Henry Friendly still has my vote for the title of greatest American judge who ever served at any level. It’s the country’s misfortune that he never served on the U.S. Supreme Court. He did, however, spend nearly thirty years on the United States Court of Appeals for the Second Circuit, writing more than 1,000 opinions and carving out a reputation as one of the country’s most influential jurists. On March 10, 1986, thirty-two years ago today, Friendly died.
I’ve written at some length elsewhere about my definitely-not-unhealthy devotion to a long-deceased judge on an intermediate appellate court who, with a few exceptions, did not weigh in on the most hotly contested constitutional questions of the day. But Friendly’s reputation was built on his alarming analytical acuity, the lucidity of his writing, and his record of pragmatic decisions. He also had a great eye for talent: his law clerks included Chief Justice John Roberts, federal appellate judges Merrick Garland, A. Raymond Randolph, William Bryson, Pierre Leval, and Michael Boudin, and a slew of influential lawyers and academics including Bruce Ackerman, Larry Kramer, and Ruth Wedgewood.
For purposes of this blog, Friendly wrote several decisions addressing the scope of the attorney–client privilege and reviewing convictions for white collar crimes in an era when prosecutions for such crimes were relatively rare. Two of those decisions are discussed below and recounted in detail in David Dorsen’s excellent biography of Friendly.
On the former issue, Friendly helped to shape the modern privilege doctrine that influences expert communications in litigation in all contexts, but particularly those involving accounting and other financial analyses, along with internal investigations. In United States v. Kovel, the Second Circuit considered a contempt action brought against an accountant who refused to answer certain questions before a grand jury. The court, with Friendly writing, ruled that the communications from the client to the accountant, who was employed by an attorney, were privileged, and that the accountant did not have to answer questions about their content. Friendly cautioned that “[n]othing in the policy of the privilege suggests that attorneys, simply by placing accountants, scientists or investigators on their payrolls and maintaining them in their offices,” can shield clients’ communications with those professionals. But Friendly likened Kovel’s work in the circumstances to that of an interpreter for the attorney, observing in a nice turn of phrase that “[a]ccounting concepts are a foreign language to some lawyers in almost all cases, and to almost all lawyers in some cases.” Because the communications were necessary for the attorney to provide legal advice, they did not destroy the privilege.
On the issue of white collar crime, Friendly may not have been beloved by the defense bar, though while he criticized white collar felons who took advantage of others, he did not think that those he considered unduly credulous victims were above reproach. His opinion in United States v. Benjamin began by lamenting that the appeal concerned “another of those sickening financial frauds which so sadly memorialize the rapacity of the perpetrators and the gullibility, and perhaps also the cupidity, of the victims.” In upholding convictions of conspiracy to commit securities fraud and mail fraud for a securities promoter, his lawyer, and a CPA, Friendly offered a frank appraisal of the dangers of wrongdoing by professionals: “In our complex society the accountant’s certificate and the lawyer’s opinion can be instruments for inflicting pecuniary loss more potent than the chisel or the crowbar.”
While potential white collar defendants may not want their cases presided over by a judge with such views, I’m of the opinion that all else being equal, it’s best to have a smart, thoughtful judge, as Friendly consistently was. His contributions to American law are certainly worth remembering on the anniversary of his death.
Below, you can see Judge Friendly (who could sometimes be quite gruff) dole out praise to student advocates while presiding over Harvard Law School’s Ames Moot Court Competition in 1981. He also throws some shade at the lawyers who typically appeared before him in real courtrooms, and names future Massachusetts Governor Deval Patrick the competition’s best oral advocate. Because we don’t otherwise have footage of Friendly acting as a judge, I heartily recommend watching the entire video, along with the video of the 1974 competition, for which he also served as a judge.