny of others; to argue that law professors' sexual relations with students should be recognized as unethical conduct; to argue that lawyers should be permitted to reveal information necessary to prevent death or serious bodily harm; and to attack restrictions on trial publicity by defendants and defense attorneys.

During the 1960s, Mr. Freedman was a consultant to the United States Civil Rights Commission and he was counsel to a number of civil rights organizations. He also served as chair of the National Capital Area Civil Liberties Union. On December 14, 1967, an evaluative report in Mr. Freedman's FBI file asserted: "Freedman has been a member of the National Association for the Advancement of Colored People and of the American Civil Liberties Union. He has been extremely outspoken, and his irresponsible mountings have received an inordinate amount of publicity."

In 1963, Mr. Freedman served as the first volunteer general counsel of a gay rights organization called Dr. Franklin Kameny's Mattachine Society. He currently consults pro bono in Guantánamo Bay and death penalty cases.

Mr. Freedman also served as the first executive director of the U.S. Holocaust Memorial Council at the request of Elie Wiesel. During his tenure (1980-1982), the Congress permitted the establishment of the council and the membership was approved and selected by the president. The land for the Holocaust Memorial was found and its use to construct the museum was officially approved by the government. President Ronald Reagan celebrated the Holocaust Memorial Day in the East Room of the White House.

Mr. Freedman was born and raised in Mt. Vernon, NY. He received his A.B. from Harvard University in 1951 and earned his J.D. and LL.M. in 1954 and 1956 respectively from Harvard. Mr. Freedman has been listed for many years in Who's Who in America, Who's Who in American Law, and Who's Who in the World.

When the professor isn't teaching, he enjoys reading, opera, and theater. Mr. Freedman said, "I enjoy theater: mostly off-Broadway in NY; Harman Shakespeare Theater in DC; Shaw Festival in Niagra-on-the-Lake, Canada; Shakespeare Festival in Stratford, Canada. My favorite playwrights are Shakespeare, Shaw, Pirandello, and Stoppard." He is currently reading Deitrich Bonhoeffer's Letters and Papers from Prison and William Shakespeare's Henry IV, Part Two (Oxford edition).

Mr. Freedman's Memories and Motivations

When did you Mr. Freedman decide to go to law school? "I knew when I was about 7 years old that I would be a lawyer."

Does he have a most memorable law school experience? Mr. Freedman stated:
"My geography is abysmal. I answered a question about jurisdiction in Civil Procedure in which I assumed that Madison was a state separate from Wisconsin. Professor Richard Field said, 'Mr. Freedman, to take the tricky element out of the question, assume that the accident took place in the state of New York and a New York state official served the summons and complaint on the defendant in a hospital in New York City.' The next day, John Noonan (later to become a judge in the Ninth Circuit), who was in a different section of Civ. Pro., asked a group of us at lunch whether we had heard about the idiot in one of the other sections who thought that Madison was a state separate from Wisconsin."
What are Mr. Freedman practice areas? "Constitutional law; civil liberties; civil rights; criminal and civil trials and appeals; contracts."

What experience does he have in practice and teaching? Mr. Freedman explained:
"I had a low-level faculty position at Harvard Law School from 1954-1956, became a member of the bar in Massachusetts in 1955, practiced in a corporate firm in Philadelphia from 1956-1958, and started teaching at George Washington Law School in 1958. In 1971, I set up and directed a public interest law firm. In 1973, I became Dean at Hofstra University Law School (where I'm still a Professor of Law), lectured annually for 30 years on Trial Advocacy and Lawyers' Ethics at Harvard Law School, and was a Visiting Professor for five years at Georgetown Law Center."
What does Mr. Freedman teach at the Maurice A. Deane School of Law at Hofstra University? "I have taught a number of courses over the years. My favorite has always been Contracts. I now teach a Seminar in Lawyers' Ethics and a Seminar in Lawyers and Social Change."

Does he have his own practice, work in a law firm, or work in-house? "For years my practice consisted of consulting and testifying in federal and state courts throughout the country as an expert in lawyers' ethics. Now I do only pro bono consulting and testifying for defendants in death penalty and Guantanamo cases."

What is the best part of Mr. Freedman's job? "Working with students and seeing them develop lawyering skills, including analyzing legal problems, reading statutes and rules, developing a theory of a case, and making persuasive arguments."

What are his strengths and weaknesses as a lawyer? "Strengths: creative and innovative analysis, and persuasive briefs and memoranda. Weaknesses: Lack of knowledge of technology, which has become essential to competent practice."

Where does Mr. Freedman see himself in five years? "I'm 86 years old. I have no desire to be around then."

How does he want to be remembered? "As a loving husband, father, grandfather, great-grandfather, and brother."

Being Dean at Hofstra Law School, Mr. Freedman's Services During the 1960s and into the 1970s, First Executive Director of the U.S. Holocaust Memorial Council, Writing Engagements and Noteworthy Praise

How was Mr. Freedman's experience as Dean at Hofstra Law School (now the Maurice A. Deane School of Law at Hofstra University)? He noted:
"I thoroughly enjoyed it. I have strong views on legal education, and I was able to put them into effect. Also, when I became Dean, the students told me that when they applied for jobs in New York City, they found that lawyers were unaware that Hofstra had a law school. I made a point of speaking all over the country. The year I left the deanship four years later, seven of our students applied for jobs in California. All of the lawyers knew of Hofstra Law School, and all seven graduates got jobs."
In the 1960s and into the 1970s, Mr. Freedman served as chair of the National Capital Area Civil Liberties Union. In this organization he counseled with several civil rights organizations, was the first volunteer general counsel to a gay rights organization, was the first to recruit women for law school, was a consultant to the U.S. Civil Rights Commission, and represented indigent criminal defendants. Why was this type of work significant to him? "I have a compassion for those who are suffering, a respect for the autonomy and dignity of each individual, and an aversion to unfair discrimination."

At the request of Elie Wiesel, Mr. Freedman became the first Executive Director of the U.S. Holocaust Memorial Council. How does he feel having played a big part in the Holocaust Memorial Council? Mr. Freedman acknowledged:
"It was gratifying. During my time as Executive Director, we got authority from Congress to establish a Memorial in D.C., raised the private funds to build the Memorial, found the site, got the necessary approval from the District of Columbia, celebrated Holocaust Memorial Day in the East Room of the White House with President Ronald Reagan presiding, established the Memorial Council membership, and coped with President Jimmy Carter's anti-Semitism."
In addition to his books, Mr. Freedman has written scores of articles on lawyers' ethics and other topics. Will he continue his writing engagements? "Yes. I can't not write. Ideas get into my head, and I'm not comfortable until I have gotten them on paper. I'm now fortunate in having Professor Abbe Smith as a frequent co-author."

The Journal of the Legal Profession concluded: "[Monroe Freedman's] thinking, writing and lectures ... have been the primary creative force in legal ethics today, both in the practice of law and in legal education." How does it feel to be recognized for his work?

"The quotation that I most prize is an evaluative report by the FBI on December 14, 1967 (obtained through the Freedom of Information Act): 'Freedman has been a member of the National Association for the Advancement of Colored People and of the American Civil Liberties Union. He has been extremely outspoken, and his irresponsible mountings have received an inordinate amount of publicity.'"

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