As a non-lawyer to whom their behavior seems incredibly unethical (and a professional in a field whose canon of ethics includes a term defining a positive obligation to disclose information to prevent harm), I've got to ask:

Why do lawyer ethics require that outcome? Doesn't what they did make them accomplices to a false imprisonment, akin to kidnapping?

"Doesn't what they did make them accomplices to a false imprisonment, akin to kidnapping?"

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.)

Steve2, I think the idea is basically that (1) everyone deserves competent representation, and (2) to get competent representation, people need to be able to trust their lawyers to keep their secrets.

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.

"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."

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?

Okay, so this guy was wrongly convicted and suffered for 26 years. We've seen a number of financial settlements in cases at least similar on the face.

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.

"If so, I'd have a much bigger problem with the prosecutors than I would with Wilson's attorneys."

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 was speaking with regards to ethics, not law."

Accomplice liability is a legal issue. And you can't be an accomplice simply for failing to act.

"I've long been aware of that error in the law."

What makes you so certain that it's an "error"? Don't you think there might be good reasons why this is so?

"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."

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.

IA most definitely NAL so perhaps those who are may answer this: was there, in principle, a possibility of a legal deal where the true murderer would testify under a guarantee he would not be prosecuted in order to clear the innocent?

Max:

Problem is you'd have to reveal the confidence in order to secure the deal (if such a deal is even possible).

A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which teh client has used or is using the lawyer's services.

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.

People have to be able to trust their lawyers to keep their confidences. A system in which clients had reason to worry that their own lawyer would turn against them would be substantially less just than the one we have now because lawyers with less information about their clients' legal position will be less able to represent their interests. It's easy to think the problem will only come up in cases like this one, but in reality it would come up quite often — and would frequently lead to manifestly unjust results that full disclosure could have avoided.

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.

"...but they have notified the DA that there is evidence an innocent man is on trial."

Something tells me that would have accomplished nothing.

Cornellian, the fraud was still being committed. The guilty man was using his lawyers to cause another man's freedom (and thus his financial interests) to be injured.

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.

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.

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?

Cornellian wrote:

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.

Not so. Confessions are often admissible as admissions against penal interest. That's why confessions made to someone other than the person's own lawyer (or cleric, psychotherapist, etc.) are so frequently used as evidence at trial.

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.

Cornellian, the fraud was still being committed. The guilty man was using his lawyers to cause another man's freedom (and thus his financial interests) to be injured.

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?"

"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."

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.

Everybody bashing on the attorneys:

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?

Re Mahan Atma's post, wouldn't the shotgun be Brady material that the prosecution was supposed to turn over -- or didn't the police bother to tell the prosecutor(s) about the it?

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.

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.

This case highlights a reason lawyers are held in such contempt by the general public.

GatoRat wrote:

This case highlights a reason lawyers are held in such contempt by the general public.

Really? Priests who learn such details in confession are also forbidden to reveal them, as are psychotherapists who learn of them during a session. Does the public hold those professions in equal contempt?

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.

Curt Fischer, that's an interesting question. On the one hand there's the attorney-client privilege which is a rule of evidence. Analyzing under that, a blanket statement probably would be ok (I'm thinking of privilege logs that would probably contain something similar). On the other hand, there's the lawyer's independent duty of confidentiality to his client. Under that, no, he could not make such a statement. You can only reveal it to an anonymous ethics hotline from the bar, but not anyone else.

The number of commenters who would approve a breach of attorney-client confidentiality, which is absolutely crucial to our adversary sytem, is surprising.

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.

Fub wrote:

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.

There was no need to seek an advisory opinion since all lawyers know they are obligated to keep their mouths shut in this situation. We all take professional ethics classes in law school and have continuing legal education in ethics throughout our careers. This scenario comes up routinely in such courses, so lawyers know what they must do even if they find it distasteful. Only laypeople are surprised by the requirement.

"How much you want to bet Logan was convicted on rather flimsy evidence?

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?

"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?"

Spend about two minutes checking out the facts of this case, please.

Confessions are often admissible as admissions against penal interest.

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.

"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. "

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

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?
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.

Cornellian wrote:

Confessions are often admissible as admissions against penal interest.

They're admissible against the person making the confession, not against other people, so the admission against interest exception doesn't work here.

Yes it does. The exception is not limited to trials in which the person who made the statement is the defendant. Moreover, had Wilson's lawyers testified about his confession at Logan's trial (on in some post-trial proceeding) the statement would have been offered on Logan's behalf, not against him.

I am becoming strongly of the opinion that it would be preferrable for some way to be found to restrict the comments on this blog to admitted members of the bar and law students; the quality of the comments section is declining radically.

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?

"I am becoming strongly of the opinion that it would be preferrable for some way to be found to restrict the comments on this blog to admitted members of the bar and law students;"

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

I am also taking the MPRE on Saturday. I'm glad I ran across this, because now I can count surfing the web as study time.

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.

Lou, sentencing an innocent person to life in prison is not a crime. I say again...not a crime. So the crime-fraud exception does NOT apply.

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."

Cornellian, the fraud was still being committed. The guilty man was using his lawyers to cause another man's freedom (and thus his financial interests) to be injured.

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.

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.

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.

Can someone please explain why the legal system will collapse if clients don't tell the truth to their legal counsel about being guilty of crimes?
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.

A somewhat similar situation in NC - where the person who died had not given permission to his attorney to break confidentiality. A judge ruled it should be done, he appealed, ... IMHO the lack of permission makes the ethical decision harder.

"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)."

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?

GV:

How sure can we be that the now-deceased client is telling the truth? This thing sounds fishy to me. It's not uncommon for prisoners to "confess" to murders or crimes they didn't commit to enhance their reputation. False death-bed (or post-death) confessions are not unusual as some may think.

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.

I think this point is important enough to repeat.

The rules allow a lawyer to rat out his client to save his own butt, but not to save the butt of anyone else.

"I am becoming strongly of the opinion that it would be preferrable for some way to be found to restrict the comments on this blog to admitted members of the bar and law students; the quality of the comments section is declining radically."

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.

This is less an ethical bind as such than a personal/existential crisis. I wouldn't belittle or scoff at anyone in such a situation, to the contrary, but attorneys flatter themselves nonetheless in imagining this reflects an ethical bind rather than a personal/existential crisis. Likewise, if ethics are not clearly delineated from the legal system, both will tend to suffer.

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.

So you're on the record as saying

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.

Hoffman, etc.:

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 becoming strongly of the opinion that it would be preferrable for some way to be found to restrict the comments on this blog to admitted members of the bar and law students; the quality of the comments section is declining radically."

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.

Also, I in particular appreciate Whit's comments as someone who deals with the criminal justice system far more than most of us do, and adds a dash of realism to many of our discussions, as he did here.

Prime directive for a defense lawyer:

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?

I'm an attorney and I can tell you exactly what I'd do. I'd rat my client out in a heartbeat to save someone from that sort of sentence. If I end up losing my law license, so damn what. Being able to sleep at night is a helluva lot more important to me than being a lawyer.

There have been a few mentions of an attorney violating a client's confidentiality in order to collect his fee. Is this true? Can an attorney violate a clients confidential confession to murder if he isn't paid? Perhaps some "admitted members of the bar [or] law students" can comment?

A. Zarkov,

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.

FYI -- All of the more realistic hypotheticals on this subject (which happen all the time) involve corporate representations, in the context of transactions going bad or internal investigations. Which is why New York has the never-used noisy withdrawal rule.

PostNoBill:

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.

PostNoBill:

“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.

I tend to think Wilson's statement would have been inadmissible and can't be admitted now.

If the case was in federal court, which it wasn't, 804(b)(3) could arguably allowed it in, first if it "so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." There's an argument that his statement actually exposed him to no risk at all- he was talking to someone absolutely privileged, as opposed to bragging about the crime in a bar. Second, to admit it, Logan would have to show "corroborating circumstances clearly indicate the trustworthiness of the statement." I'm not aware of any such circumstances from the story.

But this trial took place in Illinois state court. I'm not knowledgeable on Illinois evidence law but if State v. Tenney, 793 N.E.2d 571, 205 Ill.2d 411 (Ill., 2002) is still good law, the state court would apply the 4-part Chambers v. Mississippi test- it's admissible if (1) the statement was spontaneously made to a close acquaintance shortly after the crime occurred; (2) the statement is corroborated by some other evidence; (3) the statement is self-incriminating and against the declarant's interests; and (4) there was adequate opportunity for cross-examination of the declarant. The confession quite obviously fails the last part of the test and probably other parts as well.

And I consider the confession to the lawyers "evidence" Logan didn't commit the crime- probably inadmissible evidence- but not "proof" as stated in the CBS story, at least as people often use the word "proof" to mean, i.e. "game over" on the question it relates to. We know nothing about Logan, Wilson, or the two lawyers- their motives, relative credibility and accuracy of recall, in particular.

If the evidence is not admissible, and could not have been admitted at the trial- is that a sufficient reason to release Logan? It is hard to see how a court could overturn his conviction on grounds of insufficient evidence; and even harder to see how he could be awarded a new trial, for if you ignore all the other reasons that new evidence located this late might not be sufficient grounds, inadmissible new evidence seems like a mighty weak reason to order a retrial.

Harry Eager wrote (quoting me):

'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.'

There's a distinction without a difference, especially for the only person for whom distinctions mattered.

Wrong. The distinction makes all the difference in the world. There is an exception to the attorney-client privilege when the attorney knowingly helps the client commit a crime or fraud. Had the attorneys helped Wilson frame Logan this exception would apply. There is no reason to believe this is what they did.

The exception does not apply when all the client does is admit that he committed a crime in the past, which is what Wilson did when he spoke with his lawyers.

Why are the two situations not morally equivalent? Because in one the attorney-client relationship is being used to help commit a crime or fraud while in the other it is not. To argue that they are equivalent is to argue that attorneys should always disclose admissions of guilt by their clients — in other words, it is to argue that there should be no privilege at all for clients who have committed a crime or fraud. The system doesn't work that way, nor should it.

A. Zarkov: exactly right, you can't represent someone to the best of your abilities unless you know all the facts. If they do admit doing it, then you certainly don't want them to testify, and you have a duty to withdraw if they insist on testifying falsely.

I have a question regarding the situation in the initial post. What if the attorneys went to the police and said something to the extent of "Look, attorney-client privilege prevents me from saying anything more, but I know for a fact that you have the wrong guy." Since this attorney would (presumably) be a disinterested party, it might make the state think twice (or it might make the state think someone paid the attorney to say that... but to lie about that would be an ethical violation and maybe even a criminal one). Is that fact alone a breach of attorney-client privilege? It's not specific, it doesn't identify the client, so I wouldn't think so.

A. Zarkov,

Please understand that I was not making an ad hominem argument. I was taking a personal shot at you for being a conscience-free dope.

And I don't believe that the ethical rules governing lawyers are comprehensive and without fault. If an ethical rule operates in an unethical way in a given situation, and the stakes are nontrivial, an ethical attorney violates the ethical rule.

Further, no one has suggested violating an ethical rule to balm one's conscience. The suggestion is that violating an ethical rule in this case is the ethical thing to do. Rule 8.4(d) says that it is unethical to "engage in conduct that is prejudicial to the administration of justice." I believe that letting an innocent man go to jail for the rest of his life when such could be avoided by a violation of the attorney-client privilege is conduct prejudicial to the administration of justice. In this case, I believe it would be unethical not to breach privilege.

PostNoBill wrote:

With regard to the admissibility of the testimony, there is a constitutional right to present exculpatory evidence. An attorney cannot be compelled to testify against his client, but if the attorney is willing, the constitutional right of the accused to present a defense prevails.

Not so. As I and others have pointed out, the privilege belongs to the client and not to the lawyer. Even if the lawyer has violated confidentiality, he has not destroyed — or even weakened — the client's right to assert the privilege and prevent the statement from being used in any proceeding.

Unless a recognized exception applies, the attorney-client privilege trumps any attempt to use the client's statement to his lawyer. There is no exception for attorneys who are willing to violate their duties to their clients, no matter how much such an exception would help some other defendant.

PostNoBill:

Rule 8.4(d) says that it is unethical to "engage in conduct that is prejudicial to the administration of justice."

Adhering to the rule of attorney-client privilege is not to engage in a "conduct." I don't see how Rule 8.4(d) relieves you of your duty to your client to respect the confidentially of your communications with him.

Edward A. Hoffman,

If you hold a privilege, the only protection offered is that the evidence cannot be used against you. This is why the Fifth Amendment privilege against self-incrimination cannot be relied upon by someone who is immune from prosecution through deal, pardon, etc. You cannot prohibit the information from being used in ways that are not against you. For instance, a client could not prohibit a lawyer from breaching privilege if the lawyer was ordered to by a bar disciplinary panel.

The evidentiary bar would only operate to prevent anything the lawyer said from being used against the client. The evidentiary bar would NOT operate to prevent the lawyer's testimony from aiding another accused. If you want to claim differently, cite authority. There is nothing in the Rules of Evidence that would operate to exclude the evidence because there is no party to the case against the wrongly accused person with standing to object on grounds of privilege.

<blockquote>I'm an attorney and I can tell you exactly what I'd do. I'd rat my client out in a heartbeat to save someone from that sort of sentence. If I end up losing my law license, so damn what. Being able to sleep at night is a helluva lot more important to me than being a lawyer.</blockquote>

Did you actually read the thread? There's far more at stake here than merely whether or not you can sleep at night. That's why its a painful ethical dilemma and not a no-brainer.

On first glance, I don't see why there can't be some sort of system set up by which lawyers can give secret evidence, inadmissible against their client, for the purposes of exonerating someone they know to be innocent.

The problem though, is that such a system, even if it fully protected the confidentiality of the guilty client, would be ripe for abuse. Lawyers could use it to get guilty clients off left and right: they could even get another willing client to lie and give a false confession that can be used to exonerate the guilty person, but can't then be used against the liar.

That's a problem with this case as well: barring evidence, there's no reason why Wilson couldn't have just lied about his commission of the crime in the first place as a way to eventually do something nice for Logan.

What a mess!

I do think Logan makes an important point: the distinction between the death penalty and life in prison in the canon of ethics really is a pretty pathetic distinction with little real sense ethically. If you can break confidentiality to prevent a death, then you are simply chickening out on your supposed commitment to confidentiality, and then why not allow it for 26 years in jail as well?

If anyone is to be condemned here, it's Wilson of course, who murdered someone and then let an innocent man rot in jail in addition to the crime itself.

Hypothetical: if one of the lawyers murdered Wilson, could would they still be in the clear per his wishes to reveal his guilt, even if they murdered him precisely to fulfill that purpose?

If so, given that Wilson had committed a crime that brought a sentence of death (along with no remorse, since he added to the crime by letting someone else do the time), and given that it was the states own rules that, justified or not, led to this terrible situation, would it have been the ethical choice to murder him?

Rod,

I've got my lawyer hat on and I completely agree with your post.

Bad,

Yes, I read the entire thread. To me, the question of whether to let an innocent person rot in jail for the rest of his life or rat out a murderous client is a no-brainer. I pity those for whom it is not.

"Primarily the guilty are hurt by a lack of trust in their attorney. How would it harm an innocent man? I'm sure some of you can come up with some tantalizing hypotheticals. However, IMHO it is far better that one more rapist or murderer go to jail, than it is to keep privilege sacrosanct."

But the point is, a working legal system with a defense that the accused can trust is not just some random thing we like: it's an ALTERNATIVE to barbarity, frontier justice, and all sorts of other things.

Unfortunately, I'm not sure that our legal system is really all that functional in any case. We have gross misconduct by police and prosecutors left and right, and yet the state is basically set up to make it very politically difficult to correct or even admit any of these problems in any sort of systematic manner.

"Yes, I read the entire thread. To me, the question of whether to let an innocent person rot in jail for the rest of his life or rat out a murderous client is a no-brainer. I pity those for whom it is not."

It's a no-brainer in the sense that it doesn't sound like you've seriously employed one to come to this conclusion, sure. But again, can't you at least acknowledge and address the potential harm that would arise from clients not being able to trust their lawyers: harm that might way overbalance a single bad outcome in a case like this?

And I'm not sure it's so clear that someone rotting in jail is worse than letting a know murderer go free (possibly, for one thing, to kill again) in the first place, which is something that confidentiality also tolerates as a matter of course.

And Professional Responsibility. And let's throw in Con Law. Oh and that lawyer hat of yours...

Armen,

Show me the rule of evidence that could be relied upon by a non-party to keep a willing person from testifying.

"And your kids going to college? And your client's kids?"

And the kids of the innocent guy in prison?

PostNoBill, the question is idiotic. I can only quote Ms. Mona Lisa Vito from My Cousin Vinny when she says, "That's a bull shit question."

Anyway, privilege is governed under the common law. That's how all Fed evidence was until they decided to create the FRE. If you find a case law that supports YOUR proposition though, I'll slit my wrists. That's how highly I think of your arguments and propositions.

Rod:

“A. Zarkov's most recent comment and many of the other comments from the staunch defense attorney types epitomize why many in the general public don't hold defense attorneys in high esteem.”

Ask members of the general public if they would like it if their own attorney broke their confidence. In general most everyone hates a rat. They don’t want their psychologist or their priest to violate their understanding of confidentiality.


How exactly does the whole justice system suffer?

It suffers because clients won’t trust their attorneys. In effect the attorney becomes an agent of the state. That’s what happens in dictatorships.

“I suspect I will catch flak for the naivete of this post. Take off your lawyer hat and put on your philospher's hat.”

I think what you fail to realize is that these rules have evolved over a very long period of time as a response to abuses that will occur in the real world. They aren’t just put in there to protect the guilty.

Bad,

I appreciate you claiming I did not use my brain to come to the conclusion that my bar license and attorney-client privilege are less important to me than an innocent person's life. I can assure you that I did use my brain to come to that conclusion. In fact, I used a specific part of my brain that you and others appear to lack: my conscience.

As a lawyer, I very much believe in the importance of the attorney-client privilege. That is why, if I were faced with the simplified version of events everyone's discussing, I would insist that I be disbarred when I violated that privilege. But I would violate it here (after trying to persuade the client first -- did I misread, or was he already convicted of killing two cops? If that's right, he probably got life without parole anyway).

A. Zarkov: "who said life is easy?" Right, but I'll bet it was a lot easier for these PDs than it was for the guy in jail.

Of course, the facts are almost certainly messier than those we're discussing. If the simple version -- innocent guy goes free if lawyers speak up -- is tough, imagine how a real-world version would look. For instance, maybe (and this is purely hypothetical) the PDs knew that this "innocent guy" had committed other violent crimes. I'm not saying this was a bad guy -- just that not everyone who is wrongly convicted is a squeaky clean stranger to the criminal justice system. Should you sacrifice the way of life you've built for yourself and your family for the possibility of winning a (hypothetical) bad guy's freedom? Maybe, but it's tough for me to be quite so smug about doing the right thing in that situation.

"my bar license and attorney-client privilege are less important to me than an innocent person's life."

But you aren't just willing to give up your bar license and the privilege. You're also willing to give up your own client.

Edward Hoffman,

Of course it is your duty to assert privilege. But the hypothetical here is that a lawyer has shirked his duty to assert privilege and is quite willing to talk about what his client told him. The question then is whether any rule of evidence would bar that sort of testimony in a case where the client-with-the-privilege was not a party. The answer is no.

And your suggestion that you don't have to reveal client confidential information in bar proceedings is, quite frankly, daffy. That is one of the few well-defined arenas where disclosure of such information is mandated.

One question comes to mind. Would you violate a court order to reveal client confidential information?

I find it fascinating that legal ethics is a function of which state one is in.

The evidence is admissible because no party to the proceeding holds a privilege that would make it inadmissible. The only person who could assert such a privilege is not a party to the case. The person who could assert such a privilege cannot be allowed to intervene, either, because that person does not have an interest in the litigation. The party holding the privilege has no interest because any disclosure of privileged information could not be used against that party in a future proceeding. For the party holding the privilege, what happens in a different proceeding does not matter. Therefore, intervention to assert privilege must be denied because the putative intervenor does not have an interest in the case.

Awesome. I can't say anything else. Awesome.

The evidence is admissible because no party to the proceeding holds a privilege that would make it inadmissible.

For a different view, see the rules of evidence.

PostNoBill wrote:

Here's the argument I would make if I were representing the wrongly accused.

The evidence is admissible because no party to the proceeding holds a privilege that would make it inadmissible.

You need to brush up on how privileges work; the holders need not be parties in order to assert their rights.

The only person who could assert such a privilege is not a party to the case. The person who could assert such a privilege cannot be allowed to intervene, either, because that person does not have an interest in the litigation.

The prospect of his privilege being violated is interest enough; he may not have standing to become an intervenor but he has standing to object and to assert the privilege.

The party holding the privilege has no interest because any disclosure of privileged information could not be used against that party in a future proceeding.

The privilege applies regardless of whether it can be used against the holder in the future. It continues to apply even after the holder has died, which would not be true if the law worked the way you seem to think it does.

For the party holding the privilege, what happens in a different proceeding does not matter.

Not necessarily true, and beside the point. Whether the holder has an interest in the outcome of the case is irrelevant.

Therefore, intervention to assert privilege must be denied because the putative intervenor does not have an interest in the case.

Now you're just repeating yourself. Whatever logic your argument does contain is contradicted by the relevant law (except, apparently, in Massachusetts and perhaps a few other jurisdictions) and you have made no attempt to explain why your position should trump established law.

Paul Milligan,

You are absolutely right. The debate here is really between those who believe the Rules of Professional Conduct are the end-all and be-all of ethical rules and those who believe that even ethical rules misfire in some circumstances.

The entire common law system is based upon the idea that sometimes certain situations arise that do not neatly fit within existing law. The very notion of distinguishing a case on its facts comes from the fact that a broad rule announced by a court in one circumstance turns out to operate unjustly in another, unforeseen circumstance.

The broad rule regarding attorney-client privilege does operate unjustly in the circumstance being debated, and there is nothing unprincipled about arguing that in that case, the usual rule should not apply. I'm glad Owen pointed out that at least one jurisdiction has gone ahead and said so explicitly. Other jurisdictions also delineate situations where attorney-client privilege takes a back seat to matters far more trivial than an innocent person spending his life in prison.

And what of the legal principle that a violation of the law is justified in circumstances where adherence would cause more harm than the violation? We have no qualms claiming that speeding to get someone to a hospital is a justified violation of the law if the injured person would bleed to death absent the speeding. Why does that principle have no application here?

"You must simply be astonished that crime is a function of which state one is in too."

Not a all. But I would be astonished if morality was a function of state.

But, perhaps it's improper to call this a discussion about ethics? Given the variance between states, it seems more appropriate so simply say it is a discussion about rules for attorneys in each state. That would make it more like a state tax code. It can differ from one state to another, and there is no presumption of uniformity as many would expect with ethics.

PostNoBill said:

The debate here is really between those who believe the Rules of Professional Conduct are the end-all and be-all of ethical rules and those who believe that even ethical rules misfire in some circumstances.

Really, most of the debate has been over whether or not the ethics rules and the evidence rules permit/require/do not permit disclosure of a client's confession. Very few people have argued that the system is actually the best or that is never backfires. The closest we have come is the argument that in general, the system works better having such rules of confidentiality than not having them.

And I would love to see some authority that a judge would allow into evidence a lawyer's statements about what a client told him, even though the client was not a party.

PostNoBill:

The answer to the first question is “no.” The answer to the second question is “yes.” So what? What I want for my personal survival does not a system of justice make.

PostNoBill wrote:

And your suggestion that you don't have to reveal client confidential information in bar proceedings is, quite frankly, daffy. That is one of the few well-defined arenas where disclosure of such information is mandated.

That is only true where the client who holds the privilege initiated the proceedings. To my knowledge the bar can't make me disclose the confidences of other clients. If a bar representative asked me to do so, I would insist that she explain what law even permits -- let alone requires -- me to do so. If I agreed with her after reviewing the cases, rules, and/or statutes she cited, I would answer. Otherwise I would refuse on the ground of attorney-client privilege.

One question comes to mind. Would you violate a court order to reveal client confidential information?

I would assert the privilege and, if the court persisted, I would take the matter up with a higher court. I would only answer only if the order had not been vacated when I exhausted my appellate remedies.

(I should add that I would also contact the client, if possible, to ask whether she wanted to waive the privilege. There's no point going to war to keep a secret the client doesn't care about. But if the client wanted to preserve the privilege I would proceed as I have described.)

Once an attorney decides that it’s ok to violate privilege (outside the exceptions), then where does it stop?

utter anarchy, that's where- Piggy's glasses broken, and a swine's head on a stake, right there in the courtroom!

Mahan Atma,

Your comment assumes that the "duty of loyalty" the most important duty a lawyer owes, trumping all other duties. That assumption is demonstrably false under existing law, given the several portions of the Rules of Professional Conduct that operate to require a lawyer to do things that are not in his or her clients' best interests.

And yes, I can think of extreme hypotheticals that would cause me to, in your words, "violate a duty of loyalty." I bet you can think up some extreme hypotheticals along those lines too that would cause you to do the same.

Mahan Atma wrote:

Some of us actually believe that not betraying your client is the moral choice, regardless of the Rules.

If you are free to violate the Rules of Professional Conduct to vindicate your morals, then why am I not free to do the same?

PostNoBill wrote:

Your comment assumes that the "duty of loyalty" the most important duty a lawyer owes, trumping all other duties. That assumption is demonstrably false under existing law, given the several portions of the Rules of Professional Conduct that operate to require a lawyer to do things that are not in his or her clients' best interests.

I think I see where you have gone astray. Lawyers owe multiple duties to their clients, of which loyalty is but one -- and not the one at issue in this discussion. There is a separate duty of confidentiality. You're right that there are concerns which trump the duty of loyalty, but there are precious few that trump confidentiality. The only one I can think of offhand (again, aside from the Massachsetts exception Owen pointed out earlier) is the crime-fraud exception.

Nathan_M,

I understand quite well how privilege works. I also understand that if a witness is willing to offer exculpatory evidence in a criminal proceeding, it would ordinarily be unconstitutional for a Court to refuse to admit the evidence. The Constitution trumps privilege.

"Suppose the client happens to tell his attorney that he’s a spy for a hostile foreign power."

"What if a client admits that he comitted the murder ?"

These questions seem to keep coming up - and some folks answers seem mainly concerned with how to protect them, even if it's at the expense of innocent people.

You know what ? I'm not terribly interested in helping confessed murders escape prison. I'm not terribly interested in helping admitted spies violate our national security.

I'm a lot more interested in JUSTICE, and keeping innocent men / women out of jail.

To those who argue against it, I say "Take a long hard look in the mirror, and ask yourself where YOUR morals have gone ?" Not those of the ABA, but YOURS.

If you answer 'The morals in that ABA book are all I need, there is no higher authority', then answer my prior question about Shari'a law.

Otherwise, the rule of "guilty until proven innocent" is meaningless.

Ummm.... reverse that, obviously... :/

I understand quite well how privilege works. I also understand that if a witness is willing to offer exculpatory evidence in a criminal proceeding, it would ordinarily be unconstitutional for a Court to refuse to admit the evidence. The Constitution trumps privilege.

I've got nothing to add to what A. Zarkov, Mahan Atma, and others have already said on this. You're fundamentally mistaken.

I'd cite a case, but I honestly don't know one that explains such a basic concept.

PostNoBill wrote:

I also understand that if a witness is willing to offer exculpatory evidence in a criminal proceeding, it would ordinarily be unconstitutional for a Court to refuse to admit the evidence.

I defy you to show us a case that has ever said this. Is it unconstitutional for the court to exclude the evidence if it's hearsay (assume that no exception applies)? Of course not. Evidence has to be admissible before a court can be required to admit it. This means that it has to conform to the rules of evidence. Hearsay is one type of evidence that (again, assuming no exception applies) the rules forbid. Privileged communication is another.

Paul Milligan said"

"If you answer 'The morals in that ABA book are all I need, there is no higher authority', then answer my prior question about Shari'a law."

Well, actually the ABA's morals are certainly not all I need, but I'll take a shot at your prior question anyway, which was:

"Here's a comparison for you - under Shari'a Law - an ancient and widely accepted philosophy, religion, and law-set all rolled up into one - far older and more widely known than any ABA document, says that under a variety of circumstances punishments such as death by stoning, amputation, whippings, etc are 'justified', sometimes for as trivial an offense as making a joke about someone named Mo, or drawing his picture."

It can be argued that Shari'a has far more legitimacy as a moral code than an ABA book. Do you then accept the above punishments as 'moral', 'just', and 'ethical' ?

My answer: no. I think I see what you are getting at, but you are not really getting there. "It can be argued..." So can a lot of things. What are the arguments for Shari'a?

As for the ABA Rules, several commenters have made rational, policy-based arguments for why we would such a system of confidentiality. Probably the best was that without such a system you never have this information anyway. Lawyers sleep better at night because of their ignorance, but innocent people still go to prison. With the system, lawyers wrestle with dilemmas and people go to prison. Absent something like the ex parte processes I suggested earlier, really the best system seems to be one where sometimes people violate the confidentiality rules, allowing for just outcomes in those cases, but not often enough to undermine the faith of clients in the system. So basically, we need people who take both views on this debate.

A Classic Ethical Bind for Lawyers

And some lawyers wonder why people view them extremely poorly.

For those who aren't lawyers, and/or have any sense of common decency, there would be no ethical dilemma - the right thing to do is clear.

I don't know how anyone could NOT go insane living with this, but apparently there are some who can. I don't care the reason they feel justified - I pity and loathe them.

There have been lots of claims in this discussion that our Way of Life would collapse if lawyers revealed information in cases like this, but no evidence. In fact, it turns out that at least one state has a rule like this, and even though that state is Massachusetts, it would be hard to argue that the rule has destroyed its legal system.

It is arguable that the lawyers involved behaved ethically in following rules they believed in, but it seems to me that someone who wants to claim that the rules are correct should have some evidence beyond years of indoctrination to support that claim. If attorney-client privilege had to be inviolable for our system to work, it wouldn't have any exceptions. That such exceptions exist and the system still works proves that exceptions don't necessarily "eat the rule" and shouldn't be presumed to do so. It may make it more comfortable for lawyers to have such dilemmas resolved for them, but that comfort shouldn't be more important than the right of an innocent man to avoid unjust imprisonment.

But in the situation where the privilege holder could not be legally disadvantaged by a breach of privilege, the evidence is not inadmissible due to privilege. I cannot discern any reason that the rule should be different in this sort of case than in the Fifth Amendment context where the holder of the privilege is no longer subject to criminal sanction.

Well, I can tell you the reason, at least!

The concern, back in England when the privilege was created, was that to get effective legal advice people would have to tell their lawyers embarrassing (in both a legal a social sense) secrets. The concern wasn't just about legal consequences, but also about social consequences if lawyers were to divulge clients' secrets.

For example, suppose a client comes to you to for a will. He's likely to tell you a lot of details (e.g. he hates one of his children, he's leaving a bequest to his mistress) that aren't in any legal sense relevant, but which he wouldn't want repeated.

That's why privilege can be asserted even where a client doesn't face any legal jeopardy, and why it extends past a client's death.

The Fifth Amendment right not to incriminate one's self is based on very different policy concerns, so that's why it doesn't apply if you have immunity.

Edward A. Hoffman,

You write something as insulting as "I am skeptical about your claim to be a lawyer" and expect me to engage in further debate with you? Screw you.

PostNoBill:How is an accurate comment about my state of mind insulting to you? If I happen to be wrong, that's my error and not yours.

Besides, hours ago I started a response to one of your comments with "You can't be serious. Either that or you can't be a lawyer." You had no problem engaging in further debate after that one.

Jay,

I typically handle defense-side civil litigation.

There have been lots of claims in this discussion that our Way of Life would collapse if lawyers revealed information in cases like this, but no evidence. In fact, it turns out that at least one state has a rule like this, and even though that state is Massachusetts, it would be hard to argue that the rule has destroyed its legal system.

Recall that the Massachusetts rule permits disclosure; it doesn't require it. I'd be curious to hear from the criminal defense attorneys in this thread as to whether, even under the Massachusetts rule, they'd disclose a client confidence under the circumstances here (i.e., when that disclosure would mean giving up your client). I suspect that even under the Massachusetts rule, this is not an easy call.

"The concern, back in England when the privilege was created, was that to get effective legal advice people would have to tell their lawyers embarrassing (in both a legal a social sense) secrets. The concern wasn't just about legal consequences, but also about social consequences if lawyers were to divulge clients' secrets."

Which suggests the question, in what sense does attorney-client privilege need to be absolute and in what sense and circumstances does it not need to be absolute, can be broached in a perfectly responsible manner.

PostNoBill wrote:

I just don't find it convincing that a lawyer is, even arguably, converted into an agent of the state if he breaches attorney-client privilege to free an innocent person.

Doing so could get his client prosecuted and convicted of a crime with which he would not have been charged otherwise. Surely you see how that is at least arguably acting as an agent (in a metaphorical sense, not a legal one) of the state.

You argue about the social ramifications about lawyers breaching privilege, and I absolutely agree with you. But shouldn't a court at least think about balancing the harms? It seems difficult for me to see how the social harm of a murderer avoiding the public knowing he murdered someone trumps the harm to an innocent person to be wrongly convicted of the murder

Those are valid points, but it's really an argument that the scope of privilege should be reduced. Maybe that's right, but the law is still clear cut until the legislature or a court changes it.

As a side note, I should add I'm from Canada, and our Supreme Court actually has considered this, and it did decide to limit solicitor-client privilege in a way no American court has (R. v. McClure, [2001] 1 S.C.R. 445).

In Canada, if an accused can establish on a balance of probabilities, that an evidentiary basis exists to conclude that a communication exists that could raise a reasonable doubt as to his innocence then a judge will examine the privileged information, if he is also satisfied the information is not available from any other source and the accused with otherwise be convicted. If the judge is further satisfied, after examining it, that the information is likely to raise a reasonable doubt then it is admissible.

None of the provinces, at least that I'm aware of, has changed their ethical rules to permit a lawyer to disclose information that might meet this test to the defence, however. So if this situation occurred here the lawyers would be in the same bind, with the added indignity that the information might be admissible to exonerate Logan if only they could tell anyone about it.

I've never heard of a case where a lawyer has disclosed confidential information under this rule in the seven years since the case came down.

“Massachusetts has not turned into the U.S.S.R.”

No, but it’s on its way!

More seriously, we don’t know how the Massachusetts rule is going to work out in practice. But you have to admit that Massachusetts is a quirky place. All sorts of things are not crimes if your name is “Kennedy.” Let’s also not forget that colonial Massachusetts brought us the Salem Witch Trials. More recently Massachusetts had some of the worst miscarriages of justice in the child abuse craze that hit the US in the 1980s. For example, the Amirault case.

A. Zarkov,

Couldn't agree with you more about the Kennedys and the Amirault case, but the Salem Witch Trials are a bit dated. Even so, I am not aware of any problems in arising in Massachusetts due to the disclosure rule previously cited. Googling doesn't seem to turn up anything either.

It boils down to this for me. Future crimes are generally disclosable, and most clients don't know that. Most clients wrongly think they can disclose future crimes within the confidential relationship. And yet there is no torrent of lawyers turning in clients for future crime planning.

If disclosure in these cases were the rule, most clients would not know that. Most clients would wrongly think that whatever they said was wholly protected. And yet there would be no torrent of lawyers turning in clients for past crimes. There would be the one-in-a-million case where the lawyers like these could save an innocent man's life. That doesn't tend to bother me in the least.

If I genuinely believed that an absolute rule of nondisclosure was necessary to protect the attorney-client relationship as a valuable societal institution, then I would agree with you. But we don't have an absolute rule now, and I'm only suggesting there should be an additional skinny-as-a-starving-flea exception along the lines of Massachusetts'. That's why I disagree with you.

Rule 8.4(d) says that it is unethical to "engage in conduct that is prejudicial to the administration of justice."

Adhering to the rule of attorney-client privilege is not to engage in a "conduct." I don't see how Rule 8.4(d) relieves you of your duty to your client to respect the confidentially of your communications with him.

It's also not "prejudicial to the administration of justice." The mere fact that a guilty person is exonerated or an innocent person is acquitted is not prejudicial to the administration of justice. The outcome may be unjust, but that's different.

Okay, this thread has had me tossing and turning in bed, so I got up to read the rest of the comments. Here are my observations:

1. People are getting too personal and angry over an internet discussion, and that's a shame.

2. There are certainly good arguments in either direction, and Massachussetts seems to show that an additional exception to the rules of confidentiality won't cause anarchy, though it seems unlikely to be used.

3. I find it hard to believe that the hypothetical is even possible. How can anyone know that evidence provided to a third party's attorney will be able to clear an accused? There should necessarily be some certainty before revealing a confidence.

4. How can anyone know that the third party's confession is true?

5. If death bed confessions sufficed to overturn a conviction then there would be a spate of death bed confessions. If someone's buddy were in jail and he could free him by confessing at his own death, then everyone and his brother will be confessing to any crime. Such confessions would be hardly credible.

The legal system does have injustice, but it's better than nothing.

If it were a disabled man wrongly put in the slammer, I wonder if Title II of the Americans With Disabilities Act would change this result, e.g. was the confidentiality rule ever subject to the ADA's Title II self-evaluation, and is it subject to federal preemption by 42 U.S.C. Sec. 12201(b)? I would not want to be the defense counsel relying in a rule for my protection the State Bar did not self-evaluate. Act at their own risk in doing so. And it could be a BIG risk. Money damages. No Eleventh Amendment immunity.

I'm not a lawyer, so I ask that you forgive my intrusion and ignorance.

What if the PD's actually had proof - that could only be provided/utilized by breaching confidentiality - exonerating Mr. Logan, instead of what I gather was simply hearsay evidence? Would that change the various burdens?

The possibility of an innocent man being incarcerated while officers of the court have access to exonerating evidence disturbs me.

I am becoming strongly of the opinion that it would be preferrable for some way to be found to restrict the comments on this blog to admitted members of the bar and law students; the quality of the comments section is declining radically.

First, this is a great quote. Basically, it says, "We lawyers are smarter than the common man who thinks he runs a democratic society. Such people have no business creating laws through their representatives, much less commenting on them in a public blog. People should simply realize how smart we are and that we should run the world. Free speech and criticism are overrated."

Second, those defending a lawyer's right to keep a murderer out of prison and see an innocent man go are showing exactly why most of the public despises lawyers. For all those who are shouting that we of the uneducated masses are only seeing things in black and white are guilty of exactly the same thing, unable to recognize that there may be cases where it would be unethical to hold such a trust.

I notice that none of those here volunteer to be the one who goes to jail unjustly in order to preserve this right.

Also, for all the griping about how much prosecutorial misconduct is out there, and I know there's a lot, there seems to be no acknowledgement of defense misconduct and miscarriage of justice. If there was a prosecutor out there who had exculpatory evidence, and withheld it for some reason, people would be rightly shouting their heads off.

Too many lawyers see the process as the reason for the system, instead of justice being the reason. The system exists to protect the rights of the innocent and send the guilty to jail. Despite what some believe, it doesn't exist for there simply to be a process. Yes, it's imperfect, but don't forget why it exists.

Yes, I also know that I would be one of the first to go running to a lawyer for protection were I involved in a case of some kind, but that's solely because the system has been rendered ridiculously complex by lawyers, and it is impossible to get an advantageous result in that system, even if you DO have the truth on your side.

America's rule of law is supposed to be one of the great things about our society; America's rule of lawyers is not.

What if the PD's actually had proof - that could only be provided/utilized by breaching confidentiality - exonerating Mr. Logan, instead of what I gather was simply hearsay evidence? Would that change the various burdens?

You mean like the murder weapon?

That worked out well....

(1) Lawyers are allowed to breach client confidentiality to prevent the future commission of a crime.

(2) Imprisoning, and keeping in prison, a factually innocent person is a crime, a violation of "natural" law, and always illegal, regardless if procedures are followed.

(3) Lawyers are allowed to breach client confidentiality to prevent keeping in prison a factually innocent person.

Most lawyers in the U.S. are (unreflective) legal positivists, and will deny (2). But legal positivism is the morally bankrupt position that law is constituted not by right, but who has the biggest guns. Hence, the moral bankruptcy of the attorneys who failed to act.

Platonisto:

(2) Imprisoning, and keeping in prison, a factually innocent person is a crime, a violation of "natural" law, and always illegal, regardless if procedures are followed.

Thank you, I believe that sums up what I have, up till now, believed to be significant part of the basis of how our legal system operated.

The fact that so many of the lawyers participating in this discussion do not consider this to be the central issue I also find very disturbing.

Thanks for you time, gentlemen and ladies.

I recall many years ago seeing, in the intro to a bar review book on legal ethics, a comment to the effect that legal ethics has nothing in common with what the average person considers ethical. There is certainly no pretense of morality in them, but rather, as has been noted here, functionality - without these rules, the system would collapse.

This assumes two things: that the system would fall apart; and that the system should not fall apart.

Has there been any consideration to a from-the-ground-up reworking of the legal system? Has the legal profession become so dependent on the arcane and sometimes bizzare machinations of "justice" that it refuses to reconsider the basic assumptions?

Recently, the VC mentioned a case in Canada where physicians wanted to terminate (passively) a conscious, communicating person without any neurological evidence of brain death - since he obviously is not. When the family went to court for an injunction, the hospital's argument was that the decision was purely - and arbitrarily - that of the physicians. Assuming this was true under Canadian medical ethics, would the Courts have a right to intervene? Why should the arbitrary ethics of the legal system trump the arbitrary ethics of the medical profession? Because the judges control the guns?

Forgive my being naive, but something smells rotten about the "I was just following orders" method of being able to sleep at night.

I don't think this one is very tough at all as a practical matter....Say what you need to say to get the innocent man out of prison. Hand in your bar card if the state bar demands it.

I can find something else to do for a living. There's legal ethics and there's human ethics. I'd choose the latter and live without being a lawyer.

"You've got to admit what you know, face disbarment, and possibly get a new profession.

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."

Best comment made here. The lawyers in question though of their own cushy lifestyle over the hellish ordeal the accused and his family endured. Selfish bastards!

Was prevailing upon an official with pardon powers (presumably the governor) an option? It seems like this would've been easier to manage than going to prosecutors during the trial. I assume there is so statue of limitations, right, so waiting until the statute was up and ratting out his client wasn't an option.

While I tend to think I'd have done everything I could to get the innocent man free (work on appeals pro bono, prevail upon the governor, etc.), and failing that, I'd have breached confidentiality, think of the perverse incentives such an action would create. If lawyers were routinely expected to breach confidentiality to free an innocent, or even a wrongly charged, wouldn't police and prosecutors have an incentive to effectively hold an innocent person hostage in an effort to find the real culprit by forcing his attorney to come forward? Granted, in many cases the perp hasn't retained a lawyer, let alone confessed to one, but the secondary effects of such an action still merit consideration.

This strikes me as similar to many welfare problems. Everyone wants to help flood victims, and everyone wants people to avoid building in flood-prone areas if they aren't willing to deal with the consequences. Often the unintended consequence of helping flood victims is encouraging more people to build in flood zones, so we (libertarians) don't want to bail out people who build in a flood plane. This situation though, doesn’t seem like cutting a check to someone for losing a house on the banks of a river. This seems like a case of not sending a government ambulance to save someone drowning in a flood. Yeah, there are secondary effects to consider, and priciples are important, but c'mon, you gotta save the guy who's drowning/rotting in prison.

I also think that it's an interesting question to determine where the line is drawn. What if ratting out your guilt (of murder) client would save someone from a rape conviction? What about an A&B conviction? What about a ticket for disorderly conduct?

Mr. West Law (150 comments ago) said to me:

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.

Well, it seems one state at least does recognize the correct moral choice. As the other Bob pointed out, I think defense counsel still operate effectively in Mass.

So, I stand by my moral judgment.

I am also glad that I do not do criminal law. Both for my peace of mind and because of the corrosive effect on my humanity that too many lawyers here are showing.

By the way, someone way above quoted an article that said:

tested positive as the gun used in the McDonald's shooting

Can a shotgun really provide ballistic evidence? It is not a rifle which marks its bullets. The pellets cannot as far as I know be connected with a specific shotgun.

Any idea how the shotgun could have "tested positive"?

"you assume that, had the rules been different, the criminal wouldn't have told the lawyers."

That's actually not the right question to ask. The right question to ask is: Would allowing a lawyer to reveal confidences affecting his clients' ability to provide him with information in such a way that the lawyer's ability to represent him would be hampered? It's not about these criminals, it's about the aggregate effect of changing the rule in all criminal cases. Now, do you think that saying to your clients: "If you confess to a crime, and someone else is on trial for it, I'm going to tell everyone you did it" effects their ability to represent that client? I'm sure it does, since a large number of people are going to decline to provide their attorney with information, if they know that to be the case.

Further, we have to think about how we would actually want to construct the rule some people are proposing. Is it just if the innocent person goes to trial? What about when they are arrested? What about if the attorney hears of a police investigation prior to arrest? Being arrested and being investigated are significant intrusions on the life of the innocent party, should attorneys have an obligation to intervene at those earlier stages?

'It suffers because clients won’t trust their attorneys'

I am a newspaper reporter. I talk to 'clients,' or, rather, 'clients' call me to complain.

This may hurt your amour propre, but they already don't trust their attorneys.

When your lawyer negotiates with a prosecutor he is more concerned with his ongoing relationship with the prosecutor than with his client's interests.

This is categorically not true, and spreading this idea is irresponsible, since it undermines the faith of criminal defendants in the one person in the system who is actually looking out for them. Defense attorneys do, indeed, have working relationships with prosecutors. That doesn't mean that they're colluding, it's an unavoidable fact of life when you work with the same group of people day in and day out. Overwhelmingly, this relationship works to their clients benefit, since a defense attorney who has cultivated a reputation of fair dealing will be looked upon more favorably.

Also, your comments about pro se litigants really tells me that you know not of what you speak. The reason judges dislike pro se litigants is that they don't know the rules that govern litigation, and they frequently waste time learning the rules/making obviously wrong arguments. This is, of course, leaving aside the pro se litigants who are actually completely insane, of which there are plenty.

Displaced Midwesterner -

"My answer: no. I think I see what you are getting at, but you are not really getting there. "It can be argued..." So can a lot of things. What are the arguments for Shari'a? "

The fact that IANAL might explain the first half of that :-). I am not 'arguing for Shari'a' ( not by a LONG stretch ! ), but rather taking the example of a different 'set of ethics' than the ABA ones, a set that is well known, etc, etc, as an example, and asking 'If you ( generic, not personal ) are willing to subsume your OWN morality to a publication, to say 'I have no guiding ethics other than what is in that book', then surely those who say that must believe also that the Muslims who amputate, whip, stone, behead, etc, for the crime of drawing a cartoon, must be accepted and 'justified' in their actions, because 'their code of ethics told them to' ?

"As for the ABA Rules, several commenters have made rational, policy-based arguments for why we would such a system of confidentiality. Probably the best was that without such a system you never have this information anyway."

I would argue that that is not correct, and cite the extensive discourse in this thread regarding people's apparent inability to STFU :-). I read somewhere once that a high percentage of crimes are solved because the criminal couldn't resist the urge to brag to his friends about it. There's an old saying somewhere about '3 people can keep a secret - as long as 2 of them are dead' :-)

But to bring an example where the lawyer does NOT know the man on trial is innocent, sidesteps my original question - 'What about when he DOES ?'


A. Zarkov -

"In my opinion one of the worst things a person can do in this life is to violate a trust."

What about the trust we as citizens are supposed to have in the legal system to not put us in jail for the rest of our lives for something we didn't do ? Especially when it's KNOWN that we didn't do it ? And this 'system that we are supposed to trust' MANDATES that our innocence remain secret ? What if the death penalty had issued ? Should they sit there and watch him be killed ? 'In the name of Justice' ?


Bulgaroktonos -

"What really gets under my skin is the people in this thread who seem to think that making one decision or the other is clearly right, and anyone who decided differently is somehow morally flawed."

Which part of 'An innocent man should not spend the rest of his life in prison, when it's known that he is innocent' do you have a problem with ?

"These lawyers did everything they could, in what they understood as their the ethical limitations, to see that justice was done."

No, they took the esay way out, the self-centered way out. They found that 'the rule book covered their asses', and rather than do the RIGHT thing, the MORAL thing, they decided that ' the rules' gave them an out.

Shall we now bring in the obvious comparison to Nazi Germany ? They were 'just following the rules', too, right ? So that excuses them ?

"It's important to remember that they suffered too." ( the lawyers ). Give me a break. Poor lawyers - poor babies ! They had to sit there and ... well, sit there ..... for a few days, not saying anything. WOW !!! What a punishment !!!!

Cheburashka -

"I am becoming strongly of the opinion that it would be preferrable for some way to be found to restrict the comments on this blog to admitted members of the bar and law students; the quality of the comments section is declining radically. "

Perhaps Prof Volokh will make that choice. It is his perogative. Until then, you're just going to have to put up with the great unwashed masses, who are not blessed and gifted with superior intelligence like you.

Like it or not, we have a vested interest in the law, you know. And occasionaly we may infest your smoke-filled back rooms and ivory towers. BTW - we PAID for them, you know. WE THE PEOPLE, aka SOCIETY, paid for them, not you and your lawyer-buddy inner circle of 'priviledged wise men'.

Any idea how the shotgun could have "tested positive"?

Ballistics labs can match more than just projectiles.

There may have been spent shell casings recovered at the crime scene. If so, they could have found more of that exact brand of shells in the gun when it was recovered.

And both the firing pin and the extractor leave marks on the shell which may be unique to a particular gun, or at least shown to be consistent with a particular gun.

First IANAL and this little episode confirms why I'm glad of that.

Second, long before there was a Canon of Legal Ethics, long before there was attorney-client privilege there was "Do unto others and you would have others do unto you."

It is incomprehensible that these two so called men could not find some way of dealing with this BEFORE the innocent was convicted and failing that it is even more incomprehensible that they would not act to prevent an egregious miscarriage of justice --- even at risk to their profession. Frankly I'd value my immortal soul more than my job.

Just another example of our "situational ethics" mindset. If there is any justice these two will rot in H*ll for eternity.

Which part of 'An innocent man should not spend the rest of his life in prison, when it's known that he is innocent' do you have a problem with ?

Your statement is just not an accurate representation of the facts of this case. They did not KNOW he was innocent, they had a confession by another person. A confession is not a fact, it is merely another piece of evidence. It's generally quite persuasive, but it's not a fact in and of itself. Even if the evidence were admitted at the trial(which it probably would not have been), there's no guarantee that disclosing this information would have saved this person from prison.

They had to sit there and ... well, sit there ..... for a few days, not saying anything. WOW !!! What a punishment !!!!

If the morality is so clear, wouldn't making the wrong moral choice be the sort of thing that haunts you to the end of your days? I know that being forced to make this decision would be the worst day of my life, no matter how I made it. There's nothing easy about feeling forced to sit by while something evil happens to another person. Maybe you disagree that they were actually prevented from talking, but this isn't an "out" that made life easier for them. I'm sure these two attorneys struggled with this decision and suffered a great deal, spitting bile at them from the fortunate position of not having had to make a this decision is simply uncalled for.

Paul Milligan:

“What about the trust we as citizens are supposed to have in the legal system to not put us in jail for the rest of our lives for something we didn't do ? Especially when it's KNOWN that we didn't do it ? And this 'system that we are supposed to trust' MANDATES that our innocence remain secret ? What if the death penalty had issued ? Should they sit there and watch him be killed ? 'In the name of Justice' ?”

The comparison you make is not apt. We don’t trust the “system,” and that’s why we have attorneys to go fight for us. Your comment applies more to an inquisitional system than an adversarial system of justice. As a defendant you should not trust the court, but you should, and must trust your attorney. In some cases he might be your only “friend” in the world.

“Several here have predicted that the system will not work if lawyers can give up guilty clients to save another from prison or execution. But, since that appears to be the situation in Massachusetts, we can ask if the system has indeed been crippled in Boston.”

I think you set up a false dichotomy here. I don’t argue that the apparent Massachusetts exception to the rules of confidentially will cause the criminal justice system there to crash and burn. I argue that might work more poorly because it could erode the attorney client relationship. That erosion might be difficult to detect in the short run, but be nonetheless real.

Another thing.

AIUI, this was not the case of the client just blurting out facts that exonerated a third party. What happened was one of those arrested told his lawyer who it was (and allowed his lawyer to tell the lawyer for Wilson (but no one else) that it was Wilson's lawyers confronted Wilson and he told them they could not tell anyone else the information until he was dead. Wilson's lawyers agreed.

It's beyond the issue of what a client expects to do--but in this case the client demanded, and the lawyers agreed, they would tell no one until after his death.

Beyond the bare issue of what a person can/should say if he learns information from his client to exonerate another--there is the additional factor that these lawyers were only able to get the infromation by affirmateively saying they would not reveal it.

I'm still amazed that a new trial is being granted. There's no evidence mentioned that should exonerate Logan except for the word of a dead man. If that type of testimony is allowed, everyone will have a dead cousin confessing.

So tell me, do you inform your clients of this willingess to betray them when they hire you?

That says it all. Becoming an attorney, I vow to put my clients' interests ahead of my own. It's not about me and my ethico-moral drama. Within the rules, I zealously represent the client. Period.

People who say "this is why lawyers have a bad reputation" should consider what kind of reputation we'd have if we divulged our clients' secrets whenever we felt personally obliged to do so.

It would be hard to read all 262 comments but I read enough of them to get the general idea. Lawyers' ethical rules balance the interest of protecting the secrets of a murderer against an innocent man spending over 20 years in prison, and comes down on the side of protecting the secrets of the murderer.

OK, I think I have it straight now. Legal ethics is an oxymoron, practiced by morons.

Robert J., you're incorrect. This exception is part of the rules in Massachussetts, it is not just a part of the comments. I don't think they've suddenly become lawless. It's a sensible exception and it should be allowed in all states, except that clearly some people get really irate at the idea that innocent people should be kept out of jail.

Robert J.'s point is that we can't draw anything from the fact that Massachusetts has this rule unless we know whether any attorneys have availed themselves of it. The Massachusetts rule permits attorneys to disclose, it doesn't require it, and so attorneys in that jurisdiction in circumstances similar to those here may still end up determining that their obligation to defend their clients warrants keeping silent.

Should Adams' attorney, Mr. Doe Esq., find out that Smith knows his client is innocent, what would he do? My guess is that every attorney reading this blog would file suit against Smith for damages to his client.

Sue him for what?

If I were Logan I would be suing the pants off these guys. They were responsible for him spending most of his life in jail and they should not be able to dodge civil responsibility for that by claiming "ethical" responsibilities

Again, suing them for what?

It's a pretty clear issue to me. My career is worth less to me than another man's life, and I don't think the legal system will go to hell in a handbasket if disclosure is allowed in these cases

I think the only people who go around making grand statements about how they would easily sacrifice everything to save someone from prison are people who will never have to make this choice.

And some lawyers wonder why people view them extremely poorly.

For those who aren't lawyers, and/or have any sense of common decency, there would be no ethical dilemma - the right thing to do is clear.

I don't know how anyone could NOT go insane living with this, but apparently there are some who can. I don't care the reason they feel justified - I pity and loathe them.

I don't think you understand.

This is certainly a difficult question, and denying it isn't is being kind of naive.

Our system presupposes that any individual, even a guilty one deserves the representation of an attorney at his trial. Claiming that lawyers are unethical because they defend people that are "guilty" doesn't fly.

You have a client, he comes to you to defend him and he truss you. He believes you when you tell him that anything he says to you is confidential. In order to have you properly defend him, he has to tell you a lot of things that, if you told the police/prosecutor, they would be able to convict him hands down.


To claim that there is no ethical problem with taking what he told you in legal confidence, ratting him out to the police, and allowing him to go to jail and or execution, simply because he revealed that he's also involved in another crime.


Regardless of what the prosecutor is doing to someone else, you have a strong ethical duty not to reveal what your client told you as part of your legal representation. You can do all you can, and probably have a moral duty, to try to convince your client to come forward and face his punishment, but you can't force him to do so.


The question is whether or not this personal duty to your client is stronger than the moral duty to report your clients guilt to a crime where another person is being charged. Many have made the case (rightly so I think) that it isn't, but to deny that this isn't a problem isn't stating it fully.

These two won't have any problems with a disciplinary panel, but they are disgraces as human beings. I've never been in this situation and, having only a civil practice, never will be. I can only hope that in such a situation I would pass the moral test that these two failed.

I'm not a lawyer and I don't watch them on TV either. But it seems to me after reading through the comments here, that those two lawyers should have kept their yaps shut.

26 years? They had over two decades to come up with some idea to help that prisoner out and they didn't/couldn't/wouldn't/whatever?

It's a little late to make up for it at this point.

Better to be quiet then to let everybody know you'll let an innocent man's life be wrecked like that.

You'd be requiring a defense lawyer to put his own client in prison.

EXACTLY. Why is this even hard for you, people? Sheesh.

If you can't put your client's interests first, then don't become a lawyer.

I didn't go to law school to keep innocent people in jail. I doubt anyone else who reads this site did either. They should hve said something, ethics be damned. I could not live with myself if I let someone I knew was innocent spend 26 years in jail.

Erick - Anderson -

"You can't just let a guy free cause some lawyer said he didn't do it. You'd have to let people have details of the evidence. You'd be requiring a defense lawyer to put his own client in prison"

Wrong. Their client had already been acquitted, and could not be re-tried. At the point of the Logan trial, the guilty party Wilson had no penal interest.

John Mc wrote:

Excuse me. I am no lawyer either. But you can't tell me that those two lawyers could not have approached the presiding judge in the case and without disclosing a name told him that as officer's of the court the wrong man is being tried.

The judge could then have granted immunity or whatever based on the lawyers assertions, interviewed the other party on that basis. If finding the evidence credible, the judge could direct the DA to rescind the indictment or issue summary judgment from the bench.

No one is allowed to discuss the case in private with the judge. If anyone does so, the judge has a duty to turn them away and ignore what they say. Otherwise we could never be confident that judges were basing their rulings on the evidence presented rather than the meddling of unknown individuals. The parties to a case are entitled to know what evidence the judge is considering so they can counter it. Allowing judges to consider secret evidence would be anathema to our notion of due process.

And judges can't grant immunity, period. That's something only the prosecutor could do. Most prosecutors would not be willing to grant immunity for a murder.

There's nothing easy about feeling forced to sit by while something evil happens to another person. Maybe you disagree that they were actually prevented from talking, but this isn't an "out" that made life easier for them. I'm sure these two attorneys struggled with this decision and suffered a great deal, spitting bile at them from the fortunate position of not having had to make a this decision is simply uncalled for.

To Bulgaroktonos:

First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me.


Pastor Martin Niemöller

It is in fact very easy for people to stand and watch evil things happen to other men. Humans do it every day - Darfur, Rwanda, the Holocaust, Armenia - come to mind. We all have reasons - we need to feed our kids, they're not our kind. But all that is necessary for evil to triumph is for good men to do nothing.

There is no easy solution to the problem of disclosing this information problem, but equating the harm of struggling with this dilemna to the harm of false imprisonment for 26 years is over the top. You hurt your cause.

These lawyers were faced with a choice. They made it, and someone was hurt, but the system was protected. They were the ones who were free - they could go out side. They could go to a bar, or stay home, or do whatever. They had a choice. Logan's were taken away for 26 years.

re willis

and since you know $1000 bills do not circulate, you ALSO now know that your client is guilty of robbing a mint.

Boy what a day....

Reading the blithe sophistry of the lawyer commenters — not hard to see why people hate lawyers.

"So your entire outrage starting with comment #1 hinges on the fact that double jeopardy may have attached?"

Not at all. I was merely debunking the proposal that the lawyers in this case would be putting their client at risk.

As to someone else's suggestion re : ex parte discussions - I would see no problem from that aspect if counsel from both sides of the current case were invited to hear the statements of the PD's, in chambers. Supposedly, the prosecutor is going to be interested in the TRUTH, not merely 'winning' right ? Ha ha ha. Mike Nifong is rolling on the floor in his vacation home he forgot to report to the bankruptcy court.

"So you're an attorney and a client comes in to pay his bill of $100. He pays with a $100 bill and walks toward the exit. You flip the $100 over and see a $1,000 bill stuck to the back. Ethics question: do you tell your partner about the $1,000?"

Standard lawyers answer would be :Yes, I would tell him about the extra $ 100 I found stuck to the back of the first one' :-)

Paul Milligan wrote:

Their client had already been acquitted, and could not be re-tried. At the point of the Logan trial, the guilty party Wilson had no penal interest.

Why do you believe this? Neither Eugene's post nor the article itself says that Wilson had ever even been charged with the crime, much less acquitted.

Janie4: First, I never equated. In fact I said that it's not the same as time in prison. I don't hurt my cause by point out that in a situation like this everyone suffered, to varying degrees, you'd have to be blind not to see that.

I'm a non-attorney.

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.

"If lawyers violate this canon [then a particular counterfactual will obtain]."

So we have a counterfactual claim about the justice system suffering, against an actual instance of the justice system yielding injustice?

I think much of the conflict in this amazing comment thread can be traced to how people value either the counterfactual or the fact -- principle versus reality. Call it existential if one wishes, but even attorneys who don't rat on principle are not so immune to the existential that they never fart -- however accidentally -- in the courtroom.

'These two won't have any problems with a disciplinary panel'

Yeah, it's not like they commingled client funds or something.

Gotta keep your priorities straight if you wanna be a lawyer.

"If lawyers violate this canon [then a particular counterfactual will obtain]."

So we have a counterfactual claim about the justice system suffering, against an actual instance of the justice system yielding injustice?

I think much of the conflict in this amazing comment thread can be traced to how people value either the counterfactual or the fact -- principle versus reality. Call it existential if one wishes, but even attorneys who don't rat on principle are not so immune to the existential that they never fart -- however accidentally -- in the courtroom.

I don't really think that this is existental.

In this case they attornies waited until the client was dead, mitigating some of the potential harm to him.

However, if they had spoken at the time he told them, this wouldn't be some existential counterfactual. They would have directly betrayed their client by revealing confidential information. They would have put their client in jail by telling the police that he admitted to having committed a crime to his lawyer.

You might say "oh, but he was guilty and he deserved it." But that's ignoring the fact that thousands of defense attorneys across the country defend clients they know, or know that there is a high certainty, are guilty. The law simply doesn't protect only the "innocent defendants."


You might say it's making up "existential counterfactuals" to undermine a system to entitle defendants to representation in the case of an individual known to be guilty and one known to be innocent, but by undermining that system, you do harm that defendnat as well as many other defendants, and it's beyond some existential dread.

'These two won't have any problems with a disciplinary panel'

Yeah, it's not like they commingled client funds or something.

Gotta keep your priorities straight if you wanna be a lawyer.

That is exactly the point. Commingling client funds is a disbarrable offense BECAUSE it is against the best interests of the client. Even if the client is not actually harmed by the commingling, the lawyer who did it should be disbarred.

The sole duty of a lawyer to protect his client's best interests - it is a fiduciary duty and it should not be breached because the lawyer decides that his personal morality says otherwise.

Try this hypothetical:

Your client comes to you and tells you that the dope that the police found was really his. He has a terrible record and will do significant time if convicted. However, the prosecutors think that someone else really owned the dope and are going forward on that case. That person has no record and will get probation for the offense, and will probably even get the charge removed under a First Offender Act or Deferred Adjudication.

Do all of you anti-client "lawyers" sell your client down the river on this on this fact pattern as well?

Look, your personal integrity is priceless. You can give it away for free, but you can't buy it back.
Not to put myself above temptation, but if Destiny were to put me in a position where doing the Right Thing could cost me my career, I hope I wouldn't blink twice.
Those with any sort of theistic confession know that, while the tragedy of existence may make looking the other way perfectly legal on this plane, the Almighty shall indeed require such turpitude of those who let injustice pass.
A fool says in his heart "There is no God".

Janie4: How can you reasonably call the lawyers "actors" in this situation? The lawyers made a commitment to Mr. Wilson that they would not betray his confidences. This isn't an abstract legal principle, it's a promise between the two attorneys and their client. If they are bound by that promise, then they are bound by that promise, end of story. Morally, they don't get to choose when they are or are not going to respect the promise that they've made, that choice lies with Mr. Wilson.

It's not as simple as accepting the penalty of losing their bar license. If they had divulged this information they would have betrayed their client. Even aside from the kind of legal jeopardy this might have put him in, making a promise and then reneging is not something I consider ethical, and I suspect most people would agree with me.

I think you might be placing too much emphasis on the distinction between empathy and sympathy. All I'm asking for is a recognition of the fact that these lawyers did in fact feel bound to their previous promise. They didn't sit down and make a decision based on losing their licenses, they made it based on that promise.

Chris Smith wrote:

Those with any sort of theistic confession know that, while the tragedy of existence may make looking the other way perfectly legal on this plane, the Almighty shall indeed require such turpitude of those who let injustice pass.

Since you mention "theistic confession", I wonder whether what you think a hypothetical priest who heard Wilson's confession should have done. Should he have broken faith with Wilson and gone to the police in order to spare Logan? Or should he have kept quiet and let Logan spend all those years behind bars? My sense is that you think the right thing for the priest to do would have been exactly the opposite of what you think the lawyers should have done.

The case at Northwestern Law ( worth reading for all ! Much more information ! )

http://tinyurl.com/yup9tp

"Coventry and Kunz were representing Andrew Wilson on capital charges in the Feb. 9, 1982, murders of two Chicago police officers. The lawyers said Wilson gave permission for them to reveal his admission in the McDonald's case only after his death. Wilson, who was sentenced to life in prison for the police murders, died last November."

OK, I was unaware of those facts ( as I would guess most here were ). So, Wilson DID have a penal interest in non-disclosure. It was a DIFFERENT multiple homicide they were defending him on.

"Still, Coventry and Kunz said they would have come forward if Logan, who was facing capital charges, had been sentenced to death.

"We were going to do something," Coventry said. "We had a way to get to Governor [James R.] Thompson. We were going to do that. Whether it would've made an impact we don't know. We would've done something to try to prevent the death penalty."

Ah ha ! So, they WERE prepared to 'breach ethics', but only for a death penalty ! And they DID have a means to approach the System that they were willing to take.

However - they made a value judgement that 'if it's merely the guy spending his life in prison, that's OK, as long as they don't kill him'.

Talk about Playing God !!!!

There are exceptions to every rule. Model rule 1.6(b)(5) specifically allows a lawyer to rat out his client to defend himself in court.

That is, if the lawyers here were accused of committing that murder instead of Logan, they would be allowed to reveal anything and everything confided to them in order to mount their own defense, and they specifically need not wait for commencement of an action or proceeding. They can rat him out just on the expectation that they are going to be accused.

I don't believe you are interpreting this rule correctly. From the comments.

Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together.

I'm pretty sure that rule is to defend the lawyer against claims arising out of his relationship with the client.

I don't know how a lawyer could get involved in a case where he could possibly end up being charged with the same crime as his client. Even the slightest possibility of such an occurrence would be a conflict of interest that would prevent him from taking the case.

Bulgatonos: I apologize for jumping on you earlier. That was rude, and adds nothing to the debate. I was projecting what I would think of a lawyer who did this to me and my family.

I agree that it was probably hard for thsoe lawyers. They were bound by a promise to their client, and betraying that promise would have been very hard for them. But the alternative was that a man went to jail for 26 years for something he didn't do. I'm not sure if that was a promise that should have been kept for 26 years. At some point, when do you say stop? There is a point where keeping some promises means more damage than violating them.

The question is, is the damage to the system worse than the damage to the individual? If it were routinely done by lawyers, and individuals could no longer share information with their attorney, than maybe the system would be too badly damaged. But in this case, a man lost a third of his life to protect the system.

But I call them actors because the lawyers acted. By keeping that promise, they chose and acted. They may have felt they had no other choice, but they did. There may never be good choices, or easy choices, but in most situations, there are choices.

Clarification to my last paragraph:

...same crime as his client where the charge arose from events before the litigation.

I find it interesting how people like Skyler criticize lawyers because "there are already plenty of ways to rat out [a lawyer's] client" and says a lawyer will "sing like a mockingbird" while simultaneously criticizing these lawyers for not betraying their client's confidence.

Quoting Alias - "I think the idea is basically that (1) everyone deserves competent representation, and (2) to get competent representation, people need to be able to trust their lawyers to keep their secrets."

I think lawyers (and judges) have elevated means over ends, and this is a good example. The purpose of the system of law we have is to attempt (as we best we can) to distinguish guilt and innonence, while providing an assumption of innonence. That does not mean that "everyone deserves competent representation". Someone who is actually guilty of a crime doesn't *deserve* a rigorous defense or an assumption of innonence, we just can't be sure who actually *does* deserve a vigorous defense and so we err on the side of caution. Elevating the process over the desired outcome would make sense if there was reason to have high confidence in the process...but to create a code of ethics that explicitly elevates the process over the desired outcome of accurately deciding guilt or innonence seems mistaken to me.

I don't particularly care if someone *who is actually guilty of a crime* fears revealing that fact to their lawyer. If that makes defending them more difficult, so be it. If it makes it more likely that *an actual criminal* will trust their lawyer less, well, to use the vernacular; too bad, so sad.

Try this one on, campers -

Wilson was in prison for life for a double-murder of two cops ( as per the case info at Northwestern ), when he admitted a PRIOR murder to his lawyers.

They didn't say anything, and let an innocent man spend his life in jail to protect Wilson from a possible death penalty.

Why couldn't they go to the DA, even via an intermediary to retain anonymity, and say 'Look - what if I knew someone is on trial for a crime someone else confessed to, a Capital Murder case. The person who confessed is ALREADY in prison for life, so the only issue for him is the death penalty. Would you agree to take the death penalty off the table, if I can get the guy to come forward and testify at the trial of the innocent man ?'.

If the DA says 'yes' - take the offer back to Wilson. maybe even offer him some kind of incentive - a choice of a prison closer to home, room with a view, whatever. Not because he deserves it, but because saving an innocent man is more important.

I don't see any mention at Northwestern of any such attempt. I would think the PD's would want it known that they at least TRIED, if they had in fact tried.

"Those here who seem determined to claim the moral high ground, whether in this specific instance or as a principle that should always stand, are relying heavily on assumptions that are simply not feasible in a real-life situation."

Which side is trying to grab the moral high ground? It appears everyone is fighting over it, but nobody has yet captured it.

"An order of "keep silent about this, allowing an innocent man to be jailed for life" is as immoral an order as "kill these innocent Jews" and the fact that your client ordered you to do it is irrelevant. "

"Great. Lawyers (like me) who obey their oath are Nazis. Niiiice. "

And how, pray tell would you have us distinguish between you and they ? They were just 'obeying their oath' while innocent people went to prison ....

Again , the basic posit - having taken an oath does not excuse one from immoral or unethical behavior, regardless if the oath requires it.

Gang-bangers take an Oath to their gang - outlaw bikers take an Oath to their clubs, White Power freaks take an Oath to whatever-in-the-hell bullshit they take their oaths to - are they now excused from all morals and ethics, in your world view ? Does their 'oath' over-ride and redefine 'right and wrong', to you ?

If a gang-banger knows that his fellow gang-banger killed a little girl in a drive-by, and doesn't say anything because 'he swore not to' - is he an honorable man, in your opinion ? Is he acting in an ethical and moral manner ? After all, he Took an Oath !!!!!

Eid über allen, is that your stance ? Does is sound familiar to you, phrased in that language ? It says "Oath over all", which is your position.

You may find the comparison distasteful, but it's sure hard to argue against, huh ?

Owen wrote amid this insanely long thread at 3.6.2008 11:36pm:

Edward A. Hoffman,

[EAH's response to my post, elided.]

From Comment 9(a) to Rule 1.6 (Confidentiality of Information) of the Massachusetts Rules of Professional Conduct:

Rule 1.6(b)(1) also permits a lawyer to reveal confidential information in the specific situation where such information discloses that an innocent person has been convicted of a crime and has been sentenced to imprisonment or execution.

Surprised?

Only a stupid lawyer wouldn't consult with the ethics board in this circumstance. Different states interpret the rules differently, and a man's freedom was at stake. This wasn't a clear-cut situation.

In fairness to Mr. Hoffmann, the case under discussion was in Illinois, which apparently doesn't have this exception in its ethics rules.

But I do think either Mr. Hoffman failed to comprehend, or I failed to express clearly, my point about seeking an authoritative advisory opinion.

That purpose was to create a contemporaneous record. That record could be used in the future and reasonably predictable heated public discussion of the case upon the death of the client. It would incontrovertibly demonstrate that the lawyer was not acting upon his own interpretation of ethics rules at the time, and was indeed following the law rigorously. It would also demonstrate the moral gravity with which the lawyer approached the issue at the time.

A secondary reason, which would require more than one such inquiry, and which could only succeed with considerable and clever effort, would be to bring to the attention of authorities the existence of a case where the unvarnished rule caused a miscarriage of justice -- and to do so without violating the rule against disclosure.

I think there are strategies which would have a decent chance of accomplishing that without breeching the rule, but no strategy I can think of is absolutely certain to succeed. They would also involve risk to the lawyer(s) for contempt of court, which is a lesser evil than the wrongful murder conviction or the penalty for breeching confidentiality. But they would add little to this already lengthy discussion.

I take it as given that Wilson's lawyers were barred by legal ethics from revealing what they knew and saving Logan from a lifetime in prison, but I believe they were required by human ethics -- ethics, plain and simple -- to reveal what they knew about Logan's innocence, legal ethics be damned. I worked hard for my law license, but I'd throw it away in a minute without regret rather than go to bed every night for 26 years knowing I was keeping an innocent man in prison. Being a lawyer isn't everything, and not being one isn't the end of the world -- but being unjustly convicted of murder is a fair definition of the end of the world.

I thought that as officers of the court it was incumbent on the lawyers to tell what they knew in this case. This type of ethics is splitting Occam's Razor even more so. And now I can see why it is said that lawyers are not trusted but are down there with used car salesmen and journalists.

I wonder what the public reaction would be if it were known that an unnamed innocent person was in prison, and the legal establishment proposed he stay there because they don't think any of their members should have to violate client confidentiality by giving up a client?

As a practical matter, does anyone think any political or social leader would line up with the bar? As a further practical matter, does anyone think the managing partners of the largest law firms would publicly support leaving the guy in prison? The deans of prestigious law schools? Who would stand up and demand the guy stay in prison?

[quote]Excuse me. I am no lawyer either. But you can't tell me that those two lawyers could not have approached the presiding judge in the case and without disclosing a name told him that as officer's of the court the wrong man is being tried. [/quote]You're right. You're not a lawyer. Those two lawyers could not have done that. Moreover, had they done that, it would have been worthless. To quote the legal documentary My Cousin Vinny, "Judge Haller: Once again, the communication process broken down. It appears to me that you want to skip the arraignment process, go directly to trial, skip that, and get a dismissal. Well, I'm not about to revamp the entire judicial process just because you find yourself in the unique position of defending clients who say they didn't do it."

We have procedures. Going to a judge and telling him, "Someone else did it" is not a valid procedure. The judge would properly ignore them, except for the purpose of getting their names to report them to the ethics committee.[quote]The judge could then have granted immunity or whatever based on the lawyers assertions, [/quote]Judges can't "grant immunity," and who is the judge supposed to be granting immunity to, and for what?[quote]interviewed the other party on that basis.[/quote]Interview what other party? Do you mean the actual killer? He's not a party to anything, and the judge has no power to "interview" him.[quote]If finding the evidence credible, the judge could direct the DA to rescind the indictment or issue summary judgment from the bench.[/quote]A judge has no power to "direct the DA to rescind the indictment" merely because he finds someone else's secondhand confession "credible."[quote]Better to let a murderer go free than an innocent man in jail. And lawyers wonder why they are despised for their 'ethics'? When ethics dictate that an innocent man be jailed there is something wrong with the ethics.[/quote]Nobody is innocent or guilty until a jury says so.

Nathan M -
"Nazis dress more sharply than criminal defence lawyers.

Seriously, that's got to be the new dumbest comment in the thread."

You mean your non-response ? I agree.

I see you studied that old lawyer's axiom :

When you have the facts, pound the facts.
When you have the law, pound the law.
When you have neither, pound the table.

"We have procedures. Going to a judge and telling him, "Someone else did it" is not a valid procedure. The judge would properly ignore them, except for the purpose of getting their names to report them to the ethics committee."

Correct. We do have procedures, and I trust you have accurately described them. But those procedures change, and have steadly changed over the years. Under current procedures the guy stays in prison. I'd say the whole point of this discussion is that there may be a way to improve the procedures.

Does anyone contend the legal industry is in a perfect state that cannot in any way be improved? If so, is there any other industry in the same state?

A doctor does not secretly test drugs on you for the greater good. An accountant does not steal from you to give to the poor. And a lawyer does not rat out his client to help somebody else's client.

So why the other exceptions, then? A lawyer is allowed to do it to prevent someone else's client from being killed. How come a lawyer just "does not" do one, but the other is allowed?

And why does Massachusetts allow it? Is the Massachusetts rule unethical?

I had thought we got pass the following rules/orders tripe at Nuremberg. Perhaps the Bar is behind the curve.

Ethics is about moral and immoral decisions; and this was immoral.

But Hey, I guess, at the end of the day, all the lawyers got paid. JUSTICE DONE.

S.C. Ruffey wrote:

Some of the alleged attorneys here need to make the following statement to their clients:

"I am your attorney and I will represent you within the bounds of what my personal morality is. However, if I decide that something you tell me in confidence can be of assistance to someone else whom I believe to be innocent of some crime then I will sell you down the river in a heartbeat. And I will feel good about it."

I'm guessing that any attorney with that policy would have a hard time finding clients.

Suppose the law were that all attorneys had to make that statement? Or at least suppose, not-so-hypothetically, that they had to disclose the rules as they actually are in Massachusetts. Then the problem would go away, wouldn't it?

I notice that the people who argued early in this thread that society would devolve into anarchy -- anarchy, I tell you! -- if lawyer-client confidentiality were breached have pretty much quit making that claim since the Massachusetts rules were mentioned.

?

The lawyers in question though of their own cushy lifestyle over the hellish ordeal the accused and his family endured. Selfish bastards!

Yeah, 'cause, given the choice between:

(a) Complying with the ethical rules that govern one's profession; and

(b) In the interests of keeping a perfect stranger out of jail, kissing off the time and money that went into earning one's professional degree, enduring professional disgrace and the loss of earning capability, and facing a forced career change late in life,

What right-thinking human being wouldn't choose (b)?

</sarcasm>

I know many here are struggling with questions concerning the proper scope of the lawyer's professional duty of confidentiality. For me the more interesting question is not what is the scope of legal ethics in such and such a particular factual setting. The facts of the case under discussion present a starker issue for lawyers: is there anything that has a higher, prior, claim on one's conduct than the Rules of Professional Conduct? For me and some others the answer is an easy, clear "yes," at least in the sort of extreme circumstances presented by this case. For some others, including presumably Anderson, Zarkov and Ruffey, the answer appears to be "no." I hope I am wrong and that they'll tell me I am.

"All we're getting here is whinging gibberish by people who aren't lawyers, don't know what lawyers do, but do know one thing: they don't like lawyers."

That's not all you're getting, sir: you're getting civil and, I hope, pointed disagreement from some people, like me, who are lawyers, and who "know what lawyers do." Reading this thread, I'd say there is an element of sneering contempt by some lawyers for lay people that is at least as unappealing as the anti-lawyer jibes some have expressed.

Correct. We do have procedures, and I trust you have accurately described them. But those procedures change, and have steadly changed over the years. Under current procedures the guy stays in prison. I'd say the whole point of this discussion is that there may be a way to improve the procedures.

If that were all people were saying, it would be a shorter, politer conversation. People aren't just arguing the rules should be changed; they're arguing that the rules and anybody who follows them are evil.

Does anyone contend the legal industry is in a perfect state that cannot in any way be improved?

Of course not. But to quote Chesterton:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, "I don't see the use of this; let us clear it away." To which the more intelligent type of reformer will do well to answer: "If you don't see the use of it, I certainly won't let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it."

This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious. There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.

Are we to evaluate arguments based on the presenter's occupation?

No. Just whether a person has any useful insight into a particular profession's occupational rules, i.e., whether they know what they're talking about.

It's abundantly clear that many commenters here, don't.

In other words, David McCourt wants to hold a little situational-ethics inquest, in which he can point at people who take the rules governing their profession seriously and yell, "J'Accuse!" because he disagrees with them.

Brett, I make no inquest. It was Zarkov who said that people like me don't belong in the legal profession -- and perhaps not in the country. Read his post.

I take the rules of the profession seriously. I just don't think they are the only rules that I must take seriously. The question for me is: what do you do when the rules governing lawyers conflict with what I take to be the rules governing people. Adherence to legal ethics may keep you square with the bar, but that's not the only place I need to be sqare with. In legal terms, I don't think legal ethics occupy the field of human conduct so as to pre-empt plain old ethics. If you do, then congratulations to you.

In legal terms, I don't think legal ethics occupy the field of human conduct so as to pre-empt plain old ethics.

I don't, either. But I do think that legal ethics occupy the field of lawyers' conduct so as to pre-empt plain old ethics.

To put it another way: when you are acting as an attorney you are bound by your professional obligations, not whatever "higher morality" you subscribe to. If you are incapable of laying aside your "higher morality" to the extent necessary to to fulfill your professional obligations, then Zarkov's is exactly right: either you should not be practicing law, or you should at least steer clear of those practice areas where you're going to run into these issues.

Mr. McCourt does not evince any understanding of what it means to act in someone's stead.

That's what "attorney" means; it's why we call lawyers "attorneys at law," to distinguish them from someone else acting on someone else's behalf. Hence "power of attorney."

I don't represent my client based on the idea that I can put my own principles above those of my client. I can decline representation on that basis, but once someone's my client, my obligation is to that person, not to my own ethical or moral principles.

That is why the rules are mostly about setting the relatively few limits to this zealous representation - I can't lie on my client's behalf, I can't destroy evidence, etc.

Some clients need legal advice precisely b/c they think they've done something illegal and want to find out what to do. Apparently, all of those people cannot trust an attorney, on the theory of this thread's commenters. (No "only for guys sentenced to XX years" arguments -- Prof. Volokh will tell you all about slippery slopes.)

If you cannot put your client first, then you should not be a lawyer. And if you want to criticize lawyers for that, then ask yourself, if and when you hire a lawyer, whom do you want that lawyer to put first -- you, or himself?

Brett -

"Are we to evaluate arguments based on the presenter's occupation?

No. Just whether a person has any useful insight into a particular profession's occupational rules, i.e., whether they know what they're talking about.

It's abundantly clear that many commenters here, don't."

What' s 'abundantly clear' here is that some people think their 'professional rules' are the end all and be all of ethics and morality, and are wilin gto blindly follow orders from same, wihtout ever connecting 2 synapses in sequence.

Sorry - "I was just following orders' is not acceptable, whether those orders are from the ABA, or the SS, or anyone else.

You having 'rules' does not defacto validate those rules, nor the behavior of those who follow them.

It seems clear to me that the existence of a separate confession could have been brought to the attention of the prosecutor without revealing either the identity of the confessor or the lawyers themselves. They could, for example, have hired a third lawyer to pass the information along. The prosecutor in such a situation might not treat the confession as fact (anonymous hearsay, etc., as many have noted), but there would probably have been ways to verify the testimony, up to and including a grant of immunity to the confessor in return for the evidence provided.

I have no clue whether prosecutors would grant immunity for testimony to prove innocence, but if they do, the practice gets less press than the practice of granting immunity in order to advance prosecution. If they don't, it suggests that they consider the appearance of justice more important than the fact, the act of retribution more important than the accuracy of its target. Some theories of justice would agree with them. The deterrence effect of the death penalty doesn't depend on whether the sentenced convict is actually guilty, for example, as long as most of the audience is convinced of his guilt. Allowing evidence of the severity of a crime and its effects on victims in order to determine guilt (as opposed to punishment) is consistent with this theory.

I am generally unconvinced by the arguments in favor of privilege in this thread, not because I don't believe privilege is important, but because I don't believe absolute privilege is the only mechanism that can work. As someone pointed out [paraphrasing], "He got screwed by the legal system. People get screwed by the legal system every day." That should be a call to improve the system, not one to embrace and defend its warts.

Paul Milligan, spare me the self-righteous moral preening. I had my fill of it when the QandO guys went on their anti-torture tear.

No one here has argued that legal ethics are the end-all and be-all of human morality. Let us have a moment of silence for that poor straw man, who has been folded, spindled, and mutilated in this thread. And this "ABA Model Rules of Professional Conduct == Nazi diktats" nonsense is so profoundly stupid as to defy my earnest efforts to characterize it; you will be entitled to snark about others being unable to connect two synapses in sequence when you demonstrate some capacity for same.

What this boils down to is that you don't have the faintest idea what you're talking about. You don't know what policy choices inform the ethical rules that attorneys are bound by; you just know that you don't like the outcome the rules resulted in, here. As a result you're bound and determined to not only declare the rules illegitimate, but also to brand the people who take them seriously as villains like unto the Nuremburg defendants.

Okay. We get it. We all hope your moral certitude keeps you warm at night. We adults would like to have a serious conversation, now, so please come back when you have something useful and not-ignorant to contribute.

Beyond that--I'd like just a little bit of outrage directed at the police and prosecutor for ignoring the clear evidence pointing to Wilson and putting an innocent man in jail.

What clear evidence pointing to Wilson? It is not on the CBS link.

I followed other links, and found conclusory statements that a shotgun was tested and found to be the weapon--but there was no statement of what those tests entailed--no word, for example, of expended shotgun shells and indentations from the firing pin--as one earlier poster suggested.

There were also, apparently, eye witnesses who identifed Alton Logan as the triggerman.

So those who want to claim the prosecutors or the police acted in an unethical manner--please point to something that should have been done. (I agree that there was a Brady violation if there was actual evidence linking the shotgun to the McDonald's homicide--I have just not seen any real evidence in that regard).

"No. Just whether a person has any useful insight into a particular profession's occupational rules, i.e., whether they know what they're talking about.

It's abundantly clear that many commenters here, don't."

I agree. And I see them on both sides of the question. Some people are applying general morality and ethical considerations to a specific occupation with little knowledge of the occupation. Others are employing tunnel vision to ignore anything outside the confines of their occupation, and show little evidence of knowledge or imagination beyond their occupation.

Some show a dislike for lawyers. Others object to having any non-lawyer comment on the matter. So, we are blessed with a good bit of ignorance on the part of both lawyers and the non-lawyers.

My certitude is that lawyers will argue for or against, justice be damned, as long as the check clears.

Ethics is self imposed and variable.

The check clearing is a certitude.

Enough said.

Except in this situation, the attorneys were Public Defenders. The check cleared regardless.

It seems clear to me that the existence of a separate confession could have been brought to the attention of the prosecutor without revealing either the identity of the confessor or the lawyers themselves.

"Stop the trial! Someone else confessed to the crime!"
"Who?"
"I can't tell you."
"How do you know?"
"I can't tell you that either."
"Oh, well, in that case, I'll immediately drop the charges and set the defendant free!"

They could, for example, have hired a third lawyer to pass the information along. The prosecutor in such a situation might not treat the confession as fact (anonymous hearsay, etc., as many have noted), but there would probably have been ways to verify the testimony, up to and including a grant of immunity to the confessor in return for the evidence provided.

1. How exactly can one "verify the testimony" when there isn't any testimony, just a thirdhand claim that some anonymous person said that he committed a crime?
2. Why on earth would a prosecutor grant immunity to a murderer?

(Even if your answer to that last question is, "to avoid convicting an innocent person," that wouldn't make any sense. If I'm on trial for murder, I'll just get my friend to get immunity and admit he committed the crime. Then he can't be tried because he has immunity and I can't be retried because of double jeopardy.)

"Elliot - the non-lawyers and the lawyers here have something in common - we are all subject to the legal system. We are all, each and all of us, at risk of being Mr. Logan next time. As such, we all have the right to speak on it."

Absolutely. I hope nothing I wrote implies anyone should remain silent on the matter. Society grants various occupations certain privileges, and evaluation of all such occupations and privlegdges is the business of all citizens.

Brett,

I would say that your last post directed at Paul Milligan was extremely intemperate and, in a word --- if I may use it in this context -- unprofessional.

Elliot 123 has to my mind accurately characterized this discussion, and I was groping toward that when I suggested to Anderson that we were talking past each other. As I don't wish to join the game of yelling past each other, which is where this is going, I take my leave of this thread.

<i>Some show a dislike for lawyers. Others object to having any non-lawyer comment on the matter. So, we are blessed with a good bit of ignorance on the part of both lawyers and the non-lawyers.</i>

And some of the non-lawyers know they are ignorant, say they are ignorant, like to come here and read to reduce their ignorance, and make comments and questions to help that reduction, and get mocked for it.

We do have a government by the people, not the lawyers. It isn't a bad idea for the lawyers to advocate for reasonable improvements to the system to reduce popular outrage. That can keep non-lawyers, like me, from banding together and inducing our representatives to make unreasonable improvements to the system.

I do think that discussion would be at least as interesting as the one where everyone climbs on their high horse.

Personal ethics always trumps professional ethics. There are two cases:

1. The people whose professional ethics always trump their personal ethics because they believe their professional ethics are always the best personally ethical choice.

2. The people whose personal ethics sometimes trump their professional ethics because they believe their personal ethics sometimes is the best personally ethical choice.

So, it's silly to claim people are without ethics or a conscience. People here aren't just obeying the rules. They think the rules are right. And people here aren't just violating the rules. They think violating the rules is right.

The Nazi comparison is utterly and completely without merit, since no one here is taking an 'I'm just following the rules' position. It is a bad argument.

Yours,
Wince

Those who claim the rules of professional conduct are all that one should pay attention to

Well, there's your problem: No one has claimed any such thing.

Nathan, it is still only a hypothetical. Mr. Logan is in jail for whatever reason we don't know. We also have no clear idea that anything that a dead man said to his lawyers can change that. There has been no revelation as to the nature of the confession and what evidence is involved. There is nothing to indicate that the dead man's confession is even accurate. We don't even know that Logan is innocent, just that some dead man claims it.

So, yes, in a perfectly hypothetical world what the lawyers did was dastardly. I agree with that. But on examination, there is no indication that even if they wanted to that anything different could have happened.

Someone brought up the torture topic, and it's actually similar. There is not really any chance that there's a "24" scenario of someone knowing a code to disarm a bomb that will destroy Chicago, but it's always sure to engage a debate (which we shouldn't do here).

The reason that the Massachussetts exception is so unremarkable is that it's not likely to be used.

"The reason that the Massachussetts exception is so unremarkable is that it's not likely to be used."

That's interesting. If there is no professional rule precluding the attorney from divulging his client's guilt to save another from execution or prison, what is the standard the attorney should use in making such a determination? Is it any different from that of the average man on the street who may have simlar information? The man on the street is not subject to a prohibition rooted in the rules of conduct; neither is the attorney.

Elliot, the rules "permit" the disclosure for those exceptions. That means that they are left to their own judgment as to whether they will or not. This is not something that would typically be judged on a "reasonable man" principle, it is entirely at the discretion of the attorney. But I've not passed the bar yet, so I'll yield to others more knowlegeable on this.

I doubt it, too, Elliot. But I've reviewed them, and I have yet to find a single example of a person claiming that rules of professional conduct are the be-all and end-all.

But let's put it to the test, okay? Is there anybody who thinks that professional ethics and personal ethics are wholly coterminous?

once someone's my client, my obligation is to that person, not to my own ethical or moral principles.


Isn't your obligation always to your ethical or moral principles, no matter what, by definition?

How exactly is it possible to give up an obligation to one's ethical or moral principles?

If an innocent person is put in jail for 26 years, why is that *not* comparable to Nazis? Is there *that* much difference between ordered to kill someone innocent and being ordered to let an innocent person be jailed for 26 years?

In a word, yes. There is an enormous difference, both in the law and in everyday life, between acting and the mere failure to act.

Beyond that, though, no one here was "ordered to let an innocent person be jailed for 26 years". Messrs. Kunz and Coventry voluntarily assumed a professional obligation to safeguard their clients' secrets. It so happened that disclosure of one of these secrets might -- might -- have spared an innocent man from going to jail.

Elliot, permit me to once again quote what you wrote, above:

Those who claim the rules of professional conduct are all that one should pay attention to

My interest is in whether "those" really exist, or are simply a convenient straw man to bludgeon.

PLR: Rules of professional ethics are not the same as societal ethics. If you choose to follow one set to the exclusion of the other, you are forced to accept the risk of condemnation from those who think you chose badly.

To think I spent over an hour reading this morbidly fascinating thread (on a Friday evening, no less), and you had to go spoil it all with a concise remark that gets to the heart of the whole discussion while stripping away all the legalese and moral hand-wringing. Gee, thanks a lot. ;)

Many previous commentators here have posted to the effect that "no wonder people hate lawyers". In light of PLR's comment (and others here), maybe attorneys have to have a somewhat different conception of morality than the rest of us in order to do their jobs effectively, and that morality gulf is the real reason for the "hate". In fact I wonder if this might not be creating an adverse-selection phenomenon, in which those most inclined toward, and most capable of, pursuing legal careers tend to be precisely those most willing and able to brave the morality gulf.

Waaaaay up at the top of the thread, A.S. wrote:

You've got to admit what you know, face disbarment, and possibly get a new profession.

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.

I haven't seen anything in this thread to persuade me that A.S. didn't have the right take on the situation.

Skyler wrote:

The reason that the Massachussetts exception is so unremarkable is that it's not likely to be used.

In that case, what is your objection to it? Had it been in place, Kunz and Coventry could have violated confidentiality, we wouldn't be having this conversation, and ... lemme see, there was something else ... oh yeah, an apparently innocent man wouldn't have spent 26 years in prison.

Why not change the rules to avoid this sort of situation in the future? Why is it OK to break confidentiality if an apparently innocent man will be executed, and OK to break confidentiality if the financial interests or property of a third party will be substantially injured, but not OK to break confidentiality if an apparently innocent man will be sentenced to life in prison?

Brett wrote:

Yeah, 'cause, given the choice between:

(a) Complying with the ethical rules that govern one's profession; and

(b) In the interests of keeping a perfect stranger out of jail, kissing off the time and money that went into earning one's professional degree, enduring professional disgrace and the loss of earning capability, and facing a forced career change late in life,

What right-thinking human being wouldn't choose (b)?

</sarcasm>

Perhaps I'm missing Brett's point, but frankly, I would choose (a). The fact that Brett seems to think that he's being sarcastic is a little scary and a lot too revealing, IMHO.

Brett,

Your straw man is flesh and bone. If you read through the thread, you'll see that Anderson and I were having precisely the argument you say doesn't exist, and he was taking precisely the position -- that "the rules of professional conduct are all that one should pay attention to" that you claim no one advanced.

In the discussion I said the question was:

"is there anything that has a higher, prior, claim on one's conduct than the Rules of Professional Conduct? For me and some others the answer is an easy, clear 'yes,' at least in the sort of extreme circumstances presented by this case. For some others, including presumably Anderson, Zarkov and Ruffey, the answer appears to be 'no.'"

In direct response to this Anderson wrote:

"Mr. McCourt does not evince any understanding of what it means to act in someone's stead. That's what 'attorney' means .... I don't represent my client based on the idea that I can put my own principles above those of my client. I can decline representation on that basis, but once someone's my client, my obligation is to that person, not to my own ethical or moral principles.
That is why the rules are mostly about setting the relatively few limits to this zealous representation - I can't lie on my client's behalf, I can't destroy evidence, etc."

I replied by saying:

"Agency has its limitations, as you admit. You say those limits are set exclusively by rules adopted by the profession, and that (non-professional) ethics have no place at all. I disagree, because I don't think that abiding by professional ethics can excuse conduct, in the extreme case presented here, that is unethical in every day terms."

It seems to me that a fair reading of what Anderson was saying was that "the rules of professional conduct are all that one should pay attention to." If not, he had every opportunity to say otherwise. I think you have read the thread selectively to miss this.

What bothers me here is not the non-attorneys who, not surprisingly, don't understand the ethics that attorneys subscribe to, but the attorneys who want to find a way out of this. Maybe it was the way that I was taught legal ethics, with this sort of dilemma put up front, and being told that if we weren't willing to subscribe to this set of ethics, we should quit law school, then and there, and maybe go to medical school, where their graduates can learn creative billing fraud as CME. Or, maybe it was growing up in an environment of lawyers, judges, etc. In any case, I knew when I was being sworn in, that I would be compelled by that set of ethics to do some things over my career that I didn't like personally, but I also believed, and still believe, that the basic ethical rules benefit society (I am excluding here some of the less important (IMHO) rules, such as Internet advertising rules), and so I was willing to commit to that set of ethics.

Confidentiality is one of the cornerstones of legal practice. Those PDs and other criminal defense attorneys couldn't do as good job as they do or did without it. Keep in mind that the only one really on a defendant's side is his defense attorney. The prosecution typically has the benefit of the police and their own investigators. Judges often become cynical about criminal defendants quite quickly when they ascend to the bench, esp. since most are guilty. Very quickly, they have heard every imaginable story. So, who does the defendant have in his corner to stand against the state in all its might? Defense attorneys, and they typically need every advantage they can get. And one of the things that they have is confidentiality to allow their clients to disclose enough information, in the hope that some of it can be useful in their defense.

The trade off here then is between this type of miscarriage (if there indeed was one, which is merely assumed, but not proved here), and the help that confidentiality provides defense attorneys. And, in the scheme of things, it is likely that the sum of years of prison saved by them by being able to guarantee confidentiality is far greater than the sum of the number of years lost by innocent defendants in this sort of scenario.

Legal ethics do change over time, and maybe a slight modification like that in MA is warranted here. I don't think so, but maybe. For example, when I was taught ethics, a zealous representation was at the top of the list. But that turned into license to do a lot of things that were not in the best interests of society. So, under the new(er) rules, other priorities trump zealous representation, such as candor and honesty (but arguably they are mostly trumped by confidentiality).

The gate example above was very good. We have a rule that has worked well for a long time now, at least here in the U.S., and rushing out to change it based on a single instance where it possibly did harm, would likely be quite harmful. Maybe, after careful thought, a MA type exception may become generally accepted. But I would suggest that we shouldn't go there nationally until it has been well tried out.

We have a rule that has worked well for a long time now, at least here in the U.S.,

And, at least in the opinion of lawyers. I think this whole thread is evidence as to the extent to which the views of the people running the legal system have diverged from those of society in general.

For more than two centuries, the natin has expected that, as an inevitable result of the necessity of war for its security that a number of soldiers will be killed, mutilated, blinded, or driven insane.
We make provisions for these people.
The legal system is, according to the arguers, putting people known to be innocent in jail, will continue to do so, and doesn['t seem to be interested in complaints from the rest of us.
So, as I said before, is there a provision to take care of these martyrs to a lawyer's sense of his obligations?
After all, there have been and will be more Logans. It's inevitable, inescapable.
What are the provisions for addressing their unjustly applied punishments?
I note my previous question went unanswered.
I expect that the presence of a process might lead the public to the conclusion there are examples--which might include them--and perhaps lawyers, so proud of their ethics are not sure they want the public to know about all of the ethics.
Are these two PDs going on the lecture circuit to tell--at a substantial fee--fascinated audiences about the moral load under which they have been staggering the last quarter century? If so, maybe they could send the money to Logan or his estate.

David McCourt, I think your "fair reading" of Anderson is actually decidedly unfair. He's advancing the argument -- also made by Zarkov and myself -- that one who permits his personal ethics to trump his professional obligations to clients (as defined by rules of professional conduct) has no business undertaking to represent clients in the first place. This is not the same as arguing that professional ethics are wholly coterminous with societal ethics, i.e., the "be-all-end-all" straw man that posters such as Elliot and Paul Milligan have been kicking the hell out of.

Mike G. in Corvallis, I wrote that in response to somebody who was carrying on as if it was the only obvious choice, as a right-thinking human being with a heart and a soul, to piss away one's legal career based on the conviction that it's better to rat out a client in the hope that the uncorroborated disclosure might possibly spare a third party a potentially-lengthy prison term, than to live up to one's professional obligations under ethical rules.

I don't begrudge anybody looking at these facts and saying, as some in this thread have, "I would rat out my client; I'd rather lose my career than see an innocent person go to jail, if I had any power to prevent it." That's a perfectly respectable position to take.

What I object to, and find contemptible, is the attitude that some have taken, which is that ratting out one's client is the self-evidently right thing to do under the circumstances, such that anybody who hesitate to do so is like unto a Nazi.

Brett wrote:

I don't begrudge anybody looking at these facts and saying, as some in this thread have, "I would rat out my client; I'd rather lose my career than see an innocent person go to jail, if I had any power to prevent it." That's a perfectly respectable position to take.

I'm so glad I wouldn't lose your respect for my choice. Although I'll bet you would vote to have me disbarred.

By the way, is it really plausible that an attorney would "lose his career"? How likely is it that a lawyer would be permanently disbarred for breaking this rule, especially if the circumstances were publicized? Wouldn't it be more likely that he'd suffer a temporary suspension of his license to practice law?

And would someone with a suspended license to practice law have to abandon all career options open to someone with a legal background? After all, Sandy Berger seems to be doing pretty well, even though he's been temporarily disbarred.

What I object to, and find contemptible, is the attitude that some have taken, which is that ratting out one's client is the self-evidently right thing to do under the circumstances, such that anybody who hesitate to do so is like unto a Nazi.

What I find perplexing is the attitude of some here that any attempt to fine-tune the ethics rules (as Massachusetts has) to better handle situations like this one would be dangerous, foolish, destructive to the very fabric of society, and downright evil.

I must say that I find it disquieting that you persistently use the expression "rat out" ... might there be some less prejudicial phrase you could use than one associated with the Mafia's policy of omerta?

Erick - "There is no way to get this evidence out there in a way to exculpate the innocent man without ensuring the guilty guy will now go to prison."

I'm obviously not conversant on the arcana of the law, but "the guilty guy" going to jail is a bad thing? I apparently need a lawyer to explain to me what is so terrible about setting an innocent man free and instead convicting the person who actually committed the crime. I'm guessing that only *outside* the legal profession would this be considered a win-win.

I reiterate my earlier comment that the means seem to be elevated above the ends.

Jon Burrows - "My certitude is that lawyers will argue for or against, justice be damned, as long as the check clears."

Lawyers are just like members of any other profession; they are full of decent people, snakes, and everything in between. The difference is that if a lawyer makes an ethical lapse in his profession it can have enormous consequences to someone else, whereas if a plumber/waiter/janitor makes an ethical lapse in his profession the consequences will likely be relatively small. Of course, the condescending and self righteous assertion by some of the lawyers in this thread that us "lay" people should shut up and keep our noses out of a discussion about ethics in the practice of law is absurd. For those lawyers, as soon as the practice of law doesn't affect anyone but lawyers, we'll accept that position.

I'll repeat what I asked Brett earlier as a general question:

Is it really plausible that an attorney would "lose his career" for breaking attorney-client privilege in a case such as this one? How likely is it that a lawyer would be permanently disbarred for breaking this rule, especially if the circumstances were publicized by the media? Wouldn't it be more likely that he'd suffer a temporary suspension of his license to practice law?

For that matter, wouldn't it be conceivable that the public outcry against punishing a lawyer who risked his own career in hope of freeing an innocent man would provide an impetus to change the ethics rules? Breaking the law and being willing to take the consequences worked for Dr. King.

No one is allowed to discuss the case in private with the judge. If anyone does so, the judge has a duty to turn them away and ignore what they say. Otherwise we could never be confident that judges were basing their rulings on the evidence presented rather than the meddling of unknown individuals. The parties to a case are entitled to know what evidence the judge is considering so they can counter it. Allowing judges to consider secret evidence would be anathema to our notion of due process.

And judges can't grant immunity, period. That's something only the prosecutor could do. Most prosecutors would not be willing to grant immunity for a murder.

-- Edward

Ok, a judge can't grant immunity. I'll buy that. The judge is also suppose to be impartial. But the judge is also suppose to be an arbiter of justice and not just the referee in a steel cage death match in the court room. And a judge can certainly haul a prosecutor into chambers and indicate that he is privy to evidence detrimental to the State's case.

Cannot a judge declare a mistrial? But the point is, if 'the process' is so hind bound that it is fully willing to jail the innocent then justice is perverted.

Mike G. in Corvallis, I wrote that in response to somebody who was carrying on as if it was the only obvious choice, as a right-thinking human being with a heart and a soul, to piss away one's legal career based on the conviction that it's better to rat out a client in the hope that the uncorroborated disclosure might possibly spare a third party a potentially-lengthy prison term, than to live up to one's professional obligations under ethical rules.

Yes, any one with a conscience would turn in a MURDERER. Your EXCUSES are just RATIONALIZATION for being a COWARD.

Ok, a judge can't grant immunity. I'll buy that. The judge is also suppose to be impartial. But the judge is also suppose to be an arbiter of justice and not just the referee in a steel cage death match in the court room. And a judge can certainly haul a prosecutor into chambers and indicate that he is privy to evidence detrimental to the State's case.

First, he can't.

Second, in the scenario described, he isn't. He's privy to gossip, not evidence.

Cannot a judge declare a mistrial?

Not because of an illicit third party ex parte conversation, no.

But the point is, if 'the process' is so hind bound that it is fully willing to jail the innocent then justice is perverted.

The process doesn't "jail the innocent." It jails only those whom a jury has found guilty beyond a reasonable doubt.

And I refer you back to the Chesterton quote I posted earlier in this thread: people who don't understand the rules shouldn't be the ones to try to reform them. Assume someone is on trial for your friend's murder. You've been following the trial, and it looks good for you. Suddenly the judge announces a mistrial, or calls the prosecutor over and forces him to dismiss the charges. The only explanation is, "the judge decided he was innocent." But you can't find out why. Later on, the most that you can find out is that someone approached the judge in his chambers and said something secret to him.

Does that sound like 'justice' to you? Or like a corrupt secret back-room bargain?

David M. Nieporent - "And I refer you back to the Chesterton quote I posted earlier in this thread: people who don't understand the rules shouldn't be the ones to try to reform them."

I can almost feel the pat on the head.

And I refer you back to my earlier post in this thread where I opine that ultimately it is the citizens who should be determining the rules of the legal profession, not members of the legal profession. The rules governing the application of the law is just as important as the law itself.

I find it telling that the legal profession is (aside from the medical field) the only profession to be governed by a guild, with a licensing system that effects the legal system that is not accountable to the electorate (or are there elections to positions within with ABA that I'm missing). It is interesting that the legal profession is the only one that is not accountable for malpractice, a major and obvious difference from the medical field. Even if a court explicitly declares legal council to have been incompetent, you can't sue a lawyer for malpractice.

I'm sure it's not difficult to figure out why that is so.

The idea that citizens should have no say in the rules governing the legal system is another way of saying that citizens should have no say in their own governance. If that is the opinion of a significant portion of the legal profession, I think you will find that hostility to the legal profession will only grow, and rapidly at that.

Finicky?

Well, OK. Now I want all the defense lawyers in the ABA to introduce a resolution at the next annual convention that all those arguments against the death penalty based on the horrid -- but merely hypothetical -- prospect that a mistake might be made were just 'finicky.'

The reason these guys were talking about if the guys got death they might squeal is that death is different not because of the RPCs; every other decision the system makes is reversible save killing its mistakes. Spending half of your adult life in prison isn't all that reversible, either.

However, put this in context. There are a whole lot more innocent men in prison than just this one. This is an outlier case, almost a freak occurence - even assuming the truth of Wilson's uncorroborated confession. If you want to fix the system to reduce the chances of convicting an innocent, there are a many higher priorities. Forensics labs and medical examiners vary from excellent to frauds who find whatever their employers want them to find. Eyewitness identifications of strangers are very often mistaken, but most courts will not allow the defense to introduce expert testimony about that. Neither will the courts let expert witnesses testify about false confessions - even though dozens of people convicted mainly or solely on their confessions were proven innocent once it became possible to do DNA tests on tiny samples. Juries often take even uncorroborated testimony of some admitted scumbag, traded for leniency, as the gospel truth - as long as they are testifying for the prosecution. Any experienced cop knows that career criminals have an easier time lying than telling the truth; what may act as a filter to find the truth is matching their story up against other known facts, but it's extremely unlikely that the jury will hear whether they learned the corroborating facts before telling their story, guessed many times until they found a story the cops accepted, or actually came out with a story that could be corroborated without prompting.

Anderson (mail):
Taking an oath to uphold what your (perfectly legal) profession requires is not in the same ballpark as gangsters and white supremacists, let alone Nazis.

The problem with that argument is that extermination camp commandant was a perfectly legal job in Nazi Germany. The distinction is moral, not legal - sometimes to follow the law in Nazi Germany was clearly immoral, not just by our standards, but according to the way nearly every German old enough to be in a position of authority had been raised. OTOH, we've all been raised to regard revealing confidences as anything but a clearcut issue - "rat" and "snitch" are other words for that. Not being a lawyer, doctor, or minister, for me this would be a case where snitching was necessary, but then there's no reason for someone to count on my silence. (Not that this necessarily stops people from blabbing. Back when I was young and poor and lived in a very bad neighborhood, I heard a couple of stories that could have put the tellers in prison - although nothing that I felt I had to reveal to prevent someone from being hurt.)

A lawyer (in most states) has sworn to never reveal what his client told him to his client's disadvantage. It may or may not be a good idea to slightly modify that rule - but while it stands, if you can't follow the rule, you shouldn't be a lawyer.

As for the various attempts to find compromises that would free Logan without harming Wilson - the only workable one was to wait until Wilson died. No claim by a lawyer that some un-named person confessed to the murder is going to derail a murder trial, unless the prosecutor is already so concerned about a shaky case as to be ready to look at other suspects - and in that case, there's Wilson with the apparent murder weapon... Even if Wilson had been willing to testify in court, it's unlikely that he would have been believed without enough corroborating evidence to put him at risk even without a confession.

"And I refer you back to the Chesterton quote I posted earlier in this thread: people who don't understand the rules shouldn't be the ones to try to reform them."

There is really nothing difficult about understanding the rule we are discussing. What makes you think people don't understand? My observation is they understand and disagree.

Apparently Massachusetts also disagrees. Do they lack an understanding?

Let me go one step even further. All charges against Logan are dropped. As they are strapping down Andrew Wilson -- your client (after all he is the guy you rep) -- to the gurney and are killing him how do you as his counsel live with yourself?

You should feel gosh darn good. As a defense attorney, your only professional obligation is to prevent INJUSTICE to your client. Your client being convicted of a crime he committed is NOT an injustice. By not being a coward, you prevented injustice from occurring to another person. Good for you.

Correction: The word "have" should be omitted.

"Everyone with the title that includes either the words affirmative action Attorney at Law or diversity Lawyer should be fired immediately. These people are leeches and deserve no sympathy."

:-)

Maybe it's because I was utterly fascinated by this train wreck of a thread but I've actually looked at nearly this whole conversation. I see good arguments for both sides but I'm bothered by some of the points I'm seeing:

1) Lawyers aren't the only ones bound by confidentiality. Others have raised the issue about priests yet it keeps getting ignored. Why is that?

2) Due to the problems with the prosecution and the witnesses, Logan might have gone to jail anyway! Others have already explained that Wilson's confession would have been inadmissible. I trust that I don't have to explain why hearsay is generally a bad thing? Also, was there any real evidence that Wilson did it? You've all heard of false confessions right?

3)People keep yapping about how they're not bothered by guilty people not wanting to tell their lawyers things. Well, how about innocent people? People are already prone to lie for no good reason. Hasn't anyone ever watched an episode of House? Discouraging people from trusting their lawyers is not good.

4) Maybe Massachusetts has a great rule for these situations. Good for them. But that wasn't the rule where these lawyers in question were!

5) Criminal defense lawyers are generally quite poor. So let's stop with the whole 'they were motivated by greed' crap.

6) Logan got a bad deal. I think everyone agrees on that. I think the schism is between the people who want to look only at this isolated example and condemn the entire system and those who are perhaps taking too much of a big picture approach at things. It would certainly be bad if all lawyers took the law into their own hands so to speak but perhaps in extreme circumstances like this, someone should take the personal risk. But again, see point #2.

7) The legal system is not perfect. It's not about 'justice.' Lawyers are essentially mouthpieces for their clients. They operate under the rules. If the rules suck then by all means work for their revision and condemn a society whose values call for such rules. But to say that lawyers as a profession suck because they follow rules and laws? Heavens, we can't have that!