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HOFSTRA IAW REVIEW

Volume 6, No. 3, Part IISpring 1978

HEMPSTEAD, NEW YORK 11550

I Cite as 6 HOFSTRA L. REV. 1

HOFSTRA IAW REVIEWMEMBER, NATIONAL CONFERENCE OF LAW REVIEWS

Volume 6, No. 3, Part IISpring 1978

NEAL ROBERT PLATT

Articles EditorsJOAN A. KING

CAROL A. LIEB

Articles & Book ReviewsEditor

NANCY B. MCALLISTER

Editor-in-ChiefSCOTT M. HIMES

Managing Editors

Notes if CommentsEditors

STEVEN M. COHENJULIE D. FAY

TERRI S. FEINSTEINSARA SILL

SUSAN A. MILLS

Recent DevelopmentsEditor

RENEE G. MAYER

Research EditorsSANFORD M. ADLERROBERTA BENDER

JANET E. BELKINJAMES A. BERNSSTEWART M. CASPERHARRIS N. COGANDAVID M. COHEN

PATTI ANN ALLEVAGARY A. BARASHSHARON F. CARTONDEBRA L. DINOWITZMARTHA T. EIDER-ORLEYKIM FASSANDREA BAYER FELDERMARC S. FLEISHERMICHAEL I. FRIEDMANCAROLYN GELLER

Associate EditorsMICHAEL RICKY GOLDENNESSA E. MOLLMICHAEL DONALD PATRICKRANDI B. ROSENBLATTLYNN F. SAMUELS

StaffCLIFFORD M. GERBERTIMOTHY GILBERTNANCY E. GOLDJEFFREY GROSSMANSHIRLEY JAYLESLEY BETH MAGARILBARBARA BROOKE MANNINGDEBORAH C. MORITZJOHN PACHT

EZRA D. SINGERSTEVEN C. SPRONZRANDYE BETH STEINLIAM FIONNBARRA TWOMEYMARILYN LABB ZEITLAN

ABIGAIL I. PETERSENCAROL ANN PISANOMARGOT RAUCATHERINE SAMUELSNEAL STEVEN SCHELBERGKATHE J. TYRRELLJULIE WACHSTHOMAS C. WALESPETER G. WARRENDEBORAH BLACK ZWANY

LEON FRIEDMANFaculty Advisors

AARON D. TWERSKIEUGENE M. WYPYSKI

HOFSTRA UNIVERSITY SCHOOL OF LAWADMINISTRATIVE OFFICERS

Aaron D. Twerski, B.S., J.D., Interim Dean and Professor of LawStuart Rabinowitz, B.A., J.D., Associate Dean and Associate Professor of LawMarilyn Monter, B.A., J.D., Assistant DeanEugene M. Wypyski, LL.B., M.L.S., Law Librarian and Professor of LawKaren Bragg, B.A., M.S., J.D., Reference LibrarianRichard P. Cronin, B.A., J.D., Director of PlacementEtta Fafarman, Administrative Assistant for AdmissionsLore Furst, Assistant to the DeanDeborah Goldstein, B.A., M.L.S., Acquisitions LibrarianCharlotte Z. Hoffer, B.S., Assistant to the DeanEllen Mawhinney, B.S., M.L.S., Head CatalogerDavid Weiss, B.A., J.D., Assistant Law Librarian

FACULTYBurton C. Agata, B.A., J.D., LL.M., Professor of LawMarina Angel, B.A., J.D., Associate Professor of LawLeonard B. Boudin, B.S.S., LL.B., Distinguished Visiting ProfessorLinda K. Champlin, B.A., LL.B., Associate Professor of LawHoward I. Cohen, B.S., M.A., LL.B., Special Professor of LawDavid A. Diamond, A.B., LL.B., LL.M., Associate Professor of LawStuart J. Filler, B.B.A., M.B.A., J.D., Professor of Law and Director of Clinical

ProgramsMonroe H. Freedman, A.B., LL.B., LL.M., Professor of LawLeon Friedman, A.B., LL.B., Associate Professor of LawVictor Futter, B.A., LL.B., Special Professor of LawWilliam R. Ginsberg, B.A., J.D., Associate Professor of LawJohn DeWitt Gregory, B.A., J.D., Professor of LawLinda Hirschson, A.B., LL.B., LL.M., Associate Professor of Law (on leave 1977-78)David K. Kadane, B.A., LL.B., Professor of LawSusan M. Kane, A.B., J.D., Research FellowLawrence W. Kessler, B.A., J.D., Associate Professor of LawEric Lane, B.A., M.A., J.D., Associate Professor of LawMalachy T. Mahon, B.A., J.D., Professor of LawAbraham P. Ordover, B.A., J.D., Professor of LawDaniel Q. Posin, Jr., B.A., M.A., J.D., LL.M., Associate Professor of LawAlan N. Resnick, B.A., J.D., LL.M., Associate Professor of LawSheila Rush, B.A., J.D., Professor of LawDavid G. Sacks, B.A., LL.B., Special Professor of LawEric J. Schmertz, B.A., J.D., Professor of LawStephen R. Senie, B.A., LL.B., Special Professor of LawRonald H. Silverman, B.A., J.D., Associate Professor of LawBrenda S. Soloff, A.B., LL.B., Associate Professor of LawHarvey W. Spizz, B.A., J.D., Special Professor of LawJacob Weissman, A.B., J.D., Ph.D., Professor of EconomicsVictor J. Ambrose, B.A., J.D., Clinical Instructor if Staff Attorney, Community Le-

gal Assistance CorporationSusan J. Bryant, B.A., J.D., Clinical Instructor if Staff Attorney, Community Legal

Assistance CorporationSondra R. Harris, B.A., J.D., Clinical Instructor and Staff Attorney, Tax Clinic

Community Legal Assistance CorporationSusan Kluewer, A.B., J.D., Clinical Instructor and Staff Attorney, Community Legal

Assistance CorporationCharles J. McEvily, A.B., J.D., Clinical Instructor and Executive Director of Com-

munity Legal Assistance CorporationMarjorie H. Mintzer, A.B., J.D., Clinical Instructor and Staff Attorney, Community

Legal Assistance Corporation

HOFSTRA JAW REVIEWVolume 6, No. 3, Part II Spring 1978

CONTENTS

SYMPOSIUM ON PROFESSIONAL RESPONSIBILITY

DEDICATED TO MONROE H. FREEDMAN

INTRODUCTION: A PROFESSIONAL AGENDA............................... Andrew L. Kaufman 619

THE PERRY MASON PERSPECTIVE AND OTHERS: A CRITIQUE

OF REDUCTIONIST THINKING ABOUT THE ETHICS OFUNTRUTHFUL PRACTICES BY LAWYERS FOR "INNOCENT"

DEFENDANTS ...................... Carl M. Selinger 631

THE CRIMINAL DEFENDANT WHO PROPOSES PERJURY: RE-

THINKING THE DEFENSE LAWYER'S DILEMMA

.................................. Norman Lefstein 665

THE ATTORNEY-CLIENT PRIVILEGE AND CLIENT'S CON-STITUTIONAL RIGHTS ............. David E. Seidelson 693

ZEAL AND FRIVOLITY: THE ETHICAL DUTY OF THE APPEL-LATE ADVOCATE TO TELL THE TRUTH ABOUT THE LAw

................................ H. Richard Uviller 729ESSAYS FROM THE BENCH AND BAR

"ASSISTANCE OF COUNSEL FOR HIS DEFENCE": THE PROBLEM

OF CONFLICTS OF INTEREST ............ Jacob Mishler 739

EVEN IF You THINK YOUR CLIENT WILL WIN, YOU MAY

HAVE THE RESPONSIBILITY TO URGE SETTLEMENT ANY-

WAY .................................. Sol W achtler 745

JUDICIAL LEGITIMACY AND THE DISINTERESTED JUDGE

..................... M. H. Hoeflich and Jan G. Deutsch 749

ETHICS, FEDERAL PROSECUTORS, AND FEDERAL COURTS:SOME RECENT PROBLEMS .......... Lee A. Adlerstein 755

CERTIFICATION OF TRIAL LAWYERS-THE JUDICIOUS

STRUCTURING OF THE AMERICAN LEGAL PROFESSION..................................... Harry Cohen 793

ACCESS TO STATE BAR EXAMINATIONS FOR FOREIGN-

TRAINED LAW SCHOOL GRADUATES.............................. Douglass G. Boshkoff 807

Published quarterly by the Hofstra Law Review Association. The current subscription rate istwelve dollars per volume. Individual issues are available at four dollars per copy. Subscrip-tion renewals will be automatic unless notice to the contrary is received. All communicationsshould be addressed to: Hofstra Law Review Association, Hofstra University School of Law,Hempstead, New York 11550.

0 Copyright 1978 by the Hofstra Law Review Association.

This issue is dedicated to

MONROE H. FREEDMAN

MONROE H. FREEDMAN

The Board of Editors warmly dedicates this Symposium onProfessional Responsibility to Monroe H. Freedman, Professor ofLaw at the Hofstra University School of Law and Dean of the LawSchool from 1973 to 1977. During Professor Freedman's tenure asDean, he further established the Law School as an institutioncommitted to superior legal education and to progressive legalthought. Also during these important formative years for the LawSchool, Professor Freedman helped create a unique and excitingatmosphere for the study of law. Consequently, Professor Freed-man has indelibly influenced the development of the Law School.

As a scholar and practitioner, Professor Freedman has longbeen identified with issues of professional responsibility. Fre-quently a critic of traditional views of professional conduct, he hasoften raised long-ignored ethical questions. Thus, ProfessorFreedman's scholarship has contributed significantly to the legalcommunity's current self-examination. Accordingly, it is appro-priate that we dedicate this Symposium to Professor Freedman.

This Symposium is a further exploration of many of the long-ignored questions of professional responsibility. The contributionsin this Symposium are important not only for the answers suggestedbut also for the questions asked--questions which do not merelyconfront isolated issues of professional responsibility but, morefundamentally, examine the proper role of the bar in contemporarysociety.