Alton Logan doesn't understand why two lawyers with proof he didn't commit murder were legally prevented from helping him. They had their reasons: To save Logan, they would have had to break the cardinal rule of attorney-client privilege to reveal their own client had committed the crime. But Logan had 26 years in prison to try to understand why he was convicted for a crime he didn't commit....
Lawyers Jamie Kunz and Dale Coventry were public defenders when their client, Andrew Wilson, admitted to them he had shot-gunned a security guard to death in a 1982 robbery. When a tip led to Logan's arrest and he went to trial for the crime, the two lawyers were in a bind. They wanted to help Logan but legally couldn't....
The lawyers did get permission from Wilson, to reveal upon his death his confession to the murder Logan was convicted for. Wilson died late last year and Coventry and Kunz came forward. Next Monday, a judge will hear evidence in a motion to grant Logan a new trial.
I'm not a legal ethics expert, but my understanding is that there is indeed no exception from attorney-client confidentiality in such cases. (If a client tells you that he intends to commit a crime in the future, you may be able to turn him in, but not when he admits that he has committed a crime in the past.) And I can certainly understand the reasons for such a confidentiality rules, whether for lawyers, priests, or psychotherapists. But, boy, they surely do yield a very troubling result in a case such as this one.
Thanks to Paul Milligan for the pointer.
Related Posts (on one page):
- Duty to Save a Wrongly Convicted Person at High Cost?
- A Classic Ethical Bind for Lawyers:
"They watched Logan’s trial to see whether he got a life or death sentence. "We thought that somehow we would stop at least the execution," Coventry tells Simon."
So, they were willing to let a man they know to be innocent spend his life in prison, to protect a man they know is guilty and free, but if there had been a death sentence, they '... thought that somehow they might stop it' ?? When ? After 20 years on death row ? Or perhaps on the gurney ? Or maybe come to the 'ethical decision' to let him die ?
Sorry, campers - there is something terribly wrong with a 'system of ethics' so twisted, so amoral, as to not only permit, but demand, this. That is not 'ethics', that is 'perversion'.
Why do lawyer ethics require that outcome? Doesn't what they did make them accomplices to a false imprisonment, akin to kidnapping?
If so, I'd have a much bigger problem with the prosecutors than I would with Wilson's attorneys.
No. Legal ethics aside, you generally can't be convicted of a crime for failure to act. For example, if you witness a murder, failure to report it to the police is not a crime.
(There are some exceptions, such as when the law explicitly imposes a duty between the victim and actor, but no such duty exists here; indeed, the opposite duty exists.)
I don't see how you could possibly choose to let someone stay in jail for decades when the worst alternative for you is getting a different profession.
If Kunz and Coventry had come forward, perhaps Logan would not have been convicted. But then other potential murder defendants would be unable to trust their lawyers, and although it would save a life, we'd be much worse off in the long run.
This whole scenario assumes, of course, that everything everyone's said so far is true. Assuming Logan confessed, maybe he was lying. And maybe he didn't even confess. I have no particular reason to believe that anyone involved has been less than truthful, but the possibility exists, and people on death row have been known to oversell "exculpatory" evidence.
What about the duties to your client, regardless of the penalty?
Is there only reason for obeying a legal duty -- that the penalty for disobeying it is too great?
I was speaking with regards to ethics, not law. I've long been aware of that error in the law.
So who will pay this penalty?
Personally, I would --- or like to think I would, or hope I would --- in this position prefer to quit being a lawyer and work in McDonalds than know I participated in the unjust, catastrophic and complete ruin of a man's life.
of course they might have tried and the ethics people might have said-nah that could never happen!
OTOH-if you do have an exception for information that may set somebody free of a crime-where do you draw the line (suppose the confession of the murder is necessary to get somebody off a traffic ticket etc..)..or suppose the confession of the murder is necessary to get someone off civil liability? to prevent a disbarment or loss of other administrative license?
IMO, the problem is only partially with the attorneys. It is to a higher degree with the system, the 'Canons of Ethics', that prescribe such behavior.
It shows that the entire 'justice' system is not based in any way on 'justice', but rather 'My lawyer can beat up your lawyer'.
The old saying 'Truth, Justice, and the American Way' needs updating to 'Truth and Justice VS the American way'.
I'd say these lawyers were absolutely wrong. Even if their interpretation of the rules is correct, there is a certain moral obligation that goes beyond the ethical or legal obligation.
But i would say that they were allowed to reveal the information.
Rule 1.6(b)(2):
It seems to me that they were willing to invoke subparagraph (1), which allows disclosure to prevent a death but not subparagraph (2) which allows disclosure to prevent injury to financial interests.
I think if I were those lawyers, I would have attempted to reveal the information to the judge in a way that would allow him to throw out the case, and then the judge should recuse himself from real guilty person's trial. If that didn't work, I would be a bit more public with releasing the information. Of course, I'd have to withdraw from representing the guilty person.
Then, if anyone complained about revealing confidential information, I would argue it in court or in front of the bar association as appropriate. Win or lose, either one is a much lesser harm than having a man in jail for 26 years.
This one's a no-brainer.
Accomplice liability is a legal issue. And you can't be an accomplice simply for failing to act.
What makes you so certain that it's an "error"? Don't you think there might be good reasons why this is so?
A death sentence would allow them to reveal what they knew. ABA confidentiality rules have a proviso:
1.6(bA lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm
That's why they were watching for a death sentence, not any darker motivation about playing God. I assume the uncertainty in phrasing has to do with at what point the death sentence becomes "reasonably certain".
The only ones who would not be able to trust their lawyers would be the guilty.
I thought PD's were 'Officers of the Court', and charged with certain obligations to truth by that ?
I know a lawyer can simply keep his client off the stand, and work very hard to make every witness against him look like a liar, and not commit a crime doing so. But he is in fact perpetrating a lie, and he knows it. Just because he doesn't SPEAK the lie ( perjury ), makes him no less guilty of it, no less complicit.
I pity anyone whose 'Canons of Ethics' are their own personal highest morality, subject to change at the whim of a governing body and irrespective of truth or even reality.
That must be a pretty sad way to make a living. As another poster suggested, flipping burgers with honor and a clean conscience would be better.
I agree with those who claim that there is a moral obligation to prevent an innocent person from going to jail even if it means changing professions. Like, Charlie, I wonder if I (a non-lawyer) or many others would have the courage to do this.
No, I don't think there's good reasons for it. I can't actually think of any reasons for it besides "precedent's always been that way". On the other hand, I don't see a moral difference between acting to cause someone an injury and knowingly being able, but refusing to, act to intervene to prevent the same injury from the person. In both cases you make a decision, and in both cases the injury happens as a result. Ergo, the situations are interchangeable, since the relevant facts are the same. Identical culpability is incurred for the injury, and identical punishment should follow in both situations.
Problem is you'd have to reveal the confidence in order to secure the deal (if such a deal is even possible).
This rule doesn't help at all. Their client already committed the crime so there is no argument that revealing the information will prevent the client from committing it.
Also, there seems to be an assumption in some of these comments that the lawyers could have prevented this conviction by coming forward and revealing what they knew. That's not at all obvious. Even assuming they were allowed to testify in breach of attorney client privilege (highly doubtful) they can't testify that their client confessed, as that would be inadmissible hearsay.
It sucks to be the defendant in this case, but I don't think anyone wants a system where you can't approach your own lawyer in confidence without worrying that he's going to breach your confidence. So I don't think there's any easy and obvious solution here.
Eugene is right that these lawyers had to keep their client's secret. I'm sure they lost a lot of sleep over it, but such moral quagmires are a hazard of our profession.
LINK
I'm sure the defense attorneys are to blame.
Something tells me that would have accomplished nothing.
I think being in maximum security prison for 26 years is pretty harmful to a body.
This is why the public hates lawyers. Can't say I blame them.
Kunz and Coventry are pretty poor excuses for human beings. One of them needed to take the risk. Who knows, permanent disbarment may not have happened, the state supreme court may have let them off with a reduced sanction based on mitigating circumstances. At least they wouldn't be going to hell when they die.
Revealing the confession did work, it was enough to get the man out of jail 26 years late, so I'm only going with the facts we have been given, not the facts we imagine them to be.
Uh, they can't tell the DA, they can't tell their friends, they can't tell their family. Omitting a name does not make it ok. This is the CLIENT's privilege. Not the lawyers.
And everything else Cornellian said. I can't grasp the outrage here. Oh and I strongly suspect this isn't the only such case. Just so happens this guy agreed to waive the privilege after his death. Others might take it to the grave with them. There's nothing a lawyer can do. Nor should he.
Statement against penal interest?
I agree with your larger point, though. It's interesting that the degree of righteous indignance expressed in some comments at the attorneys' conduct seems to be inversely proportional to the depth of the commenter's understanding of the competing interests at stake here. I don't know what I would do in a situation like this, but the attorneys were hardly acting in mere self-interest by taking the course that they did--if self-interest were their only motivation, why come forward at all?
Where does spending the next 40 or 50 years in prison fit in, if not "substantial bodily harm " ? Don't you have a 'reasonable expectation' of 'substantial bodily harm' in a prison environment ? Isn't that a reality of the prison system ? What about the MENTAL harm of having your life taken away from you in all ways except the mere corporeal ? Is there nothing short of death that actually counts ? Someone else mentioned 'financial compensation' - how do you compensate someone for a lifetime in prison ?
And how can a sytem that not only excuses this, but MANDATES it, call itself ethical, 'a Justice System' ?
But even if the lawyers were willing to spill the beans on their client, the cllent could invoke the attorney-client privilege to keep it from being admitted in any court proceeding — meaning not just his prosecution but literally any case.
Remember that the attorney-client privilege belongs to the client, not the attorney. A lawyer can't break the privilege even if he blabs the client's secrets all over town. The client can't physically prevent the lawyer from revealing what he knows, but he can prevent that information from being used in court.
I pity you.
Revealing the confession did work, it was enough to get the man out of jail 26 years late, so I'm only going with the facts we have been given, not the facts we imagine them to be.
You're lucky the MPRE is a joke and you just might pass. "Causing?" Seriously? He was CAUSING another man's financial interests to be injured? Do you know how many counts of fraud I'd be guilty of if that was your definition of "causing?"
Mere injury to the financial interests of another is not fraud. Fraud requires (going off the top of my head here) obtaining something of value from another though intentional deceit. While an argument might be made that Wilson obtained "something of value" by avoiding going to prison, it's quite a stretch to argue that this is a case of classic fraud since Wilson never had any direct contact with Logan, made no misrepresentations to him, and obtained nothing directly from him. I've never heard of civil or criminal liability for fraud being established in a case like this.
No, it wasn't. He's still in jail; he might get a new trial sometime next year. And in any event, even if he is ultimately exonerated on the basis of this evidence, that hardly undermines the fact that there was (and is) no guarantee that, had the attorneys revealed this information 26 years ago, Logan would have been acquitted.
Suppose we let the real murderer go free? As it played out 1) an innocent was imprisoned for 26 years, and 2) the murderer went free. Let a panel of judges determine if the real murderer is telling the truth.
If we let the real murderer go free then we would be incrementally better off because the innocent would not have spend 26 years in prison. In both cases the real murderer goes free.
Question: Suppose the real murderer did not give permission to reveal the truth upon his death? Would legal ethics preclude the attorneys from revealing the truth forever? If so, I'd be interested in the reasoning behind that.
It's not a justice system. It's a system for ordering society.
I, too, see the applicability of paragraph 2. If you insist it does not apply, please explain.
I don't see how you could possibly choose to let someone stay in jail for decades when the worst alternative for you is getting a different profession
Please realize its not just consequences to you. The attorney's can't just go to court and say "a client of mine, who I cannot name, has admitted to me that he committed the crime" and expect a defendant against whom otherwise adequate proof is provided to be exhonerated. Otherwise criminal defense attorneys would have a nice little sideline allowing them to get paid off by actual bad guys and to come into court citing a fictitious client etc. No, the only way you are going to be able to get them off is to name your own client so that the prosecutors can at least test your claim.
So, how will attorneys ever get their clients to tell them the truth if their clients are afraid that the attorney can just turn around and tell the police what the client admitted to the attorney?
For those of you blaming the lawyers, they were follow the law. If you don’t like that law, feel free to petition your state legislatures to change it.
Even if he did play a part, that doesn't mean his lawyers did anything blameworthy. Keeping Wilson's secret is not morally equivalent to actively helping pin the blame on Logan, which is a point many commenters here seem to have missed.
Probably, yes. I believe that the attorney-client privilege survives the client's death. The justification is the same: in order for the system to function, all parties-- including but not limited to criminal defendants, even guilty ones-- must be able to divulge confidences to their attorneys without fear that those statements will be disclosed or used against them. Because every living person has some interest in events that may occur after his death, the general rule, I think, is that the privilege remains intact.
I don't think your client would be substantially harmed. I doubt your statement would be admissible in the event your client were charged.
You sound altogether too certain of your moral position in a question that is not nearly as black-and-white as you seem to view it. Take a minute to think through the consequences of clients not being able to trust their lawyers to not rat them out.
What if lawyers were to have come forward and said this: "I have had protected communication with a client of mine revealing that Alton Logan is not guilty of this murder; however, due to the attorney-client privilege, I can say no more."
Would saying this constitute a breach of attorney client privilege? Could a court receiving this testimony compel the lawyers to testify further? Would a jury have found this limited testimony persuasive in and of itself?
But that fact does raise one minor question to consider. The Illinois State Bar Association does issue advisory opinions on ethics based on hypothetical fact patterns submitted by members.
Did the lawyers seek such an advisory opinion from the ISBA?
While an advisory opinion, if issued, would not be binding on the courts, the mere fact of seeking it would do at least two things:
1. It would give notice to every lawyer in the state that such an ethical conflict existed under current rules; and
2. Depending on the ISBA's response, it could serve in part to shift moral responsibility for the lawyers' silence from a personal responsibility to a responsibility of the ISBA, the legislature, or the courts.
I fulfill my duty as officer of the court by zealously and honestly fighting to protect my client's rights. I am not part of the prosecution team.
Kind of. Many witnesses are more confident of what they say than they should be. If I represented Logan originally, I would have every duty to poke holes in a witness's testimony, even if I thought they were telling the truth. Because, hey, sometimes I get it wrong, too.
Maybe part of the real problem in this case is that Logan's lawyer's weren't sufficiently aggressive in attacking the prosecution's witnesses. (I'm merely speculating here.)
My job is to give my client the benefit of the doubt and to lawfully protect his interests. A criminal trial is not a quest for truth. It is a test to determine if the State has proven guilt beyond a reasonable doubt with admissible evidence. I have sometimes done investigations that have turned up even worse evidence than the prosecutor had. But It's still my job to argue (where the facts permit it) that the State has not proven its case.
I have sometimes argued for legal decisions that would hurt other criminal defendants, but, because of some quirk, would help my client.
The legal arguments work both ways. After the initial appeal, actual innocence is not grounds for release absent some claim of legal error. Once, when I argued on appeal that my client was not guilty, a prosecutor responded by saying that defense attorneys only claim innocence when we don't have any real issues to argue. I am not joking. That prosecutor is now a felony trial judge.
This is a good explanation of why we do what we do.
I also don't think the PDs' plan to re-evaluate their situation if Logan got the death penalty does not mean they planned on disclosing. They may have planned on going back to their client to try to convince him to talk.
Finally, I have disclosed client communications only twice. Both times they made what I judged to be credible threats to kill. But, as Professor Volokh pointed out, different rules apply to threats of future violence.
The ethical dilemma does not exist until an innocent is prosecuted and convicted. The real problem lies with the law enforcement investigators, prosecutors, judges and jurors (as well as incompetent defense attorneys) who contribute to the prosecution and/or conviction of the innocent.
Defendants facing the massive resources of the government in criminal prosecutions are entitled to the aid of at least one person in whom they can place their complete trust without fear of betrayal. Were that not the case, our adversary system would be worth squat. There are bigger things at stake than justice or injustice in a single case.
If you have problems with our adversary system, work to change it. All you need is a few constitutional amendments. Perhaps the French inquisitorial system or th4e Chinese communal inquiry system would suit you better.
That is not to say I would not look into and do all I ethically could to prevent or overturn the prosecution or conviction of an innocent if I knew my client was the guilty one. But I would not betray my client's confidence under any circumstances unless instructed to do so by that client. And I certainly wouldn't go to the prosecutor and tell him an unnamed client had confessed; that might well lead to an investigation of who my clients are.
This is an excellent point. Absent confidentiality, Wilson would not have confessed at all. Absent confidentiality, Logan would be sitting anonymously in prison with no hope.
The system only works when we all play our roles. The adversarial system ain't perfect, but it works better than any other system.
Wilson's lawyers did their job. As a result, an innocent man may be released. If the cops, prosecutors, witnesses, and jurors had done their jobs, Logan would not have had to serve any time.
(a) Without being able to try the confessor for the crime or violate his 5th amendment rights (correct me if I'm wrong) by having him testify, there is no way to establish whether the confession is in any way legitimate.
(b) A system in which it were legitimate to submit as evidence an anonymous tip that an anonymous person confessed to the crime would open the door for almost any conviction to be precluded.
(c) Guaranteeing immunity for the confessor would accomplish much the same thing, since then anyone could confess anything to their lawyer and not only protect someone else from conviction but ensure that he himself was never convicted.
If anyone can think of any other ways to finesse this point that would not result in a crippling precedent, I'd be interested to hear it. Otherwise, I'm convinced that the ethical burden lies with the persons responsible for convicting an innocent man, independent of the confession.
If so, I'd have a much bigger problem with the prosecutors than I would with Wilson's attorneys."
first of all, people can get convicted on good evidence, even when they didn't do it. that's an unfortunate result of a world where we don['t have perfect knowledge, where witnesses can lie or be mistaken, and where coincidences (wrong place, wrong time) happen. it sucks, but there is no way to prevent there being at least SOME wrongful convictions, and i use the term "wrongful" from a results analysis angle, not a process analysis.
but the problem is not with the PROSECUTORS. as long as they believed the evidence supported a conviction, they were duty bound to proceed. based on your scenario, and of course you wouldn't blame the defense attorney because they are supposed to protect guilty people (they knew he was guilty) , the problem is with the judge or jury for not accepting a dismissal motion in the first case of your "flimsy evidence" and the jury for convicting.
you are so sure the evidence was flimsy, and you are so sure it's the PROSECUTORS fault when they are not the finder of fact?
Even if the statement weren't admissible, the police and prosecutors would (if they were competent and diligent - big "if" in this case apparently) investigate your client for the crime, and obtain independent evidence of his guilt.
Second, anybody who thinks the prosecutor is simply going to let the suspect go because some attorney comes forward and says "I have secret information that someone else did the crime, and I cant tell you who" is dreaming.
Let's be clear: Wilson's attorneys would have to hand him over lock-stock-and-barrel to get anywhere, and even then Logan probably would have been lucky to go free.
The police and prosecutors dropped the ball on this. It's their fault this ethical dilemma was created in the first place.
Spend about two minutes checking out the facts of this case, please.
no, it CAN'T be "reasonably" presumed. i have a big problem, with this assumption, and it's an issue that i've had problems with before.
despite all the petty lawyer games, trials are supposed to be a search for the truth. that process is imperfect, because memories, human beings in general, are imperfect, because coincidences happen, etc. etc. etc.
we accept that it's better that 10 guilty men go free than 1 innocent convicted but unless you are willing to change that to 10^n power guilty men go free, you CAN'T avoid wrongful (again, from a results analysis not process analysis angle) convictions. this is not a perfect world.
it is entirely possible that even given a GREAT defense attorney, and scrupulously honest prosecution, and an intellligent jury, that an innocent man gets convicted. in fact, it's nearly unavoidable.
i think people fail to be pragmatic here. the system can't always work to free the innocent because unless we are willing to either raise the standard to "beyond any doubt" and accept far more guilty people going free, it's always going ot be reality until we get some kind of 100% accurate truth serum, 100% coverage video surveillance, etc.
reality is that it is. any of us COULD be wrongly convicted, given a very unfortunate set of circumstances, of a crime we didn't do. that's why its incumbent that we have VERY good police, investigators and defense attorneys, but even given that, it has to happen.
They're admissible against the person making the confession, not against other people, so the admission against interest exception doesn't work here. The lawyer's statement that his client confessed is inadmissible hearsay in the defendant's trial. It would be an admissible exception to hearsay if the client was the one on trial but that's not the case here and of course either way you have the attorney client privilege problem.
he said he was making an assumption, so i responded to his assumption.
i am not saying the evidence wasn't flimsy. i am saying that ASSUMING that it is , is wrong. i make no assumption either way. that's called 'waiting for evidence before drawing a conclusion'
no, they MIGHT "obtain independent evidene of his guilt."
again, with the assumptions, just because somebody did the crime does not necessarily mean there is evidence out there to convict (and yes, i am familiar with locard's principle), just as just because somebody didn't do the crime doesn't necessarily mean they will be found not guilty. even assuming extra diligent and exceptional cops, defense, and prosecutors.
maybe im just way more cynical than you guys, but i don't accept for a second that
1) an innocent man can;t be convicted if everybody does their jobs perfectly
2) a guilty man can;t go free if everybody does their jobs perfectly
Well let me ask you this: If the police/prosecution failed to turn over to the defense evidence of a shotgun seized in another crime, by another suspect, that matched the gun used to kill the victim in Logan's case, would that be "good" in your estimation?
Would saying this constitute a breach of attorney client privilege?
Yes. A lawyer has a duty not to reveal confidential information from a client, and that duty can't be avoided just by leaving out the client's name.
Could a court receiving this testimony compel the lawyers to testify further?
No, further information would still be privileged despite the lawyers' unauthorized breach of confidentiality.
Would a jury have found this limited testimony persuasive in and of itself?
I certainly hope not. A witness saying "This guy isn't guilty, because someone, whose name I can't tell you, told me he did it" is not very good evidence. I don't think it would even be admissible in a trial.
A lot of people are making a similar suggestion; the lawyers should have come forward, but kept their clients' name confidential. Think about what would have happened, though.
They would have had to approach the D.A. (approaching the judge privately, as someone suggested, isn't an option). The best case scenario is they have a good relationship with the D.A., so he believes them. But the D.A. has no idea if their client is telling them the truth, or just trying to get Logan off.
So the best case scenario now is the D.A. would talk to the police, and they would reconsider the case and look for new evidence. If they didn't find any, the case against Logan would go ahead. If they did find some, presumably it would point to Wilson.
It's conceivable the police would find enough evidence that they would have to let Logan go, but not enough to charge Wilson. But realistically, the D.A. is probably going to try either Wilson or Logan. If the lawyers approached the D.A. after Logan was convicted, it's even harder to imagine the D.A. would agree to let Logan go without even evidence to charge a new suspect (i.e. Wilson).
It's easy for all the commentators here to say that the lawyers should have come forward and not named their client. But if they said anything useful for Logan they would be risking Wilson's conviction. It's a terrible situation, but I can't see how a lawyer can break a confidence when it means he could be putting his own client in jail.
as far as i am concerned, the police/prosecution, failing to turn over ANY exculpatory evidence to the defense is simply wrong. so, no, it's not good.
fwiw, the job of the police is not to help the prosecution. it's to impartially gather evidence.
frequently during the course of investigations we uncover exculpatory evidence, or even evidence that 100% proves a suspect's innocence. that's our JOB.
a defense attorney cannot turn over evidence of his clients guilty (such as the confession to the attorney) to the prosecution, but we HAVE to turn over evidence of his innocence to the defense attorney.
and, at least in our cases, that's a good thing
imo, prosecutors often fall prey to the same problem that befalls stock traders and any other human being. once they buy into a theory of guilt, they get myopic. the better ones do this far less but it's a natural aspect of human psychology, to be biased once one "owns" a position. that's why the adversarial system is so crucial. and why we are so much better than france :)
What if the ethics rule were that lawyers were allowed to break confidentiality to prevent future crime, as it is now, but also to prevent gross miscarriage of justice? Clearly it would be a different system, but would it, on balance, be manifestly worse?
Also, to the 'why the public hates lawyers' point. According to the 'code of conduct' document Eugene linked to the lawyers could have broke confidentially to prevent 'a crime'. Incidentally, it doesn't even say a 'serious crime' or 'bodily injury' just 'a crime'. Yet, somehow, imprisoning someone for a crime they didn't commit, or even sentencing them to the death penalty, doesn't qualify? Even worse, the lawyers would have been allowed to break confidentially to collect their fee! Their FEE! Leading me to this hypothetical.
Murderer X confessed to his lawyer the details of the crime in sufficient depth to leave no doubt in the mind of the attorney that his client is guilty. None-the-less, the prosecution's case is weak, and the lawyer gets the case dismissed without prejudice. X now owes the lawyer $500k, but refuses to pay. The lawyer sues, and X declares bankruptcy to avoid the debt. However, the family of the victim is still looking for closure and has a $500k reward out for information that brings the killer to justice. The lawyer turns his client in and collects the reward. Is he subject to disbarment? Did he take an action that jeopardizes the heart of our legal system?
In all events, the circumstance presents a really fascinating hypothetical: How does the attorney in that situation make sure that the confession will ultimately be admissable? It isn't against penal interest at the time it was made. With 26 years having gone by, a writing describing it would be admissible as an ancient document, but they had no way of knowing it would be 26 years.
So what is the lawyer to do?
you have to understand that the JOB of the defense attorney is not justice, it is not truth, and it is not proving his client innocent (whether or not he is). it's simply establishing reasonable doubt (once the case has gotten past the preliminary stuff)
our system couldn't work the way it does IF defense attorneys weren't 100% biased to their clients interests only.
i think it's much like democracy -it sucks, but it sucks less than any other system.
i just have the clear understanding that the role of the defense (and the burdens on him) are fundamentally different from witnesses and from prosecution.
basically, i agree with dershowitz. it's their job to get their client off, by whatever (legal means necessary). not help a search for truth, let alone justice.
no offense, but...
ime, i have seen at least as much ignorance of the law among lawyers as non-lawyers. in criminal procedure they are WAY ahead of the laymen, but in terms of law - not so much.
i have seen some amazing misstatements of law here from people who at least claim to be lawyers, over the years.
why don't you just ignore those who don't have law degrees, or whose analysis you don't find worthy of your superior intellect and education.
start here ^^^^^
tia
Nathan_M, thanks very much for your response. It was very informative. I think I am now persuaded that i) it was ethical for the lawyers not to come forward, and ii) that the responsibility for this travesty of justice does not lie with them at all.
I have to admit I find it odd that the Model Rules have been extended to allow the revelation of confidential information to prevent a fraud that will result in economic harm, but not to prevent a deprivation of liberty. When it comes down to it, though, I think Malvolio is right:
"If you pay attention, you'll notice that attorney-client confidentiality didn't make the unfortunate Mr Logan any worse off. If no confidentiality existed, Wilson would simply not have confessed to his lawyers. Wilson would have gotten a worse defense, but Logan would not have gotten a better one."
I wonder though, if this scenario is rare enough that it wouldn't really make a difference if there was this one exception. Of course, there would probably be enough publicity about such cases that people would actually be aware of that and take into account. I think for the most part the average person does not realize the exceptions that do exist currently, and so will just tell their lawyer about anything. That's just a guess on my part though.
Really, I think situations like this call for a sort of ex parte hearing option. A lawyer could come forth and give the facts he has to a judge, who could decide whether this presents credible enough evidence to require a judgment of acquittal. The information would never be passed on to others and the record sealed. A guilty man would still walk, but an innocent one would not be convicted at least. There are all sorts of problems I can imagine with this system, but I think it is a start and with enough work would be better than what we have currently.
Attorney-client confidentiality saved Logan. Belatedly, yes. But it's better than sitting in prison forever.
I understand you ask the hypothetical in all seriousness, but it's pretty silly. He'd be disbarred and probably subject to lawsuit from the client, which would probably result in the disgorgement of the reward. The reason lawyers can reveal confidential information to collect fees is because otherwise they wouldn't be able to collect fees.
Lawyer: "Umm he owes me money for work, but I can't tell you what I did or when I did it. But trust me, this guy owes me. BIG."
The only thing we know occurred 26 years after Logan's conviction is Wilson's death. The quote Eugene provides doesn't say when he confessed, but it suggests that the lawyers had to live with this burden for a long time and thus that the confession was made many years ago.
Additionally, most jurisdictions have no statute of limitations for murder.
You're going to fail the MPRE, and probably the bar. You have totally failed to read that rule correctly, and are missing some really basic understanding of the law in general. Causation, basic definition of fraud, the general lack of duties to affirmatively act, etc.
I think you're confusing it with the party admission. A statement against interest can be used against anyone, as long as the declarant is unavailable.
While you are right that the lawyer's statements would be allowed under the hearsay exception for statement against interest (the hearsay is the real killer's statement, which is against interest, and the killer himself is an unavailable witness because of the 5th amendment), in the end Cornellian is right that either way, the real killer could assert the attorney-client privilege and prevent the lawyer from testifying.
In order to properly defend a case a lawyer has to know what happened. Partially that means using the information disclosed by the prosecution, but it also means talking to your client. I have NEVER had a case where the disclosure gave all the information I obtained by interviewing my client.
Your client admitting he's guilty (especially for something he's not charged with) isn't very useful in a trial, but all the other information your client gives you, some of which can be highly incriminating, is absolutely essential.
Since clients do not understand what could be relevant, the best policy is often to have them tell you everything. That can't happen if the client is worried he'll go to jail for something he tells you.
Even worse, the lawyers would have been allowed to break confidentially to collect their fee! Their FEE!
The confidential information that a lawyer can disclose to collect a fee is extremely limited. Basically, that he was retained by the client, what the bill is, and things of that nature. It doesn't justify breaking confidences unrelated to attempting to collect the bill.
Okay, then just what are those consequences? Let's see, a guilty man might have been punished and an innocent man may have been released. So far so good. What about future clients and defendants? Well, the ones who have committed crimes will not confess to their lawyers that they committed crimes. This is hardly revolutionary.
Let's look at the ethics of it all. If X goes to a lawyer about his taxes and tells him, "I haven't paid my taxes in ten years because I believe in some crack pot theory about flags with gold tassels and admiralty law" the lawyer is obliged to not reveal this information. This is reasonable. X has confessed a crime but didn't really know the magnitude or the legality of what he did and he is seeking help in dealing with the consequences of his actions.
But if X says, "I used a shotgun and killed a man in the course of a robbery" there is no doubt in any reasonable man's mind that this is a crime. It serves no one to keep it confidential when others are being still harmed by the act.
If there is no one else in jail for the crime, again there is no harm to others in keeping confidence. But the rules clearly say that if others are being harmed by keeping the confidence, then the lawyer is allowed to reveal the information. The only thing that might prevent someone from revealing the information under the rules is that it requires a crime or fraud to be committed and the interpretation is generally held that these circumstances do not constitute a crime or fraud. Legally, perhaps this is true. But not in reality.
Further, the rules also allow the lawyer to reveal anything and everything to defend himself. That is, if someone accused the lawyer of committing that crime instead of X, the lawyer is allowed to reveal the confidential information.
So, what the defenders of these lawyers are saying is that it's okay to bail a lawyer out by ratting on a client, but it's not okay to bail out an innocent bystander. Again, the legal system is constructed in favor of the lawyer.
I call BS. If the model rules do not allow a revelation in these circumstances, then the model rules need some serious amending.
As for me, I'd rat out the murderer in a heart beat to protect an innocent man if I knew that what information I had was correct and that it had a reasonable chance to prevent an injustice of that magnitude. Rules be damned. It's far better to be punished by a bunch of lackey lawyers than to have an innocent man spend his life in jail. There's something quite disturbing about people so willing and eager to pervert justice in the interest of serving it.
In the real world, I seriously doubt that such circumstances happen with such certainty.
The current system allows an innocent to spend 26 years in prison. If we agree that every aspect of the current system will remain as it is, then there is no solution. Perhaps in a case like this someone other than the DA should make a decision. The purpose of our system is not to make sure the DA has someone to charge.
It's always interesting to watch a DA oppose examining evidence that could exonerate a convicted person. They appear to prefer leaving someone in prison rather than to release DNA that could demonstrate he is not guilty. Does this indicate a search for the truth, or a concern with one's reputation, conviction record, and political future?
So you're on the record as saying that (a) you're not going to take your oath seriously (b) you're not going to owe your clients the loyalty they are due, and (c) a minor thing about breaching confidentiality.
Need a malpractice lawyer?
Although the article doesn't expressly say so, my belief was that the now-deceased client confessed near the time of the crime 26 years ago, not on his deathbed. That may not satisfy you based on your third sentence, but probably does support his credibility.
ZZZZZZzzzzzzzzzzzzzz.......
The rules allow a lawyer to rat out his client to save his own butt, but not to save the butt of anyone else.
No. Lawyers can reveal confidential information to defend themselves against claims of professional negligence brought against them by their clients. In the situation you gave the lawyer would have a duty to keep the information confidential.
We lawyers need to be able to explain ourselves to non-lawyers. Some of the comments reflect a misunderstanding of the adversarial system, but when members of the public question why we lawyers do what we do, we should be willing to stand behind and explain our actions.
"How could you stand by and let an innocent man rot in prison" is a fair question that deserves an answer.
While attorney/client confidentiality may survive death of the client, the two attorneys have in their favor here that they are not going to prejudice their now deceased client by revealing this confidentiality. He is already dead, and unless the state wants to lock up his dead body, there is nothing that can be done to him now.
in
Asking how justice would be served in such a situation is a question which effectively answers itself. Asking how the legal system would be served in such a situation is an invitation to sophists and casuists.
Governor Gray Davis vetoed bills to change that, but Governor Schwarzenegger signed a bill into law bringing California in line with the rest of the country.
Nick
I'm not on any record. I'm chatting on a blog. And if you think that silly rules constitute moral behavior in all circumstances, then you don't really understand ethics.
Telling one's attorneys that one committed a crime is not a statement against one's penal interests - that exception only applies if, at the time the statement is made, the speaker would have expected that the statement would expose the speaker to criminal liability. (Or other circumstances not applicable here.)
Nor am I assuming that the speaker's death was impending -- the deal with the attorneys was that the confession could be revealed after death.
In any event, the question I was posing is a practical one. In that situation, what should the attorney do to ensure that the confession (or testimony about it, which is double-hearsay) will ultimately be admissible even if less than 20 years has elapsed?
I am not surprised that many of the non-lawyers don't understand this rule and its application here. But what amazes me is the number of licensed attorneys that seem to be trying to find a way around it here. Ask yourself, how many of the other ethical rules are you willing to skate around if their result is somehow inconvenient? (Ok, I am being a little extreme here - I suspect that most, if not all, of the anti argument by attorneys is just that, argument, and that they would do the ethical thing if faced with the same dilemma that these attorneys faced).
Or as necessary in an action to collect on an unpaid legal bill.
But we should also be able to have an intelligent discussion about a topic without be swamped by arguments that, e.g., the business-frauds exception applies. (If it were New York, do the advocates of this interpretation think counsel should have made a noisy withdrawal?) Or who think an attorney can tell the prosecutor that an unnamed client has confessed without the client's permission (thereby making use of information obtained through the attorney-client relationship). Or who think that an attorney can do anything in such a case, where a failure of the trial against the original defendant based on the admitted or unadmitted confession of a perhaps unnamed person will result in a resumption of the criminal investigation against the confessing client!
There are legally interesting topics here. It would be nice to be able to talk about them.
You don’t rat out your client. Period.
You owe a duty to your client, not someone else’s client. Your client told you something about his past conduct with the explicit understanding that what he says will remain confidential. If lawyers violate this canon then future clients will hold back information and the whole justice system suffers. If you feel you cannot abide by this canon then find another profession, or tell your client that you reserve the right to reveal what he says. This even applies to the situation where someone could get executed.
Years ago a TV program called Miller’s Law considered exactly this ethical problem. One defense attorney presented a compelling argument (at least for me) as to why the lawyer must protect the integrity of the attorney-client privilege. Of course the decision to let someone go to jail or get executed when you might stop it is a horrible one, but who said life is easy?
And your kids going to college? And your client's kids?
And what difference would it have made, when the client's new lawyer could easily stop the old lawyers by testifying with a simple motion to intervene and preclude on privilege grounds? In fact, my recollection is that in this circumstance you can even get a prior restraint TRO.
There's no ethical dillemma here, those two attorneys did what they were required to do.
If you only owe a duty to your client, then why do the Rules of Professional Conduct contain constraints on what you can do to help your client? Don't you have a duty to sometimes do what is NOT in your client's best interest to follow the law or the rules of professional conduct? If you only owed a duty to your client, what stops you from telling your client to shred incriminating documents?
Your comment suggests you view things in a wrongly simplistic fashion. And if you would let an innocent person be executed so that you could protect the attorney client privilege, you must have had your conscience removed at some point along the way.
It doesn't quite work that way... You can disclose information about the representation as required in the action to collect the fee. Would disclosing the content of the communication (as opposed to the fact of the communication) be required in such an action? Perhaps in particular circumstances, if the client denied the fact of the communication and said 'why would i talk to a lawyer? about what?'
So the answer is, yes, that's the rule, but it doesn't work as you suggested.
I have no idea where you got the idea that a lawyer offering exculpatory evidence in a criminal case not involving his client, whether privileged or not, could be barred from testifying by any TRO, intervention, or other ethical rule. That is simply not the law.
Whether my kids go to college or not is irrelevant, and what happens to my client is irrelevant. Maintenance of the attorney-client privilege takes a back seat to an innocent person being sentenced to a life behind bars.
Cheburashka, tell me this. Is your child going to college more important to you than an innocent person's life?
You are, I assume, familiar with the concept of the attorney-client privilege, yes? Then you are also aware that the privilege belongs to the client to assert (or waive), correct?
Thus, I fail to understand why you believe a client could not intervene in a criminal trial for the limited purpose of moving to preclude his former attorneys from testifying and revealing client confidences. The privilege is not an option for attorneys to pick and choose when to file; it is a legally enforceable right of the client.
If you intend to maintain the position that the client cannot preclude his former counsel from revealing client confidences, then post a case.
With respect to the TRO, that is from a deep memory of mine concerning a published opinion in the 2d Circuit of a case filed by Von Bulow against Dershowitz to enjoin the publication of portions of Reversal of Fortune. My recollection is that the suit was rejected on privilege grounds, but there was a suggestion in the opinion that such a suit would not fail on 1st Amendment grounds.
And with respect to our kids: My point is that you're not engaging the hypothetical seriously.
There's a distinction without a difference, especially for the only person for whom distinctions mattered.
I'm thrilled that Professor Volokh is troubled. He might be extra troubled by reading over these hundred posts and contemplating how feeble the defenses of this conduct have been.
As somw genius named Dan Stanford (whom I have not been able to track down) said, "Experience is what you get when you don't get what you want."
Most people would then put their minds to figuring how not to repeat the experience.
“If you only owe a duty to your client, then why do the Rules of Professional Conduct contain constraints on what you can do to help your client?”
The rules restrain a lawyer from perpetrating a fraud on the court. Of course you can’t counsel a client to do something illegal like destroy evidence. You can’t use the attorney-client privilege to help him commit a crime. All that has nothing to do with violating privilege to your client’s demise as a balm for your conscience.
“Your comment suggests you view things in a wrongly simplistic fashion. And if you would let an innocent person be executed so that you could protect the attorney client privilege, you must have had your conscience removed at some point along the way.”
Ad hominem argument. Tell me where the canon qualifies privilege so as to allow an attorney to provide evidence against his client. I don’t want it on my conscience that I was the instrument of my client’s demise. If I promise him confidentially, then I must live up to that promise. To do otherwise is to sacrifice my honor as well as my client.
Real attorneys know how to solve this problem. Actually, as I have been trying to point out, the hypothetical is obvious, and the attorneys had no choice. There are much more difficult, and fascinating, and solveable dilemmas of similar nature in the corporate context.
But of course I can't suggest any, because they're privileged.