1 While New York City may be unrepresentative of the country in many respects, Mann's decision to focus on white-collar defense lawyers in that city makes sense. White-collar practice is disproportionately federal practice and therefore unlikely to vary dramatically from state to state. And since New York remains a commercial and financial hub, a large percentage of the country's white-collar crime cases are handled there.Google Scholar

2 Books written by criminal defense lawyers about their own cases are apt to suffer this fate at the hands of reviewers. See, e.g., James Eisenstein, How Did He Defend Those People? Kunen on Unpopular Defendants, 1985 A.B.F. Res. J. 157, 162 (essay reviewing James Kunen, How Can You Defend Those People? The Making of a Criminal Lawyer) (“I get the impression Kunen is reluctant to come down too hard on a system with which he himself is so intimately involved”); Jeremy G. Epstein, The Prince of the Podium: Reflections on The Best Defense, 1983 Wis. L. Rev. 167, 170 (“Dershowitz … has shaped his presentation to disclose only what is favorable to the cause of his client”).Google Scholar

3 John P. Heinz & Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar (New York: Russell Sage Foundation; Chicago: American Bar Foundation, 1982).Google Scholar

4 See, e.g., Abraham Blumberg, The Practice of Law as Confidence Game, 1 Law & Soc'y Rev. 15 (1967).Google Scholar

5 Id. at 24, 28, 35–37.Google Scholar

6 Hazard, Geoffrey C., Jr., Conscience and Circumstance in Legal Ethics, 1 Social Responsibility: Journalism, Law, Medicine 36 (1975).Google Scholar

7 See, e.g., Abe Krash, Professional Responsibility to Clients and the Public Interest: Is There a Conflict? 55 Chi. B. Rec. 31 (1974).Google Scholar

8 Since Mann's interviewees and the other “notables” on Mann's list of white-collar defense specialists were all men (at 255), I shall use male pronouns throughout this essay in referring to white-collar criminal defense lawyers.Google Scholar

9 See Code of Professional Responsibility DR 7–104 (A)(l).Google Scholar

10 See United States v. Fayer, 523 F.2d 661 (2d Cir. 1975) (advice to nonclient to plead Fifth Amendment in grand jury proceeding could be obstruction of justice, even in absence of threat or bribe). Compare Code of Professional Responsibility DR 7–104 (A)(2) (lawyer may not give advice to unrepresented party whose interests may conflict with those of his client) with Model Rules of Professional Conduct Rule 3.4 (f) (lawyer may request employee of a client to refrain from volunteering information to other party if the employee's interest will not be adversely affected by so refraining). See also ABA Defense Function Standards £ 4–4.3 (b) (1980 ed.) (absent corrupt motive, defense counsel may advise potential prosecution witness of the right not to testify on Fifth Amendment grounds).Google Scholar

11 Model Rules of Professional Conduct Rule 3.1 provides: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding … may nevertheless so defend the proceeding as to require that every element of the case be established.”Google Scholar

12 See Luban, David, The Adversary System Excuse, in David Luban, ed., The Good Lawyer: Lawyers' Roles and Lawyers' Ethics 83 (Totowa, N.J.: Rowman & Allanheld, 1983).Google Scholar

13 See, e.g., Alan Goldman, The Moral Foundations of Professional Ethics ch. 3 (Totowa, N.J.: Rowman & Allanheld, 1980); Gerald Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U.L. Rev. 63 (1980); William Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wis. L. Rev. 29; Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Hum. Rts. 1 (1975).Google Scholar

14 See Schneyer, Ted, Moral Philosophy's Standard Misconception of Legal Ethics, 1984 Wis. L. Rev. 1529, 1532–37.Google Scholar

15 For a description and defense of the criminal defense lawyer's “man-in-trouble” perspective, see David Mellinkon”, The Conscience of a Lawyer, esp. 270–74 (St. Paul: West Publishing Co., 1973).Google Scholar

16 The fact that the white-collar defense lawyer typically comes into a matter while it is under investigation and before the involvement of any genuine tribunal to whom he would owe a duty of candor, a sort of nonadversary system excuse, may be another contextual factor that colors his perspective, but Mann cites no evidence on this point. Cf. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 352 (1985) (IRS not a tribunal for purposes of a lawyer's duty to reveal adverse legal authority; thus, lawyer has no duty to disclose authority adverse to position taken on client's income tax return).Google Scholar

17 See Landon, Donald, Clients, Colleagues, and Community: The Shaping of Zealous Advocacy in Country Law Practice, 1985 A.B.F. Res. J. 81, 107.Google Scholar

18 See Hazard, Geoffrey C., Jr., Ethics in the Practice of Law 47–53 (New Haven, Conn.: Yale University Press, 1978).Google Scholar

19 Niebuhr, Reinhold, Moral Man and Immoral Society 28 (New York: Scribner's, 1932). see also Sissela, Bok, Lying: Moral Choices in Public and Private Life 157 (New York: Pantheon, 1978) (willingness of lawyers to use perjured testimony on a client's behalf attributed in part to a “tribal ethic of avoiding harm to oneself and one's own”).Google Scholar

20 Alan Goldman argues, e.g., that when lawyers engage in morally questionable behavior for their clients, they are motivated by professional principles which, far from being the solution to lawyer misbehavior, turn out to be a large part of the problem. “The central problem,” he says, “is not that [lawyers] often fail to live up to their unique official codes and professional principles; nor that they lack the will to enforce them. It is rather that they often come to assume without question that they ought to live up to them.” Goldman, supra note 12, at 33.Google Scholar

21 Simon, supra note 12, at 30.Google Scholar

22 See Code of Professional Responsibility DR 7–102 (A)(7); Model Rules of Professional Conduct Rule 1.2 (d).Google Scholar

23 The Code of Professional Responsibility makes no effort to define the crucial term “knowingly”; the Model Rules say that “knowingly” denotes “actual knowledge,” but add that knowledge “may be inferred from circumstances.” Model Rules of Professional Conduct, Terminology. An early draft of the Model Rules would have prohibited a lawyer from giving advice which she can “reasonably foresee” will be used by a client to further an illegal course of conduct. See Model Rules of Professional Conduct, Rule 2.3 (a) (Discussion Draft, Jan. 30, 1980).Google Scholar

24 Mann ultimately seems to despair of solving any of the problems of “inappropriate information control” in white-collar defense work by amending ethics rules. He suggests “changing procedural advantages between prosecution and defense” instead (at 249), but the only procedural change he discusses-allowing the government to search and seize all workplace records without probable cause, rather than forcing it to rely on subpoenas-seems politically and constitutionally unattainable.Google Scholar

25 See Mellinkoff, , supra note 14.Google Scholar

26 Cf. Anders v. California, 386 U.S. 738 (1967) (appointed counsel must submit appellate brief on behalf of convicted defendant even though no nonfrivolous arguments for reversal appear; this will merely afford indigent defendants the advocacy nonindigents could obtain).Google Scholar

27 Model Rules of Professional Conduct Rule 1.2 (a).Google Scholar

28 Code of Professional Responsibility DR 7–101 (A)(l).Google Scholar

29 Id, DR 7–101 (A)(3).Google Scholar

30 See the works cited in notes 11 and 12 supra.Google Scholar

31 See Schneyer, , supra note 13.Google Scholar

32 Other information may also be shared to a client's detriment (at 89–93).Google Scholar

33 See Kirby v. Illinois, 406 U.S. 682 (1972).Google Scholar

34 Cuyler v. Sullivan, 446 U.S. 335 (1980); Holloway v. Arkansas, 435 U.S. 475 (1978).Google Scholar

35 See Code of Professional Responsibility DR 5–105 (A), (D); Model Rules of Professional Conduct Rules 1.7, 1.10 (a).Google Scholar

36 See id. Rule 1.10 comment (definition of a “firm”); cf. U.S. v. Turchi, 645 F. Supp. 558 (E.D. Pa. 1986) (previously affiliated lawyers who currently shared office space and referred cases to one another, and who had discussed common trial strategy in immediate case, not deemed to be engaged in multiple representation of co-defendants for purposes of evaluating one defendant's argument for reversal of conviction on grounds of conflict of interest and ineffective assistance of counsel).Google Scholar

37 Code of Professional Responsibility DR 4-t01 (C)(3).Google Scholar

38 See Model Rules of Professional Conduct Rule 1.6.Google Scholar

39 Model Rules of Professional Conduct Rules 3.3 (a)(4), (b).Google Scholar

40 See, e.g., Monroe Freedman, Lawyers' Ethics in an Adversary System (Indianapolis: Bobbs-Merrill, 1975).Google Scholar

41 Id. at 4–5.Google Scholar

42 Freedman, Monroe, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1469, 1473 (1966).Google Scholar

43 Personally vouching for one's clients in informal meetings and negotiations with prosecutors appears to be an important aspect of the white-collar defense lawyer's work. This contrasts sharply with the professional expectation that lawyers in court will refrain from asserting their personal knowledge of facts or their personal opinions as to the guilt or innocence of an accused. See Code of Professional Responsibility DR 7–106 (C)(3) & (4). Being so often called upon to vouch for their clients' behavior, white-collar defense lawyers may feel a distinctive need to divert incriminating information from their own attention.Google Scholar

44 See Freedman, , supra note 39, at n.73 & n.* (although lawyer should allow client to perjure himself when lawyer knows through client confidences that the testimony will be false, lawyer himself should not lie for client).Google Scholar