A Classic Ethical Bind for Lawyers:

CBS reports:

Alton Logan doesn't understand why two lawyers with proof he didn't commit murder were legally prevented from helping him. They had their reasons: To save Logan, they would have had to break the cardinal rule of attorney-client privilege to reveal their own client had committed the crime. But Logan had 26 years in prison to try to understand why he was convicted for a crime he didn't commit....

Lawyers Jamie Kunz and Dale Coventry were public defenders when their client, Andrew Wilson, admitted to them he had shot-gunned a security guard to death in a 1982 robbery. When a tip led to Logan's arrest and he went to trial for the crime, the two lawyers were in a bind. They wanted to help Logan but legally couldn't....

The lawyers did get permission from Wilson, to reveal upon his death his confession to the murder Logan was convicted for. Wilson died late last year and Coventry and Kunz came forward. Next Monday, a judge will hear evidence in a motion to grant Logan a new trial.

I'm not a legal ethics expert, but my understanding is that there is indeed no exception from attorney-client confidentiality in such cases. (If a client tells you that he intends to commit a crime in the future, you may be able to turn him in, but not when he admits that he has committed a crime in the past.) And I can certainly understand the reasons for such a confidentiality rules, whether for lawyers, priests, or psychotherapists. But, boy, they surely do yield a very troubling result in a case such as this one.

Thanks to Paul Milligan for the pointer.

Related Posts (on one page):

  1. Duty to Save a Wrongly Convicted Person at High Cost?
  2. A Classic Ethical Bind for Lawyers:
Paul Milligan (mail) (www):
Among the many troubling issues, is this one :

"They watched Logan’s trial to see whether he got a life or death sentence. "We thought that somehow we would stop at least the execution," Coventry tells Simon."

So, they were willing to let a man they know to be innocent spend his life in prison, to protect a man they know is guilty and free, but if there had been a death sentence, they '... thought that somehow they might stop it' ?? When ? After 20 years on death row ? Or perhaps on the gurney ? Or maybe come to the 'ethical decision' to let him die ?

Sorry, campers - there is something terribly wrong with a 'system of ethics' so twisted, so amoral, as to not only permit, but demand, this. That is not 'ethics', that is 'perversion'.
3.6.2008 7:50pm
Steve2:
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?
3.6.2008 7:51pm
Mahan Atma (mail):
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.
3.6.2008 7:55pm
Mahan Atma (mail):
"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.)
3.6.2008 7:58pm
A.S.:
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.
3.6.2008 8:00pm
alias:
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.
3.6.2008 8:02pm
EH (mail):
A.S.: I have to wonder if a single lawyer has ever done/risked that in the history of the bar, and what the result was.
3.6.2008 8:03pm
Mahan Atma (mail):
"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?
3.6.2008 8:03pm
Steve2:

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.

I was speaking with regards to ethics, not law. I've long been aware of that error in the law.
3.6.2008 8:04pm
Charlie (Colorado) (mail):
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.
3.6.2008 8:04pm
George Weiss (mail) (www):
Hmm, they knew they were in this situation-perhaps they could have anonymously informed the ethics committee people of this little "hypothetical" problem with the rules-

of course they might have tried and the ethics people might have said-nah that could never happen!

OTOH-if you do have an exception for information that may set somebody free of a crime-where do you draw the line (suppose the confession of the murder is necessary to get somebody off a traffic ticket etc..)..or suppose the confession of the murder is necessary to get someone off civil liability? to prevent a disbarment or loss of other administrative license?
3.6.2008 8:04pm
Paul Milligan (mail) (www):
"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'.
3.6.2008 8:05pm
Skyler (mail) (www):
Oh boy, I'm studying for the MPRE on saturday, so that makes this one especially juicy.

I'd say these lawyers were absolutely wrong. Even if their interpretation of the rules is correct, there is a certain moral obligation that goes beyond the ethical or legal obligation.

But i would say that they were allowed to reveal the information.

Rule 1.6(b)(2):

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.


It seems to me that they were willing to invoke subparagraph (1), which allows disclosure to prevent a death but not subparagraph (2) which allows disclosure to prevent injury to financial interests.

I think if I were those lawyers, I would have attempted to reveal the information to the judge in a way that would allow him to throw out the case, and then the judge should recuse himself from real guilty person's trial. If that didn't work, I would be a bit more public with releasing the information. Of course, I'd have to withdraw from representing the guilty person.

Then, if anyone complained about revealing confidential information, I would argue it in court or in front of the bar association as appropriate. Win or lose, either one is a much lesser harm than having a man in jail for 26 years.

This one's a no-brainer.
3.6.2008 8:06pm
Mahan Atma (mail):
"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?
3.6.2008 8:09pm
tmittz:
Paul Milligan:

A death sentence would allow them to reveal what they knew. ABA confidentiality rules have a proviso:

1.6(bA lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm

That's why they were watching for a death sentence, not any darker motivation about playing God. I assume the uncertainty in phrasing has to do with at what point the death sentence becomes "reasonably certain".
3.6.2008 8:10pm
Paul Milligan (mail) (www):
"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.
3.6.2008 8:13pm
byomtov (mail):
Would Wilson's confession to his lawyer be admissible against him at trial? Seems like it couldn't be, since otherwise the attorney-client privilege is only as strong as the attorney's interest in remaining an attorney.

I agree with those who claim that there is a moral obligation to prevent an innocent person from going to jail even if it means changing professions. Like, Charlie, I wonder if I (a non-lawyer) or many others would have the courage to do this.
3.6.2008 8:17pm
...Max... (mail):
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?
3.6.2008 8:18pm
Steve2:

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


No, I don't think there's good reasons for it. I can't actually think of any reasons for it besides "precedent's always been that way". On the other hand, I don't see a moral difference between acting to cause someone an injury and knowingly being able, but refusing to, act to intervene to prevent the same injury from the person. In both cases you make a decision, and in both cases the injury happens as a result. Ergo, the situations are interchangeable, since the relevant facts are the same. Identical culpability is incurred for the injury, and identical punishment should follow in both situations.
3.6.2008 8:19pm
tarheel:
Max:

Problem is you'd have to reveal the confidence in order to secure the deal (if such a deal is even possible).
3.6.2008 8:22pm
Oren:
If so, I'd have a much bigger problem with the prosecutors than I would with Wilson's attorneys.
Yes. The prosecutors and judges that rammed this through out to be disbarred or at least reprimanded. Why anyone would blame these defense attorneys is altogether beyond me.
3.6.2008 8:22pm
Cornellian (mail):
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.
3.6.2008 8:27pm
NI:
I wonder if it might have been ethically possible for them to have quietly approached the prosecutor and told him, off the record, that a client had confessed without naming the client. If they don't name the client, they haven't really breached a confidence (and presumably they have enough clients that without giving more information the DA won't be able based just on that conversation to figure out which one), but they have notified the DA that there is evidence an innocent man is on trial.
3.6.2008 8:28pm
Edward A. Hoffman (mail):
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.
3.6.2008 8:29pm
Mahan Atma (mail):
Gee, big surprise:

"In 1982, now 54 year-old Alton Logan was arrested for the murder of a security guard at a McDonald's in a robbery gone wrong. Witnesses identified Logan along with Edgar Hope as the two perpetrators of the crime. A few days later, however, while police were hunting down brothers Andrew Jackie Wilson for an unrelated murder of two officers, a raid on Andrew's suspected hiding place unearthed a shotgun that tested positive as the gun used in the McDonald's shooting. However, because there were allegedly only two perpetrators in the McDonald's robbery/shooting, and because the police already had two suspects in custody, charges were never filed against Andrew Wilson in that case."


LINK

I'm sure the defense attorneys are to blame.
3.6.2008 8:30pm
Mahan Atma (mail):
"...but they have notified the DA that there is evidence an innocent man is on trial."


Something tells me that would have accomplished nothing.
3.6.2008 8:32pm
Bob from Ohio (mail):

substantial bodily harm


I think being in maximum security prison for 26 years is pretty harmful to a body.

This is why the public hates lawyers. Can't say I blame them.

Kunz and Coventry are pretty poor excuses for human beings. One of them needed to take the risk. Who knows, permanent disbarment may not have happened, the state supreme court may have let them off with a reduced sanction based on mitigating circumstances. At least they wouldn't be going to hell when they die.
3.6.2008 8:32pm
Skyler (mail) (www):
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.
3.6.2008 8:34pm
Armen (mail) (www):
If they don't name the client, they haven't really breached a confidence (and presumably they have enough clients that without giving more information the DA won't be able based just on that conversation to figure out which one)

Uh, they can't tell the DA, they can't tell their friends, they can't tell their family. Omitting a name does not make it ok. This is the CLIENT's privilege. Not the lawyers.

And everything else Cornellian said. I can't grasp the outrage here. Oh and I strongly suspect this isn't the only such case. Just so happens this guy agreed to waive the privilege after his death. Others might take it to the grave with them. There's nothing a lawyer can do. Nor should he.
3.6.2008 8:34pm
Guest101:

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?
3.6.2008 8:34pm
Paul Milligan (mail) (www):
TMITTZ -

Where does spending the next 40 or 50 years in prison fit in, if not "substantial bodily harm " ? Don't you have a 'reasonable expectation' of 'substantial bodily harm' in a prison environment ? Isn't that a reality of the prison system ? What about the MENTAL harm of having your life taken away from you in all ways except the mere corporeal ? Is there nothing short of death that actually counts ? Someone else mentioned 'financial compensation' - how do you compensate someone for a lifetime in prison ?

And how can a sytem that not only excuses this, but MANDATES it, call itself ethical, 'a Justice System' ?
3.6.2008 8:34pm
Edward A. Hoffman (mail):
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.
3.6.2008 8:38pm
Paul Milligan (mail) (www):
Oren - "Why anyone would blame these defense attorneys is altogether beyond me."

I pity you.
3.6.2008 8:39pm
Armen (mail) (www):
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?"
3.6.2008 8:39pm
Guest101:

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.

Mere injury to the financial interests of another is not fraud. Fraud requires (going off the top of my head here) obtaining something of value from another though intentional deceit. While an argument might be made that Wilson obtained "something of value" by avoiding going to prison, it's quite a stretch to argue that this is a case of classic fraud since Wilson never had any direct contact with Logan, made no misrepresentations to him, and obtained nothing directly from him. I've never heard of civil or criminal liability for fraud being established in a case like this.


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.

No, it wasn't. He's still in jail; he might get a new trial sometime next year. And in any event, even if he is ultimately exonerated on the basis of this evidence, that hardly undermines the fact that there was (and is) no guarantee that, had the attorneys revealed this information 26 years ago, Logan would have been acquitted.
3.6.2008 8:42pm
Elliot123 (mail):
"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.
3.6.2008 8:42pm
Richard Aubrey (mail):
IANAL.
It's not a justice system. It's a system for ordering society.
I, too, see the applicability of paragraph 2. If you insist it does not apply, please explain.
3.6.2008 8:42pm
sjalterego (mail):
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?
3.6.2008 8:45pm
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.

For those of you blaming the lawyers, they were follow the law. If you don’t like that law, feel free to petition your state legislatures to change it.
3.6.2008 8:45pm
CheckEnclosed (mail):
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?
3.6.2008 8:45pm
Edward A. Hoffman (mail):
A lot of commenters seem to presume that Wilson somehow caused Logan to be convicted, but the facts Eugene provided don't say this. Wilson may not have played any part in the case. If the authorities simply suspected the wrong guy and were able to persuade a jury of his guilt without Wilson's involvement, then Wilson didn't cause his imprisonment.

Even if he did play a part, that doesn't mean his lawyers did anything blameworthy. Keeping Wilson's secret is not morally equivalent to actively helping pin the blame on Logan, which is a point many commenters here seem to have missed.
3.6.2008 8:48pm
Guest101:

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.
3.6.2008 8:48pm
A.S.:
What about the duties to your client, regardless of the penalty?

I don't think your client would be substantially harmed. I doubt your statement would be admissible in the event your client were charged.
3.6.2008 8:49pm
GatoRat:
This case highlights a reason lawyers are held in such contempt by the general public.
3.6.2008 8:57pm
NotAllFirmsLoveWestlaw:
@Bob from Ohio

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.
3.6.2008 8:57pm
Edward A. Hoffman (mail):
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?
3.6.2008 8:59pm
Curt Fischer:
The comments on this post so far seem to be pretty dichotomous. Either the lawyers should have come forward and told everything, or they shouldn't have. But isn't there a middle ground?

What if lawyers were to have come forward and said this: "I have had protected communication with a client of mine revealing that Alton Logan is not guilty of this murder; however, due to the attorney-client privilege, I can say no more."

Would saying this constitute a breach of attorney client privilege? Could a court receiving this testimony compel the lawyers to testify further? Would a jury have found this limited testimony persuasive in and of itself?
3.6.2008 9:01pm
Malvolio:
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.
3.6.2008 9:04pm
Fub:
The CBS piece buried the fact this case is in Illinois down in the last graf.

But that fact does raise one minor question to consider. The Illinois State Bar Association does issue advisory opinions on ethics based on hypothetical fact patterns submitted by members.

Did the lawyers seek such an advisory opinion from the ISBA?

While an advisory opinion, if issued, would not be binding on the courts, the mere fact of seeking it would do at least two things:

1. It would give notice to every lawyer in the state that such an ethical conflict existed under current rules; and

2. Depending on the ISBA's response, it could serve in part to shift moral responsibility for the lawyers' silence from a personal responsibility to a responsibility of the ISBA, the legislature, or the courts.
3.6.2008 9:10pm
Armen (mail) (www):
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.
3.6.2008 9:11pm
Public_Defender (mail):
Cops arrest an innocent man. Prosecutors prosecute him. Both cops and prosecutors illegally ignore evidence of innocence. Witnesses testify falsely. Jurors fail to tell lies from the truth. And the conviction is the fault of two criminal defense lawyers who never participated in the case? Yeah, right.


I thought PD's were 'Officers of the Court', and charged with certain obligations to truth by that ?

I fulfill my duty as officer of the court by zealously and honestly fighting to protect my client's rights. I am not part of the prosecution team.


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.

Kind of. Many witnesses are more confident of what they say than they should be. If I represented Logan originally, I would have every duty to poke holes in a witness's testimony, even if I thought they were telling the truth. Because, hey, sometimes I get it wrong, too.

Maybe part of the real problem in this case is that Logan's lawyer's weren't sufficiently aggressive in attacking the prosecution's witnesses. (I'm merely speculating here.)


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.

My job is to give my client the benefit of the doubt and to lawfully protect his interests. A criminal trial is not a quest for truth. It is a test to determine if the State has proven guilt beyond a reasonable doubt with admissible evidence. I have sometimes done investigations that have turned up even worse evidence than the prosecutor had. But It's still my job to argue (where the facts permit it) that the State has not proven its case.

I have sometimes argued for legal decisions that would hurt other criminal defendants, but, because of some quirk, would help my client.

The legal arguments work both ways. After the initial appeal, actual innocence is not grounds for release absent some claim of legal error. Once, when I argued on appeal that my client was not guilty, a prosecutor responded by saying that defense attorneys only claim innocence when we don't have any real issues to argue. I am not joking. That prosecutor is now a felony trial judge.


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.

This is a good explanation of why we do what we do.

I also don't think the PDs' plan to re-evaluate their situation if Logan got the death penalty does not mean they planned on disclosing. They may have planned on going back to their client to try to convince him to talk.

Finally, I have disclosed client communications only twice. Both times they made what I judged to be credible threats to kill. But, as Professor Volokh pointed out, different rules apply to threats of future violence.
3.6.2008 9:15pm
Visitor Again:
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.
3.6.2008 9:18pm
Public_Defender (mail):

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.


This is an excellent point. Absent confidentiality, Wilson would not have confessed at all. Absent confidentiality, Logan would be sitting anonymously in prison with no hope.

The system only works when we all play our roles. The adversarial system ain't perfect, but it works better than any other system.

Wilson's lawyers did their job. As a result, an innocent man may be released. If the cops, prosecutors, witnesses, and jurors had done their jobs, Logan would not have had to serve any time.
3.6.2008 9:21pm
Edward A. Hoffman (mail):
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.
3.6.2008 9:21pm
Michelle C. Funk (mail):
Isn't the *real* problem here that a person was convicted on what may be reasonably presumed to be insufficient and/or false evidence? At the end of the day, these lawyers had no real control over the trial of Mr. Logan. I'm not a lawyer, but it seems like there are critical flaws in any argument that client confidentiality should be able to be breached in such circumstances:

(a) Without being able to try the confessor for the crime or violate his 5th amendment rights (correct me if I'm wrong) by having him testify, there is no way to establish whether the confession is in any way legitimate.

(b) A system in which it were legitimate to submit as evidence an anonymous tip that an anonymous person confessed to the crime would open the door for almost any conviction to be precluded.

(c) Guaranteeing immunity for the confessor would accomplish much the same thing, since then anyone could confess anything to their lawyer and not only protect someone else from conviction but ensure that he himself was never convicted.

If anyone can think of any other ways to finesse this point that would not result in a crippling precedent, I'd be interested to hear it. Otherwise, I'm convinced that the ethical burden lies with the persons responsible for convicting an innocent man, independent of the confession.
3.6.2008 9:26pm
whit:
"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?
3.6.2008 9:28pm
Mahan Atma (mail):
"I don't think your client would be substantially harmed. I doubt your statement would be admissible in the event your client were charged."


Even if the statement weren't admissible, the police and prosecutors would (if they were competent and diligent - big "if" in this case apparently) investigate your client for the crime, and obtain independent evidence of his guilt.

Second, anybody who thinks the prosecutor is simply going to let the suspect go because some attorney comes forward and says "I have secret information that someone else did the crime, and I cant tell you who" is dreaming.

Let's be clear: Wilson's attorneys would have to hand him over lock-stock-and-barrel to get anywhere, and even then Logan probably would have been lucky to go free.

The police and prosecutors dropped the ball on this. It's their fault this ethical dilemma was created in the first place.
3.6.2008 9:28pm
Mahan Atma (mail):
"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.
3.6.2008 9:30pm
whit:
"Isn't the *real* problem here that a person was convicted on what may be reasonably presumed to be insufficient and/or false evidence?"

no, it CAN'T be "reasonably" presumed. i have a big problem, with this assumption, and it's an issue that i've had problems with before.

despite all the petty lawyer games, trials are supposed to be a search for the truth. that process is imperfect, because memories, human beings in general, are imperfect, because coincidences happen, etc. etc. etc.

we accept that it's better that 10 guilty men go free than 1 innocent convicted but unless you are willing to change that to 10^n power guilty men go free, you CAN'T avoid wrongful (again, from a results analysis not process analysis angle) convictions. this is not a perfect world.

it is entirely possible that even given a GREAT defense attorney, and scrupulously honest prosecution, and an intellligent jury, that an innocent man gets convicted. in fact, it's nearly unavoidable.

i think people fail to be pragmatic here. the system can't always work to free the innocent because unless we are willing to either raise the standard to "beyond any doubt" and accept far more guilty people going free, it's always going ot be reality until we get some kind of 100% accurate truth serum, 100% coverage video surveillance, etc.

reality is that it is. any of us COULD be wrongly convicted, given a very unfortunate set of circumstances, of a crime we didn't do. that's why its incumbent that we have VERY good police, investigators and defense attorneys, but even given that, it has to happen.
3.6.2008 9:34pm
Cornellian (mail):
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.
3.6.2008 9:35pm
whit:
"Spend about two minutes checking out the facts of this case, please"

he said he was making an assumption, so i responded to his assumption.

i am not saying the evidence wasn't flimsy. i am saying that ASSUMING that it is , is wrong. i make no assumption either way. that's called 'waiting for evidence before drawing a conclusion'
3.6.2008 9:36pm
whit:
"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
3.6.2008 9:40pm
Mahan Atma (mail):
"that's why its incumbent that we have VERY good police, investigators and defense attorneys"


Well let me ask you this: If the police/prosecution failed to turn over to the defense evidence of a shotgun seized in another crime, by another suspect, that matched the gun used to kill the victim in Logan's case, would that be "good" in your estimation?
3.6.2008 9:40pm
Nathan_M (mail):

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.
3.6.2008 9:46pm
whit:
"Well let me ask you this: If the police/prosecution failed to turn over to the defense evidence of a shotgun seized in another crime, by another suspect, that matched the gun used to kill the victim in Logan's case, would that be "good" in your estimation?"

as far as i am concerned, the police/prosecution, failing to turn over ANY exculpatory evidence to the defense is simply wrong. so, no, it's not good.

fwiw, the job of the police is not to help the prosecution. it's to impartially gather evidence.

frequently during the course of investigations we uncover exculpatory evidence, or even evidence that 100% proves a suspect's innocence. that's our JOB.

a defense attorney cannot turn over evidence of his clients guilty (such as the confession to the attorney) to the prosecution, but we HAVE to turn over evidence of his innocence to the defense attorney.

and, at least in our cases, that's a good thing

imo, prosecutors often fall prey to the same problem that befalls stock traders and any other human being. once they buy into a theory of guilt, they get myopic. the better ones do this far less but it's a natural aspect of human psychology, to be biased once one "owns" a position. that's why the adversarial system is so crucial. and why we are so much better than france :)
3.6.2008 9:48pm
Edward A. Hoffman (mail):
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.
3.6.2008 9:48pm
Lou Wainwright (mail):
Non-lawyer, but I'd appreciate serious responses as I'm really surprised by some of the defenses in the comments. 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? Obviously it is easier to plan a defense when you know all the facts, even when one of them is that your client is guilty. But I'm sure in many cases, regardless, the client lies to his council and says he is innocent, and a defense goes forward.

What if the ethics rule were that lawyers were allowed to break confidentiality to prevent future crime, as it is now, but also to prevent gross miscarriage of justice? Clearly it would be a different system, but would it, on balance, be manifestly worse?

Also, to the 'why the public hates lawyers' point. According to the 'code of conduct' document Eugene linked to the lawyers could have broke confidentially to prevent 'a crime'. Incidentally, it doesn't even say a 'serious crime' or 'bodily injury' just 'a crime'. Yet, somehow, imprisoning someone for a crime they didn't commit, or even sentencing them to the death penalty, doesn't qualify? Even worse, the lawyers would have been allowed to break confidentially to collect their fee! Their FEE! Leading me to this hypothetical.

Murderer X confessed to his lawyer the details of the crime in sufficient depth to leave no doubt in the mind of the attorney that his client is guilty. None-the-less, the prosecution's case is weak, and the lawyer gets the case dismissed without prejudice. X now owes the lawyer $500k, but refuses to pay. The lawyer sues, and X declares bankruptcy to avoid the debt. However, the family of the victim is still looking for closure and has a $500k reward out for information that brings the killer to justice. The lawyer turns his client in and collects the reward. Is he subject to disbarment? Did he take an action that jeopardizes the heart of our legal system?
3.6.2008 9:48pm
Cheburashka (mail):
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?
3.6.2008 9:51pm
whit:
"What if the ethics rule were that lawyers were allowed to break confidentiality to prevent future crime, as it is now, but also to prevent gross miscarriage of justice? Clearly it would be a different system, but would it, on balance, be manifestly worse? "

you have to understand that the JOB of the defense attorney is not justice, it is not truth, and it is not proving his client innocent (whether or not he is). it's simply establishing reasonable doubt (once the case has gotten past the preliminary stuff)

our system couldn't work the way it does IF defense attorneys weren't 100% biased to their clients interests only.

i think it's much like democracy -it sucks, but it sucks less than any other system.

i just have the clear understanding that the role of the defense (and the burdens on him) are fundamentally different from witnesses and from prosecution.

basically, i agree with dershowitz. it's their job to get their client off, by whatever (legal means necessary). not help a search for truth, let alone justice.
3.6.2008 9:54pm
whit:
"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
3.6.2008 9:56pm
Curt Fischer:

Nathan_M: [...] 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.


Nathan_M, thanks very much for your response. It was very informative. I think I am now persuaded that i) it was ethical for the lawyers not to come forward, and ii) that the responsibility for this travesty of justice does not lie with them at all.
3.6.2008 9:57pm
Displaced Midwesterner (mail):
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.
3.6.2008 9:57pm
Public_Defender (mail):
Malvolio's point deserves repetition and bold:


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.


Attorney-client confidentiality saved Logan. Belatedly, yes. But it's better than sitting in prison forever.
3.6.2008 9:57pm
Armen (mail) (www):
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."
3.6.2008 9:57pm
Edward A. Hoffman (mail):
Cheburashka wrote:
It isn't against penal interest at the time it was made.
You're right that the confession would only be a statement against penal interest if Wilson could still have been prosecuted at the time, but there's no reason to doubt that he could have been. Your comment assumes two things that probably aren't true -- first, that Wilson made his confession shortly before he died; and second, that the statute of limitations for murder had expired before he confessed.

The only thing we know occurred 26 years after Logan's conviction is Wilson's death. The quote Eugene provides doesn't say when he confessed, but it suggests that the lawyers had to live with this burden for a long time and thus that the confession was made many years ago.

Additionally, most jurisdictions have no statute of limitations for murder.
3.6.2008 10:00pm
Erick:

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.
3.6.2008 10:02pm
Displaced Midwesterner (mail):
Edward A. Hoffman,

While you are right that the lawyer's statements would be allowed under the hearsay exception for statement against interest (the hearsay is the real killer's statement, which is against interest, and the killer himself is an unavailable witness because of the 5th amendment), in the end Cornellian is right that either way, the real killer could assert the attorney-client privilege and prevent the lawyer from testifying.
3.6.2008 10:03pm
Nathan_M (mail):
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.
3.6.2008 10:08pm
Skyler (mail) (www):
Notallfirms said:

Take a minute to think through the consequences of clients not being able to trust their lawyers to not rat them out.



Okay, then just what are those consequences? Let's see, a guilty man might have been punished and an innocent man may have been released. So far so good. What about future clients and defendants? Well, the ones who have committed crimes will not confess to their lawyers that they committed crimes. This is hardly revolutionary.

Let's look at the ethics of it all. If X goes to a lawyer about his taxes and tells him, "I haven't paid my taxes in ten years because I believe in some crack pot theory about flags with gold tassels and admiralty law" the lawyer is obliged to not reveal this information. This is reasonable. X has confessed a crime but didn't really know the magnitude or the legality of what he did and he is seeking help in dealing with the consequences of his actions.

But if X says, "I used a shotgun and killed a man in the course of a robbery" there is no doubt in any reasonable man's mind that this is a crime. It serves no one to keep it confidential when others are being still harmed by the act.

If there is no one else in jail for the crime, again there is no harm to others in keeping confidence. But the rules clearly say that if others are being harmed by keeping the confidence, then the lawyer is allowed to reveal the information. The only thing that might prevent someone from revealing the information under the rules is that it requires a crime or fraud to be committed and the interpretation is generally held that these circumstances do not constitute a crime or fraud. Legally, perhaps this is true. But not in reality.

Further, the rules also allow the lawyer to reveal anything and everything to defend himself. That is, if someone accused the lawyer of committing that crime instead of X, the lawyer is allowed to reveal the confidential information.

So, what the defenders of these lawyers are saying is that it's okay to bail a lawyer out by ratting on a client, but it's not okay to bail out an innocent bystander. Again, the legal system is constructed in favor of the lawyer.

I call BS. If the model rules do not allow a revelation in these circumstances, then the model rules need some serious amending.

As for me, I'd rat out the murderer in a heart beat to protect an innocent man if I knew that what information I had was correct and that it had a reasonable chance to prevent an injustice of that magnitude. Rules be damned. It's far better to be punished by a bunch of lackey lawyers than to have an innocent man spend his life in jail. There's something quite disturbing about people so willing and eager to pervert justice in the interest of serving it.

In the real world, I seriously doubt that such circumstances happen with such certainty.
3.6.2008 10:14pm
Henry Schaffer (mail):
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.
3.6.2008 10:14pm
Edward A. Hoffman (mail):
Displaced Midwesterner wrote:
While you are right that the lawyer's statements would be allowed under the hearsay exception for statement against interest (the hearsay is the real killer's statement, which is against interest, and the killer himself is an unavailable witness because of the 5th amendment), in the end Cornellian is right that either way, the real killer could assert the attorney-client privilege and prevent the lawyer from testifying.
That's what I said. It's not what Cornellian said.
3.6.2008 10:15pm
Elliot123 (mail):
"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?
3.6.2008 10:16pm
Armen (mail) (www):
As for me, I'd rat out the murderer in a heart beat to protect an innocent man if I knew that what information I had was correct and that it had a reasonable chance to prevent an injustice of that magnitude. Rules be damned.

So you're on the record as saying that (a) you're not going to take your oath seriously (b) you're not going to owe your clients the loyalty they are due, and (c) a minor thing about breaching confidentiality.

Need a malpractice lawyer?
3.6.2008 10:19pm
nyejm (mail) (www):

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.
3.6.2008 10:19pm
Elliot123 (mail):
"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."

ZZZZZZzzzzzzzzzzzzzz.......
3.6.2008 10:21pm
Skyler (mail) (www):
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.
3.6.2008 10:24pm
Nathan_M (mail):

Further, the rules also allow the lawyer to reveal anything and everything to defend himself. That is, if someone accused the lawyer of committing that crime instead of X, the lawyer is allowed to reveal the confidential information.

No. Lawyers can reveal confidential information to defend themselves against claims of professional negligence brought against them by their clients. In the situation you gave the lawyer would have a duty to keep the information confidential.
3.6.2008 10:25pm
Public_Defender (mail):
"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.
3.6.2008 10:26pm
Bruce Hayden (mail) (www):
One problem with one of the two attorneys telling the prosecutor that the defendant was innocent because they knew who the guilty party was, is that the prosecution knows, or can likely find out, who the PDs were representing at that time. Since Wilson was found with the shotgun, it would have likely been fairly obvious who the real perp was. Even if he hadn't been, the prosecutors or police might have been able to figure it out by process of elimination.

While attorney/client confidentiality may survive death of the client, the two attorneys have in their favor here that they are not going to prejudice their now deceased client by revealing this confidentiality. He is already dead, and unless the state wants to lock up his dead body, there is nothing that can be done to him now.
in
3.6.2008 10:32pm
Michael B (mail):
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.
3.6.2008 10:32pm
NickM (mail) (www):
If you think that rule was bad, consider that until the end of 2003, California law on the duty of confidentiality prohibited attorneys from revealing that their client had threatened to kill someone.

Governor Gray Davis vetoed bills to change that, but Governor Schwarzenegger signed a bill into law bringing California in line with the rest of the country.

Nick
3.6.2008 10:32pm
Skyler (mail) (www):

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.
3.6.2008 10:34pm
Reinhold (mail):
Well, you can reveal confidential information for a crime committed in the past to prevent future harm (substantial bodily harm or death) or financial harm. I would think 26 years in jail would be financial harm, for which the lawyers should have been able to reveal the confidential information.
3.6.2008 10:37pm
Cheburashka (mail):
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?
3.6.2008 10:40pm
Bruce Hayden (mail) (www):
Some ethics rules have a lot of shades of gray. This one doesn't, and it doesn't for just this reason - In cases like this, the exceptions would ultimately eat the rule.

I am not surprised that many of the non-lawyers don't understand this rule and its application here. But what amazes me is the number of licensed attorneys that seem to be trying to find a way around it here. Ask yourself, how many of the other ethical rules are you willing to skate around if their result is somehow inconvenient? (Ok, I am being a little extreme here - I suspect that most, if not all, of the anti argument by attorneys is just that, argument, and that they would do the ethical thing if faced with the same dilemma that these attorneys faced).
3.6.2008 10:41pm
Bruce Hayden (mail) (www):
"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.
3.6.2008 10:44pm
Cheburashka (mail):

No. Lawyers can reveal confidential information to defend themselves against claims of professional negligence brought against them by their clients. In the situation you gave the lawyer would have a duty to keep the information confidential.


Or as necessary in an action to collect on an unpaid legal bill.


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.


But we should also be able to have an intelligent discussion about a topic without be swamped by arguments that, e.g., the business-frauds exception applies. (If it were New York, do the advocates of this interpretation think counsel should have made a noisy withdrawal?) Or who think an attorney can tell the prosecutor that an unnamed client has confessed without the client's permission (thereby making use of information obtained through the attorney-client relationship). Or who think that an attorney can do anything in such a case, where a failure of the trial against the original defendant based on the admitted or unadmitted confession of a perhaps unnamed person will result in a resumption of the criminal investigation against the confessing client!

There are legally interesting topics here. It would be nice to be able to talk about them.
3.6.2008 10:45pm
A. Zarkov (mail):
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?
3.6.2008 10:50pm
whit:
thanks bruce.
3.6.2008 10:54pm
PostNoBill:
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.
3.6.2008 10:55pm
Reinhold (mail):
A. Zarkov, why would you want your client to tell you if they murdered someone? As a defense lawyer, I wouldn't even want to know that. So if a client voluntarily gives that information, and it happens to fall within an exception (e.g., causes future harm, which execution or jail time would), then your revealing it wouldn't necessarily cause clients to "hold back" any useful information. My understanding, though, is that lawyers aren't required to reveal confidential information even if it falls within one of the exceptions. So you still wouldn't have to reveal it if you didn't want to, as you say, "rat out your client."
3.6.2008 10:56pm
Elliot123 (mail):
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?
3.6.2008 10:57pm
Cheburashka (mail):

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.


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

And what difference would it have made, when the client's new lawyer could easily stop the old lawyers by testifying with a simple motion to intervene and preclude on privilege grounds? In fact, my recollection is that in this circumstance you can even get a prior restraint TRO.

There's no ethical dillemma here, those two attorneys did what they were required to do.
3.6.2008 10:58pm
PostNoBill:
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.
3.6.2008 11:00pm
Cheburashka (mail):

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?


It doesn't quite work that way... You can disclose information about the representation as required in the action to collect the fee. Would disclosing the content of the communication (as opposed to the fact of the communication) be required in such an action? Perhaps in particular circumstances, if the client denied the fact of the communication and said 'why would i talk to a lawyer? about what?'

So the answer is, yes, that's the rule, but it doesn't work as you suggested.
3.6.2008 11:01pm
Cheburashka (mail):
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.
3.6.2008 11:02pm
PostNoBill:
Cheburashka,

I have no idea where you got the idea that a lawyer offering exculpatory evidence in a criminal case not involving his client, whether privileged or not, could be barred from testifying by any TRO, intervention, or other ethical rule. That is simply not the law.

Whether my kids go to college or not is irrelevant, and what happens to my client is irrelevant. Maintenance of the attorney-client privilege takes a back seat to an innocent person being sentenced to a life behind bars.

Cheburashka, tell me this. Is your child going to college more important to you than an innocent person's life?
3.6.2008 11:05pm
Cheburashka (mail):
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.
3.6.2008 11:19pm
Harry Eagar (mail):
'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.

I'm thrilled that Professor Volokh is troubled. He might be extra troubled by reading over these hundred posts and contemplating how feeble the defenses of this conduct have been.

As somw genius named Dan Stanford (whom I have not been able to track down) said, "Experience is what you get when you don't get what you want."

Most people would then put their minds to figuring how not to repeat the experience.
3.6.2008 11:19pm
A. Zarkov (mail):
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.
3.6.2008 11:22pm
Cheburashka (mail):

Most people would then put their minds to figuring how not to repeat the experience.


Real attorneys know how to solve this problem. Actually, as I have been trying to point out, the hypothetical is obvious, and the attorneys had no choice. There are much more difficult, and fascinating, and solveable dilemmas of similar nature in the corporate context.

But of course I can't suggest any, because they're privileged.
3.6.2008 11:24pm
TerrencePhilip:
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.
3.6.2008 11:28pm
A. Zarkov (mail):
Reinhold:

“A. Zarkov, why would you want your client to tell you if they murdered someone?”


I want my client to tell me everything that might possibly aid in his representation. If I knew he murdered someone I might not want him to testify. How do I run a case without getting all the facts that I might need to insure my client gets a fair trial?
3.6.2008 11:30pm
Edward A. Hoffman (mail):
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.
3.6.2008 11:31pm
PostNoBill:
Cheburashka,

I regret that you do not believe me when I say that my ability to pay for my children to go to college is less important to me than the life of an innocent man. I can assure you, in total seriousness, that my ability to earn money as an attorney is substantially less important to me than the life of an innocent man.

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.
3.6.2008 11:32pm
BruceM (mail) (www):
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.
3.6.2008 11:36pm
Owen (mail):
Edward A. Hoffman,

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.

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.

I shudder that an attorney, faced with such a situation, would rely exclusively on distant memories of their legal profession course in lieu of a state bar ethics board decision.
3.6.2008 11:36pm
PostNoBill:
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.
3.6.2008 11:39pm
PostNoBill:
Owen,

Nice!
3.6.2008 11:42pm
Edward A. Hoffman (mail):
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.
3.6.2008 11:44pm
Soronel Haetir (mail):

Prosecutors owing a position is one reason I would love to see them bundled with PDs and randomly assigned to cases, prosecuting some defending others. Much harder to get that sort of myopia when you have to play both roles at the same time in difference cases.
3.6.2008 11:48pm
A. Zarkov (mail):
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.
3.6.2008 11:49pm
Armen (mail) (www):
Owen, that's VERY DISINGENUOUS and you know it. The Mass Rule states in FULL: "(1) to prevent the commission of a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm, or in substantial injury to the financial interests or property of another, or to prevent the wrongful execution or incarceration of another (emphasis added).

Did we need to consult the ethics board to figure that one out? The rule explicitly permits it.
3.6.2008 11:49pm
PostNoBill:
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.
3.6.2008 11:50pm
Rod (mail):
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. He said, "If lawyers violate this canon then future clients will hold back information and the whole justice system suffers."

How exactly does the whole justice system suffer? Assume that a client doesn't trust his attorney and fails to mention all of the details of the events surrounding the purported crime. He then gets tripped-up by the prosecution and convicted of the crime he actually commited. However, if he had fully trusted his attorney, then the attorney would have prevented the gaffe and the guilty man would have escaped conviction.

This isn't a bug, it's a feature. Every defense attorney I have ever talked to in my life wants to raise the bar on what it takes to convict a person. However, they are so immersed in the "justice system" that they fail to see that most of the public consider convicting more guilty people an increase in justice.

I suspect I will catch flak for the naivete of this post. Take off your lawyer hat and put on your philospher's hat. Our goal for improving the justice system is to raise the bar as high as possible for what it takes to convict an innocent person. Likewise, anything that makes it easier to convict a guilty person is also an improvement. These two goals are usually in opposition, but not in the case of easily breaching attorney-client privilege.

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.
3.6.2008 11:50pm
Bad (mail) (www):
<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?
3.6.2008 11:51pm
PostNoBill:
A. Zarkov,

"Conduct" as used in Rule 8.4(d) clearly does not reference only affirmative acts but refers to both action and inaction. I cannot discern how you, with a straight face, could possibly claim it applies only to affirmative acts. I will not waste time digging up bar disciplinary cases where a lawyer's inaction was cited as conduct prejudicial to the administration of justice.
3.6.2008 11:53pm
PostNoBill:
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.
3.6.2008 11:56pm
Armen (mail) (www):
If you hold a privilege, the only protection offered is that the evidence cannot be used against you.

Are you a troll? And I ask that in all seriousness because you're making pretty pathetic arguments without any support. Soooo a third-party can't assert the privilege? YEAAAAAAAAAAAAAAAAAH.
3.6.2008 11:57pm
Bad (mail) (www):
"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.
3.6.2008 11:57pm
Nathan_M (mail):
PostNoBill, I know it was a boring class, but you desperately need to read over your Evidence notes again.
3.6.2008 11:58pm
Bad (mail) (www):
"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.
3.7.2008 12:00am
Owen (mail):
Armen,

I wasn't trying to be disingenuous. I'll certainly grant that the Massachusetts rule has been explicitly amended to permit those disclosures, but that doesn't negate my point -- different states interpret the rules differently, and many have even amended the rules to reflect their view of legal ethics.

As an attorney, I would NEVER trust my own judgment exclusively in these situations. Unless there was recent and clear law from the ethics board on this precise issue, I would request an opinion if only to be certain. Anything short of that would be hubris.
3.7.2008 12:00am
Armen (mail) (www):
And Professional Responsibility. And let's throw in Con Law. Oh and that lawyer hat of yours...
3.7.2008 12:00am
Michelle C. Funk (mail):

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.

I would be extremely interested to learn about any Mass. cases in which this rule was invoked - sincerely. Also, is Mass. the only state that handles this topic explicitly? This could be a very compelling topic for future scholarship...
3.7.2008 12:00am
PostNoBill:
Armen,

Show me the rule of evidence that could be relied upon by a non-party to keep a willing person from testifying.
3.7.2008 12:01am
Edward A. Hoffman (mail):
Owen:

That may be the rule in Massachusetts, but I'll bet few if any other states permit such disclosure. California (where I practice) certainly doesn't. Here is the rule in this state:
Rule 3-100. Confidential Information of a Client

(A) A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client, or as provided in paragraph (B) of this rule.

(B) A member may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the member reasonably believes the disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.

(C) Before revealing confidential information to prevent a criminal act as provided in paragraph (B), a member shall, if reasonable under the circumstances:

(1) make a good faith effort to persuade the client: (i) not to commit or to continue the criminal act or (ii) to pursue a course of conduct that will prevent the threatened death or substantial bodily harm; or do both (i) and (ii); and

(2) inform the client, at an appropriate time, of the member's ability or decision to reveal information as provided in paragraph (B).

(D) In revealing confidential information as provided in paragraph (B), the member's disclosure must be no more than is necessary to prevent the criminal act, given the information known to the member at the time of the disclosure.

(E) A member who does not reveal information permitted by paragraph (B) does not violate this rule.
Do you seriously think a lawyer would need to consult with an ethics board to understand what this rule means?

I don't claim to know all the variations each of the 50 states has implemented, but I do know that a change like this one would be covered in the ongoing legal education courses I described. Massachusetts lawyers know what Massachusetts permits. That a California lawyer didn't does not imply stupidity.
3.7.2008 12:03am
Elliot123 (mail):
"And your kids going to college? And your client's kids?"

And the kids of the innocent guy in prison?
3.7.2008 12:03am
Jagermeister:
We have gross misconduct by police and prosecutors left and right
To say nothing of the gross misconduct of the criminals.

In all seriousness, if you see the legal system as "an ALTERNATIVE to barbarity, frontier justice, and all sorts of other things," you must realize that those alternatives are only held at bay by the perception of the public that the legal system also functions as a judicial system - i.e., it dispenses justice, If the public looses faith that the system delivers justice it will resort to taking justice into its own hands. In order to keep the public faith you need to demonstrate why attorney-client privilege is good for the public as a whole, and not just for attorneys or their clients (most of whom are widely despised by the public - at least until the despiser himself needs a lawyer).
3.7.2008 12:06am
Armen (mail) (www):
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.
3.7.2008 12:08am
Edward A. Hoffman (mail):
PostNoBill wrote:
If you hold a privilege, the only protection offered is that the evidence cannot be used against you.
You can't be serious. Either that or you can't be a lawyer.

The attorney-client privilege bars even disclosure of communication between lawyers and clients, not just its use against the client. If I am asked to reveal confidential communications with one of my clients -- whether at trial, in deposition, at a bar proceeding or what have you -- it is my duty to assert the privilege on my client's behalf unless the client has waived it. But even if I were to violate that duty, my client would still have the same right to assert the privilege as he would have if I'd kept my mouth shut. That's what it means to say that the privilege belongs to the client and not to the lawyer.
3.7.2008 12:09am
A. Zarkov (mail):
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.
3.7.2008 12:09am
LiveCams (mail) (www):
3.7.2008 12:10am
PostNoBill:
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.
3.7.2008 12:10am
PostNoBill:
A. Zarkov,

Ask members of the general public these questions:

If you murdered someone and you told your lawyer, would you believe your lawyer did the right thing if he disclosed that information to prevent an innocent person from being executed or going to jail for the rest of his life?

If you had been sentenced to death or life imprisonment for a crime you did not commit, but someone (including an attorney who learned the information through the attorney-client relationship) had evidence that could free you, would you want that person to disclose the evidence?

Be honest. What do you think the answers would be?
3.7.2008 12:13am
LawTalkingGuy:
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.
3.7.2008 12:18am
PostNoBill:
Armen,

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. 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.
3.7.2008 12:18am
Mahan Atma (mail):
"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.
3.7.2008 12:19am
Owen (mail):
Edward A. Hoffman,

Do you seriously think a lawyer would need to consult with an ethics board to understand what this rule means?

We debated this in my legal ethics course. Does "substantial bodily harm" encompass a concept board enough to include incarceration in a maximum security state prison, where an inmate is routinely subjected to rape and assorted violence? Unless a California court had already ruled on the matter, I'd consult the ethics board. Why wouldn't you?
3.7.2008 12:20am
PostNoBill:
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?
3.7.2008 12:21am
Paul Milligan (mail) (www):
"Tell me where the canon qualifies privilege"

That sums it all up. A system, a 'code' so screwed up that it defies all morality, all justice, all ethics, while calling itself 'an ethical code'.

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' ?

These two lawyers in question sat in the audience at the second trial, the Logan trial, knowing that he was innocent, and watched him be tried for his life. They watched him be sentenced to life in prison for something they knew he did not do, and did NOTHING, said NOTHING.

I don't give a FLYING SH*T what some book from the ABA says, this is WRONG, it is IMMORAL, and it is UNETHICAL. Period.

Any system or 'code' that justifies it is wrong, perverse, unethical, unjust, immoral, and disgusting, as well as being totally detached from all reality and common sense.
3.7.2008 12:22am
Elliot123 (mail):
I find it fascinating that legal ethics is a function of which state one is in.
3.7.2008 12:22am
PostNoBill:
Mahan Atma,

You wrote:


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.


Under the unusual facts here, you are correct.
3.7.2008 12:23am
Armen (mail) (www):

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.
3.7.2008 12:24am
Armen (mail) (www):
I find it fascinating that legal ethics is a function of which state one is in.

You must simply be astonished that crime is a function of which state one is in too.
3.7.2008 12:26am
TerrencePhilip:
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.
3.7.2008 12:26am
Mahan Atma (mail):
"Under the unusual facts here, you are correct."


So tell me, do you inform your clients of this willingess to betray them when they hire you? If not, aren't you basically defrauding them?

After all, they hire you in reliance on you holding yourself out as a lawyer who adheres to his legal duties, including your duties of loyalty and confidentiality. Since you know in advance that you are not in fact willing to do so, it seems to me they deserve to know this before they retain you.
3.7.2008 12:28am
Edward A. Hoffman (mail):
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.
3.7.2008 12:31am
Mahan Atma (mail):
"I in particular appreciate Whit's comments as someone who deals with the criminal justice system far more than most of us do"


Speak for yourself.
3.7.2008 12:31am
PostNoBill:
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?
3.7.2008 12:34am
A. Zarkov (mail):
Once an attorney decides that it’s ok to violate privilege (outside the exceptions), then where does it stop? Suppose the client happens to tell his attorney that he’s a spy for a hostile foreign power. Do he attorney then call the FBI and turn him in? After all the FBI can use that information to roll up a cell and save lives.
3.7.2008 12:36am
Elliot123 (mail):
"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.
3.7.2008 12:36am
PostNoBill:
Mahan Atma,

I don't represent murderers.
3.7.2008 12:36am
Displaced Midwesterner (mail):
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.
3.7.2008 12:40am
PostNoBill:
A. Zarkov,

Let's say a man walks into your office in Chicago and says this: "I've planted a nuclear bomb in New York on the top of the Empire State Building, that part that they built to dock dirigibles that is no longer used. I expect to be arrested after it goes off. I'd like to retain you."

What do you do?
3.7.2008 12:40am
A. Zarkov (mail):
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.
3.7.2008 12:40am
Mahan Atma (mail):
"I don't represent murderers."



Really? How do you know? You'd be amazed what kinds of crap your average client can pull.

Besides, if you're willing to betray your client in this scenario, I bet I can think of plenty of other situations that would present just as much problem. Surely, you couldn't anticipate all of them.

Do you give some kind of blanket statement, like: "Warning, if you ever do something that I find extremely objectionable from a moral standpoint, I'm going to violate my duties of loyalty to you"?
3.7.2008 12:41am
Edward A. Hoffman (mail):
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.)
3.7.2008 12:43am
Mahan Atma (mail):
"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."


No, it isn't. Some of us actually believe that not betraying your client is the moral choice, regardless of the Rules.
3.7.2008 12:44am
TerrencePhilip:
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!
3.7.2008 12:46am
A. Zarkov (mail):
Let's say a man walks into your office in Chicago and says this: "I've planted a nuclear bomb in New York on the top of the Empire State Building, that part that they built to dock dirigibles that is no longer used. I expect to be arrested after it goes off. "I'd like to retain you."

I won't take him as a client. This involves two crimes. The past crime of planting the bomb, and the future crime of the damage it will do. I have no duty to protect the information regarding a future crime.
3.7.2008 12:46am
PostNoBill:
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.
3.7.2008 12:46am
PostNoBill:
A. Zarkov,

Do you reveal the information to the authorities? I think it's hard to say that a "future crime" is at stake in the hypothetical. The client has already done everything he's going to do.
3.7.2008 12:47am
PostNoBill:
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?
3.7.2008 12:49am
Nathan_M (mail):

Assume that a client doesn't trust his attorney and fails to mention all of the details of the events surrounding the purported crime. He then gets tripped-up by the prosecution and convicted of the crime he actually commited. However, if he had fully trusted his attorney, then the attorney would have prevented the gaffe and the guilty man would have escaped conviction.
[...]
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.

I was writing a reply to this, but it kept getting longer and longer so I'll try to just hit the high points.

Basically, even an innocent client has to tell me a lot of potentially incriminating details for me to prepare to defend her. It's not even about preparing her to testify, it's just understanding what happened, and what the police reports leave out or get wrong.

A lot of clients won't do this truthfully as it is, when I can assure them I will never repeat what they say to anyone, and it won't ever be used against them. (You'd be amazed how many clients will give a statement to the police, and then deny having done so until there's a copy of it in front of them.) If I had to qualify this by saying I might reveal the information under certain circumstances, it would make them even less likely to speak truthfully.

You might think clients would understand the rule, and it wouldn't inhibit them, but I assure you that is not the case. For exampole, look at PostNoBill's comments here. He seems like an intelligent person who has done some research, and he no idea how privilege works.

If clients start hearing stories about defence lawyers giving evidence to prosecutors or the police, it stop a lot of them from confiding in their lawyers. They won't understand the nuanced rule. And that would mean more people would be convicted, whether they're guilty or not.
3.7.2008 12:49am
Edward A. Hoffman (mail):
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.
3.7.2008 12:52am
Mahan Atma (mail):
"Your comment assumes that the "duty of loyalty" the most important duty a lawyer owes, trumping all other duties."


I've made no such assumption. Tell me what other duty set forth in the Model Rules would compromise the duties of confidentiality and loyalty in the instant hypo, for example?

Don't you think your client is entitled to trust that you're going to follow the Model Rules, at the very least, regardless of how they rank the various duties?

If you're not (and you've already stated you're willingess not to), shouldn't you tell this to your clients up front?
3.7.2008 12:53am
PostNoBill:
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.
3.7.2008 12:53am
PostNoBill:
Mahan Atma,

What is this, law school? Who said anything about the Model Rules? But if that's where you want to go, Rule 3.3 provides a lot of fodder for hypotheticals where a lawyer must act disloyally.
3.7.2008 12:57am
Paul Milligan (mail) (www):
"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.
3.7.2008 12:57am
Mahan Atma (mail):
"Primarily the guilty are hurt by a lack of trust in their attorney. How would it harm an innocent man?"



As a criminal defense attorney, it's not my job to decide whether the client is "guilty". Every other part of the system is designed to do that - the jury, the prosecutor, even the judge. One part of the system has to start with the assumption that the client is innocent. Otherwise, the rule of "guilty until proven innocent" is meaningless.

Stop and look at how few people in this thread have questioned whether Wilson is actually guilty of the crime, as the hypo here is assuming. Haven't you all ever heard of an innocent person confessing to a crime?
3.7.2008 12:58am
Mahan Atma (mail):
Otherwise, the rule of "guilty until proven innocent" is meaningless.


Ummm.... reverse that, obviously... :/
3.7.2008 12:58am
PostNoBill:
Edward A. Hoffman,

Given the fact that at least one jurisdiction has rewritten its ethics rules to provide an exception for this exact case, why would it be horrendously improper for a lawyer in another jurisdiction to assert that the rule Massachusetts adopted by amendment is nontheless implicitly mandated by Rule 8.4?
3.7.2008 1:00am
Nathan_M (mail):

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.
3.7.2008 1:00am
Mahan Atma (mail):
"Who said anything about the Model Rules?"



Um. OK, how about the state laws governing your duties in whatever state you practice?

Don't you think your clients are entitled to rely on you to follow them? If not, shouldn't you inform them of that up front?
3.7.2008 1:01am
Edward A. Hoffman (mail):
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.
3.7.2008 1:04am
PostNoBill:
Mahan Atma,

Tell me whether you agree that Rule 3.3 often requires one to act disloyally.

And frankly, I don't have to tell my clients when I would rat them out because I don't do criminal defense work. It's a choice I made early in my career because I realized what a soul-destroying experience that can be. I think the moral-suppressive effects of criminal defense work are on display, to some degree, in this thread.

And I'll even say this. If I'd committed a crime or was accused of a crime, I'd much rather have one of the criminal defense jockeys in this threat as my lawyer than someone who has the opinions that I do. But providing the best possible defense for the accused is not the only consideration in extremely unusual situations.
3.7.2008 1:10am
Displaced Midwesterner (mail):
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.
3.7.2008 1:12am
PostNoBill:
Edward A. Hoffman,

I used the word ordinarily for a reason. There are some circumstances where it is acceptable for a Court to refuse to admit exculpatory evidence. 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.

I'd also caution everyone who is making admissibility arguments that this is very, very likely one of those you-show-me-the-judge-I'll-show-you-the-law situations. In my state, I can think of several judges who would likely agree with me and several who would likely agree with the Hoffman-Armen-etc. group. This is such an unusual situation that reliance on existing precedent as outcome determinative is just plain dangerous. A court considering this issue would, in all likelihood, be making new law in practically every jurisdiction. All bets are off in that scenario.
3.7.2008 1:15am
barts185 (mail):

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.
3.7.2008 1:21am
Edward A. Hoffman (mail):
PostNoBill wrote:
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.
I can. The privilege against self-incrimination protects against a specific type of harm and does not apply where the risk of that harm is no longer present. The attorney-client privilege protects a given category of communications, regardless of whether or how it might harm the holder. You consistently fail to grasp this point, which is why I am skeptical about your claim to be a lawyer.

Tell me -- do you think the Constitution requires courts to admit otherwise inadmissible hearsay when it is offered by defense counsel in a criminal case? If not, why is that situation different from this one? Surely admitting hearsay isn't going to harm the speaker's interests any more than (or even as much as) admitting confidential attorney-client communication.
3.7.2008 1:24am
bob (www):
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.
3.7.2008 1:30am
NotAllFirmsLoveWestlaw:
@barts185

Careful up there on that high horse. I'm sure you've never made a hard decision in your life that turned out to be wrong. Or maybe you have, and that's why you're projecting your regret and guilt on all those around you?
3.7.2008 1:31am
Nathan_M (mail):

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.
3.7.2008 1:31am
whit:
"I find it fascinating that legal ethics is a function of which state one is in."

sure. but crim law is the same way. in hawaii, when i was there the age of consent was 14. had a woman complain that two guys had (consensual sex) with her 14 yr old daughter. they were in their 40's. TOTALLY legal. i told her it wasn't a police matter.

otoh, the exact same thing would get you serious prison time in other states. it's a totally legal act in one state (or at least it was. i heard they changed the age but haven't checked) and a heinous crime in the other.

is that arbitrary? sure.

welcome to the law.
3.7.2008 1:32am
PostNoBill:
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.
3.7.2008 1:33am
Jay:
PostNoBill,
I am curious--what sort of law do you practice that you find so ethically pure in comparison to criminal defense work?
3.7.2008 1:37am
Edward A. Hoffman (mail):
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.
3.7.2008 1:38am
PostNoBill:
Nathan_M,

I'm not claiming that the attorney-client privilege and the Fifth Amendment privilege are identical. I'm merely saying that in this situation, a court could certainly choose to treat them the same, i.e., no legal jeopardy, the evidence comes in. That's the essence of common law, arguing why things should or shouldn't be similar to an analogous situation.

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.
3.7.2008 1:38am
PostNoBill:
Jay,

I typically handle defense-side civil litigation.
3.7.2008 1:41am
A. Zarkov (mail):
PostNoBill:

“And I'll even say this. If I'd committed a crime or was accused of a crime, I'd much rather have one of the criminal defense jockeys in this threat as my lawyer than someone who has the opinions that I do.”

Bingo. You and just about everyone else. That’s why we have such rules. Once you start to make exceptions to an important principle, the exceptions get more and more creative and pretty soon the whole principle gets compromised. If you want to have an adversarial system, then you need rules like these. The more you compromise the attorney-client relationship, the more the lawyer becomes an agent of the state in the mind of the client. Clients already don’t trust their lawyers. You want to make worse.
3.7.2008 1:43am
George Oscar Bluth II:
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.
3.7.2008 1:44am
PostNoBill:
A. Zarkov,

Bob has pretty convincingly argued, in his 1:30am post, why your argument on this point is pretty weak. Like Bob, I don't see the system collapsing if, in these unusual situations, lawyers breach privilege.

My point was that everybody wants the best defense possible when their ass is on the line. That doesn't mean it's best for society for that to happen in every single case. Again, as pointed out by Bob, there are already exceptions. Massachusetts has not turned into the U.S.S.R.

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.
3.7.2008 1:48am
Michael B (mail):
"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.
3.7.2008 1:50am
whit:
"Prosecutors owing a position is one reason I would love to see them bundled with PDs and randomly assigned to cases, prosecuting some defending others. Much harder to get that sort of myopia when you have to play both roles at the same time in difference cases."

to some extent, but this psychological tendency is present in ALL people, including defense attorneys too. assuming they are people :l

but i do agree that prosecutors tend to get somewhat of a skewed perspective. when you are a hammer, everything looking like a nail...

essentially, it's what psychologists refer to as "confirmation bias" although it's kind of "endowment effect" as well.

we've all suffered it.

the most egregious example i've seen in law recently were the posters at feministing.com refusing to come to grips that the duke boys were not just "not guilty" but obviously innocent. i saw this develop over the course of months (i thought they were probably innocent from the beginnign, and it only got stronger. the case just smelled. ).

seriously, the entire website (and many others) was like a psychological experiment gone amuck. there was simply no amount of evidence that would make them accept.

this goes way back. think copernican revolution
3.7.2008 1:54am
Edward A. Hoffman (mail):
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.
3.7.2008 1:54am
A. Zarkov (mail):
I understand completely why so many people are terribly uncomfortable with the idea that a lawyer should honor the privilege of communications when it means an innocent person could get punished. We all loathe the idea of punishing the innocent, and that’s why we have so many protections even though most accused people are in fact guilty. Indeed my first response to this problem was to rat out the client to save an innocent person. But after thinking it through carefully, I changed my mind. And it is a matter of conscience. In my opinion one of the worst things a person can do in this life is to violate a trust. We can’t have a civilization with some degree of trust. Look at what happens when people don’t trust their bank, or their money. Chaos. When someone tells me things because I have induced him to trust me, I must keep that trust even though it hurts. This is really the basis of my position, and not what’s written in the books.
3.7.2008 2:06am
Nathan_M (mail):

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.
3.7.2008 2:09am
Bulgaroktonos (mail):
I don't have much to add on the nuances of the Model Rules or whether or not the lawyers in this case made the right ethical call, but I think it's important that we understand that this is not an easy position to be in. This is not an easy decision to make, as evidenced by the fact that we've got several hours of discussion on it just in this thread.

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. These lawyers did everything they could, in what they understood as their the ethical limitations, to see that justice was done. I also assume it's fair to say that they wish they could have done more and were probably tormented by the knowledge of what happened. It's important to remember that they suffered too. It might not be time in prison, but I'm sure it was rough. I wouldn't wish that on anyone.

Maybe the rules are wrong and should be changed, but that discussion is not advanced one bit by assuming that these lawyers were bad people or that this is a clear issue. It's not.
3.7.2008 2:21am
A. Zarkov (mail):
“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.
3.7.2008 2:27am
PostNoBill:
Bulgaroktonos,

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.
3.7.2008 2:33am
PostNoBill:
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.
3.7.2008 2:41am
Bulgaroktonos (mail):
PostNoBill,

The fact that a large number of other people disagree with you means that it's not clear. You can(and have) denounce everyone who reaches a different conclusion as without conscience, but they've got as many good reasons for thinking the way they do as you do for think the way you do. In circumstances like this, it's best to trying to find the best solution in a way that recognizes that these are difficult issues and that no particular approach to them is completely wrong. Reducing the issue to stark generalities(my career vs. his life) obscures the issue. Further, we need to remember that because these issues are difficult, the individuals who are actually called upon to make them struggle with them. Kunz and Conventry are not conscienceless monsters; they are people in a bad situation doing the best they can. Anyone who has the courage to try to muddle through a situation like this deserves our sympathy. At least, that's what my conscience tells me.
3.7.2008 2:46am
David M. Nieporent (www):
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.
3.7.2008 3:34am
David M. Nieporent (www):
Jay,

I typically handle defense-side civil litigation.
And do you disclose to your clients that if you think it's important to reveal something they tell you, that you'll do so regardless of what the Rules of Professional Conduct say?
3.7.2008 3:43am
Skyler (mail) (www):
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.
3.7.2008 5:23am
Public_Defender (mail):

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

I have an all-too-long list of cases in which I strongly believe that my clients are serving prison terms they do not deserve. I fought and lost those battles.

I hate to say it, but Logan is just another guy who got screwed. If lawyers violated legal ethics every time they thought doing so would help avoid getting someone screwed, the system would fall apart.
3.7.2008 6:17am
Mary Katherine Day-Petrano (mail):
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.
3.7.2008 6:46am
Mary Katherine Day-Petrano (mail):
Regarding Rule 8.4(d), unless the ADA subjects that rule to federal preemption as well for failure to provide greater or eaual protection to the ADA's Title II requirements, it would seem disability discrimination in violation of Title II of the ADA would prove a Rule 8.4(d) violation.
3.7.2008 6:51am
Zieggenfus (mail):
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.
3.7.2008 7:00am
Richard Aubrey (mail):
Since the rules mandate the action these two lawyers took--and may they hav maxed out their Ambien 'scrips--is not The System required to make the victims whole?
It was the system that put this poor guy in jail for a quarter century, and, given the discussions above, knows it has and will again commit such monstrosities.
Given that it might cost lawyers a couple of bucks, it would seem to be an impossible dream.
But, for mercy's sake, if you know it's going to happen because of rules of which you approve, is walking away the moral thing to do? (Aubrey dope-slaps self.) Forget moral. I mean, isn't there a better kind of PR for the attorneys' field than saying "tough shit, buddy."
3.7.2008 7:51am
Russ (mail):
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.
3.7.2008 7:56am
Zieggenfus (mail):
A follow up to my previous question.

As I understand it, PD's are assigned multiple cases. What would be expected if our unfortunate PD learned such information from one of his clients about another?

At what point does process get overridden by the principle they're designed to implement?
3.7.2008 8:10am
Philistine (mail):

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....
3.7.2008 8:35am
PostNoBill:
David M. Nieporent,

I cannot see the issue arising in my practice. Do you disclose to your clients that you would stand idly by and let them go to prison for something they did not do if ethics rules required it?
3.7.2008 8:51am
Platonisto:
(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.
3.7.2008 9:34am
rarango (mail):
I do understand the ethical issue raised; but at some point I would submit invoking an "ethical dilemma" becomes a front for what ultimately is a lack of personal moral courage: It seems to me that hiding behind what is termed an "ethical dilemma" is simply a poor excuse for failing to act in the face of a larger moral issue--in short, moral cowardice. YYMV, of course.
3.7.2008 9:37am
Zieggenfus (mail):
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.
3.7.2008 9:47am
Wes:
I'm not going to add to the right and wrong argument, but I'll point out that in many respects the legality of an action is not equivalent to the moral nature of the action.

As to Attorney-Client Priviledge: does it even apply at all here? The priviledge only applies to communication where the client is seeking legal advice. As PD's, they were assigned presumably to defend Wilson in one case. Therefore, information disclosed about the crime at hand would be outside the scope of that representation, and not be made to obtain legal advice. If the facts and the nature of the PD-defendant relationship do line up this way, couldn't this be the avenue for a PD who wants to disclose such information?

If anybody can shed light on the PD-Defendant scope of representation, that would be helpful. Also, sorry if somebody already posted but 200+ posts are alot to read (I skimmed)
3.7.2008 10:03am
great unknown (mail):
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.
3.7.2008 10:09am
PostNoBill:
For those who weigh in favor of non-disclosure, I have a brief hypothetical that I'd appreciate answers to.

In a small town in Mississippi, three neighbors live at successive houses, 208, 210, and 212 Confederate Drive. In 208 lives a white family, a husband, wife, and two teenage boys who exhibit some signs of being neoconfederates. In 210 lives a black family with one son. In 212 lives an old white man. The old white man hates the teenage boys in 208 because they have, on occasion, trespassed on and vandalized his property.

The black boy in 210 is an unhappy child and decides life is no longer worth living. He hangs himself in a tree in the front yard. The police first suspect lynching and all circumstanstial evidence appears to point towards the two white teenage boys in 208. They are put on trial; the prosecutor seeks life imprisonment.

During the trial, the old man from 212 goes to see a lawyer. The old man says to the lawyer, "I have a legal quetsion. I saw that young black boy hang himself, but I hate those boys from down the street so much I want them to go to prison forever. Do I have a legal obligation to tell the prosecutors what I know? I don't want them to find out because I want those teenage bastards to go to jail."

In Mississippi, there is no law requiring the old man to tell anyone what he knows. The lawyer tells the old man this and attempts to convince him to come forward with the evidence anyway. The old man refuses.

Should the lawyer breach privilege and attempt to keep the innocent teenage boys out of jail? What about after convictions and life sentences are imposed?
3.7.2008 10:20am
genob:
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.
3.7.2008 10:39am
Skyler (mail) (www):
So what is the range of punishments possible for such a breach of the rules?
3.7.2008 10:45am
Mike H (mail):
"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!
3.7.2008 10:49am
Todd74:
Realize that if lawyers were known for regularly revealing client confidences, even in situations like this, these two lawyers would likely never have received the confession, Logan would not have gotten this exhonorating evidence, and he would probably have been executed for a crime he didn't commit.

It is sad that it took 26 years for this to come out, but at least the secret didn't go to the grave with Wilson.
3.7.2008 10:53am
DeezRightWingNutz:
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?
3.7.2008 10:54am
TLove (mail):
No prosecutor should ever accept any such disclosure from a defense attorney. The defense attorneys in this case would have no effect on the outcome of the trial.

Hi mr. prosecutor, I can't tell you how I know, nor can you make effective use of my information, but my information is that you are prosecuting the wrong guy.

Every defense lawyer, in every case, would make such a statement to the prosecutor.

This debate is silly.
3.7.2008 11:02am
Bob from Ohio (mail):
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.
3.7.2008 11:02am
Bill Sommerfeld (www):
Todd74: you assume that, had the rules been different, the criminal wouldn't have told the lawyers. But you don't know that. While the optimal strategy for the criminal would have been to just keep his mouth shut, we're talking about criminals here, who often aren't the brightest bulbs; some will keep their mouth shut, some won't.

What's more, some people simply cannot keep secrets -- if they don't feel safe telling their lawyer about it, they may instead tell someone else they trust, and that someone else could well rat them out.
3.7.2008 11:07am
Bob from Ohio (mail):
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"?
3.7.2008 11:11am
D Palmer (mail):
Quite the lively discussion.

I understand the concept of priveledge but I think that a censur for violating it should have been an acceptable price to pay so that an innocent person doesn't spend 26 YEARS in jail for a crime they didn't commit.

Why did the killer even confess to the lawyers? They weren't defending him from THAT crime.

Despite the "ethical" responsiblilities they had, the MORAL choice was to try and make sure an innocent man doesn't go to prison. An anonymous call to the police dropping the name of the true killer might have been a technical violation of the ethical rule, but from a moral standpoint it would have been justified.

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. Any client stupid enough to tell his defense attorneys that he committed crimes that he has not even been accused of doesn't deserve to be protected for those crimes.

Only a lawyer would think that failing to disclose knowledge that would prevent an innocent person from being wrongly convicted of a crime is an "ethical" choice. And you wonder why the general opinion of lawyers is right there with child molesters.
3.7.2008 11:11am
Bulgaroktonos (mail):
"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?
3.7.2008 11:15am
Bozoer Rebbe (mail) (www):
Physician-client privilege is also protected. Let's say that Dr. Smith has learned information through privileged communication from a patient, Mr. Jones, that his patient is guilty of a crime that Mr. Adams is accused of committing. Smith stays silent to protect privilege and Mr. Adams is convicted and sent to prison.

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.

The only thing most lawyers care about is protecting their status as members of the club that can tell the rest of us how to act. Most lawyers will toss their client under a bus if it means a career advancement. When your lawyer negotiates with a prosecutor he is more concerned with his ongoing relationship with the prosecutor than with his client's interests.

The primary reason why judges don't like pro se defenses is that they resent an outsider trying to horn into their exclusive club.
3.7.2008 11:17am
Harry Eagar (mail):
'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.
3.7.2008 11:27am
David M. Nieporent (www):
Should the lawyer breach privilege and attempt to keep the innocent teenage boys out of jail? What about after convictions and life sentences are imposed?
Even if your mistaken view of who owns the privilege were valid, how exactly would he be able to keep them out of jail?

That's hearsay, and it's hearsay about which no exception applies; it's not a statement against interest. So the lawyer's statements wouldn't be admissible even if there were no attorney-client privilege. (And no, there's no, "But this would be exculpatory" exception to the hearsay rule.)

I cannot see the issue arising in my practice. Do you disclose to your clients that you would stand idly by and let them go to prison for something they did not do if ethics rules required it?
Specifically? No. But they already know I'm obligated to follow the ethics rules.
3.7.2008 11:29am
Robert J.:

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.
3.7.2008 11:31am
Elliot123 (mail):
"sure. but crim law is the same way. in hawaii, when i was there the age of consent was 14. had a woman complain that two guys had (consensual sex) with her 14 yr old daughter. they were in their 40's. TOTALLY legal. i told her it wasn't a police matter.

otoh, the exact same thing would get you serious prison time in other states. it's a totally legal act in one state (or at least it was. i heard they changed the age but haven't checked) and a heinous crime in the other."


Statutes change from state to state as each state tries to codify moral or ethical principles. In this case the principle is that adults should not have sexual relations with kids. Hawaii and Texas may implement that principle in different ways; that's to be expected. But, it's the same principle.

However, I would not expect the principle that adults should refrain from sex with kids to change from state to state. I would expect the people in both states to agree to the ethical and moral principle.

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. Are these people correct? No need to argue theory and speculation if we have a concrete example in front of us.
3.7.2008 11:52am
Paul Milligan (mail) (www):
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'.
3.7.2008 11:53am
Robert J.:
I seriously doubt whether Massachusetts presents any kind of concrete example. A comment to a state ethics rule is a far cry from that rule ever actually being invoked by a lawyer. If the general feeling of criminal defense attorneys is that revealing these confidences will destroy the system, then they won't reveal them, even if they are allowed to do so.

We'd also need some way of measuring whether the quality of representation was impacted by information that isn't given. I'm not sure there's a way to do that since
1)The number of cases where clients might be inclined to confess to a different crime are presumably few
2)Judging "quality of representation" is difficult, especially in a field where 90% of cases are settled
3)There's by definition, no way to know which cases are ones where information is being withheld and which are not
3.7.2008 11:59am
Bill Sommerfeld (www):

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.
3.7.2008 12:00pm
Crackmonkeyjr (www):
Nieporent: Admitting to murder is a statement against penal interests, which is a hearsay exception.

Rebbe: I doubt that a lawyer would be any more likely to go after a physician for not breaking privilege then they would be to go after another lawyer for the same. I wouldn't be surprised if these lawyers are sued (unsuccessfully) for not informing the authorities that they had the wrong guy. Keep in mind though, that Doctor-Patient privilege is not as uniformly applicable as other privileges (priest, attorney, psychologist, spouse). I believe that it does not actually exist in federal court and often statements made to a treating physician can actually be hearsay exceptions.

In general, this is a case of hard facts making bad law. Like many things, this is a situation where looking at the facts of one particular case makes you think "of course the lawyers should have come forward," but as further discussed above, the effects of not being able to be candid with your attorney creates an even larger problem. If you make an exception in one case, whether it be the legislature doing so or the attorney deciding on his own to accept the sanctions, it risks destroying the whole system.
3.7.2008 12:05pm
John Steele (mail):
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.
3.7.2008 12:05pm
A. Zarkov (mail):
“Most lawyers will toss their client under a bus if it means a career advancement.”

I don’t accept the “most” part of the statement. If you have facts to back this up, share them with us.

“The primary reason why judges don't like pro se defenses is that they resent an outsider trying to horn into their exclusive club.”


There is much merit to this statement, but it needs elaboration. Here I’m mainly talking about civil, but it applies to criminal as well. One reason judges tend to hate pro se people is they don’t understand the rules and procedures, and they make a mess of the proceedings. Moreover they expect the court to cut them some slack. On the other hand, judges tend to hate really competent pro se people even more because it reveals that this law stuff isn’t all that difficult after all. That’s really a threat to the system. As I’ve always said I can turn an engineer into a lawyer a lot more easily than the other way around.
3.7.2008 12:05pm
Bulgaroktonos (mail):

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.
3.7.2008 12:11pm
Skyler (mail) (www):
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.
3.7.2008 12:21pm
A. Zarkov (mail):
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.
3.7.2008 12:24pm
David M. Nieporent (www):
Nieporent: Admitting to murder is a statement against penal interests, which is a hearsay exception.
I'm well aware of that. Now re-read the hypothetical in the post to which I was responding, in which there was no murder.
3.7.2008 12:25pm
Philistine (mail):
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.
3.7.2008 12:26pm
S.C. Ruffey (www):
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.

As for me, I think the rule of law trumps all of it. The Rules of Professional Responsibility have the force of law. The law may not always lead to an ideal result, but in the aggregate, it leads to a better society than one ruled by each person's individual decisions about morality.
3.7.2008 12:30pm
Skyler (mail) (www):
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.
3.7.2008 12:30pm
Bryan C (mail):
Is there any sort of extra-legal action the two PDs could have taken to interfere with the trial? I'm sure that as lawyers they could devise various ways of forcing a mistrial, perhaps without even being suspected. Maybe deliberate jury tampering, for example. That alone wouldn't prevent an innocent man from going to jail, but if the prosecution's case was already weak then it might be enough to derail the case. Yes, it's ethically dubious, but it wouldn't require breaking confidentiality.
3.7.2008 12:35pm
Anderson (mail):
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.
3.7.2008 12:35pm
Robert J.:
<blockquote>
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.
</blockquote>

I'm not sure the significance of the difference between the rules and the comments. I'm not sure there even is a difference, for these purposes. My point was, until we know that people are invoking this rule regularly, we don't have any reason to believe that it would have any effect.

Also, comments like "clearly some people get really irate at the idea that innocent people should be kept out of jail" are completely unhelpful and really beneath anyone of moderate intelligence. This is a disagreement over what the best system is, and whether in these rare circumstances, an innocent man going to jail is a necessary consequence of a system that needs to exist. No one wants innocent people to go to jail. Of course, you knew that, but I guess the moral superiority of feeling like those who disagree with you want to see innocent people in jail is more important to you than rational thought.

As a last point, the really awful part of this discussion, for me, is that some people seem to think that defense attorneys are to blame for innocent people going to jail. They're not. They're the only ones to thank when innocent people are kept out of jail. If you have to blame someone, the people to blame are the prosecutors, judge, and jury who are actually responsible.
3.7.2008 12:40pm
Flash Gordon (mail):
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.
3.7.2008 12:45pm
A. Zarkov (mail):
On the unpopularity of lawyers. While there is a lot of crime the overwhelming majority of the population has little contact with the criminal justice system except for traffic violations. The kind of lawyers the public comes into contact with the most are divorce and personal injury lawyers who are hardly representative of legal system. Outside of immigration law, these are the low prestige areas of legal practice.
3.7.2008 12:47pm
George Oscar Bluth II:
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.
3.7.2008 12:54pm
JohnMc (mail) (www):
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.

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.
3.7.2008 12:54pm
Erick:

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.
3.7.2008 1:14pm
Erick:

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.

There is no "immunity or whatever." To say anything useful they will have to violate client confidence. 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. 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.
3.7.2008 1:18pm
Ben P (mail):

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.
3.7.2008 1:20pm
Genghiz Cohen (mail):
If the lawyers knew they'd be released from confidentiality on the death of their client, they should have arranged that that condition would come about as soon as possible. :-)
3.7.2008 1:26pm
vidkunquisling:
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.
3.7.2008 1:26pm
A. Zarkov (mail):
Hypothetical conversation between a man accused of a serious crime and his defense attorney. Here the defendant is an intelligent and well-educated man, otherwise the vocabulary would be different.

Attorney: I need you tell me everything that might have some bearing on this case. I need to have a complete picture to represent you properly.

Client: How do I know I can trust you? How do I know you won’t rat me out?

Attorney: All our communications are privileged. Now be clear I can’t be a party to any kind of fraud on the court. And you tell me that you are going to go commit a crime while out on bail I will rat you out. But anything you tell me about what you did or someone else did in the past is held strictly confidential.

Client: What happens if you do rat me out?

Attorney: I am subject to severe sanctions. I will likely lose my license to practice law, and my whole 25-year career goes down the drain.

Client: Well all that sounds great, but I still don’t trust you. Suppose I tell you that I committed other crimes having nothing to do with this case? Suppose someone else will go to jail for something I’ve done. Won’t you rat me out to save an innocent person from going to jail. I know I would in your place.

Attorney: I see your point; most people would agree with you, but that’s not the way it works. We take our pledge of confidence most seriously, and it trumps everything else. While I would feel really awful if an innocent person went to jail, my first duty is to you my client, not someone else’s. Without your express permission I cannot and will not divulge what you tell me. You can confess to me and feel assured it go no further.

Client: Suppose someone could get executed for what I have done. Would you still respect our confidence.

Attorney: Absolutely.

Client: Ok, I guess I have to trust you.

Attorney: Oh by the way, I think I need to tell you that the rules in our state have changed. If I want, I can rat you out to save an innocent person.

Client: Why did you just tell me that if I have your absolute assurance?

Attorney: Well nothing is really absolute.

Client: You’re fired.
3.7.2008 1:27pm
Eric Blair (mail):
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.
3.7.2008 1:27pm
Barry Dworak (mail):
<blockquote>
But then other potential murder defendants would be unable to trust their lawyers,
</blockquote>

Uh, can we perhaps accept that, if someone confesses to the crime of murder, he can't expect a "fair trial" where his attorneys, who know that he did it, will defend him as if they believed that he is innocent?

What I'm getting at is this: is a <i>direct and plain confession to killing a security guard with a shotgun</i> necessary attorney-client communication? The lawyers can choose not to ask, and the client not to volunteer such a confession. How, exactly, is this information germane to his defense, anyway? Why would the attorneys get this confession, EVER, unless he wishes to plead guilty? Can they not effectively defend someone without extracting a confession?!? It's hard to see how. And if he <i>volunteers</i> this confession, why is it protected by these ethical rules?
3.7.2008 1:28pm
Anderson (mail):
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.
3.7.2008 1:28pm
TerrencePhilip:
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.

Well, unless one of your civil clients tells you they murdered someone. :)
3.7.2008 1:31pm
Brian G (mail) (www):
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.
3.7.2008 1:38pm
Prufrock765 (mail):
I have read most but not all of the comments.

I would ask for the purists out there--Milligan, Bob, etc--to state some kind of rule as to when a lawyer should/must reveal confidential client info.
I would specifically hope that their rule addressed the hypo where I represent a parent in a custody battle and during the course of the representation I learn something about him that I "know" makes the other parent more fit than he. The well-being of his children is at stake. What do I do?
3.7.2008 1:39pm
Paul Milligan (mail) (www):
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.
3.7.2008 1:39pm
Cheburashka (mail):
PostNoBill


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.


If you think that's true, than cite a case.

(Actually, you're wrong on both grounds. There's no constitutional right to present exculpatory evidence. There's a constitutional right of procedural due process applicable in criminal proceedings. And the defendant's procedural right under trial court law to access and present otherwise admissible exculpatory evidence may sometimes trump qualified privileges against disclosure such as trade secret protection. But not the A-C privilege.)
3.7.2008 1:45pm
Edward A. Hoffman (mail):
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.
3.7.2008 1:45pm
Armen (mail) (www):

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.


So your entire outrage starting with comment #1 hinges on the fact that double jeopardy may have attached?
3.7.2008 1:47pm
Janie4:

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.
3.7.2008 1:51pm
willis (mail):
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?
3.7.2008 1:52pm
Prufrock765 (mail):
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....
3.7.2008 1:56pm
willis (mail):
"you ALSO now know that your client is guilty of robbing a mint."

That knowledge is privileged information, but that kind of ethical question never even appears on your radar screen, so whats the point?
3.7.2008 2:01pm
jimmy (mail):
Reading the blithe sophistry of the lawyer commenters — not hard to see why people hate lawyers.
3.7.2008 2:01pm
Colorado Steve (mail):
As unjust as the situation was in this case, I can't see much in the way of acceptable alternatives. Suppose a perp's lawyer can somehow prevent the conviction of the innocent party, whether it's by talking to the prosecutor, a judge or an ethics panel, and get that person off. Then I would think it wouldn't be so hard for someone with means, maybe a drug lord or gang leader, to pay off another criminal to "confess" to his lawyer a crime. The paid-off criminal couldn't be convicted and, based on the false confession; neither would the real criminal. There's a wide-open field for fraud if the lawyers had to reveal their client's other crimes.

As to a side point Public Defender made, there should be a way for actual innocence to be grounds for an appeal or perhaps a new trial. The burden of proof should be shifted to prove innocence. I can't see how the interest of justice, or anything else save the prosecutor's ego, is served by the state spending tens of thousands of dollars a year imprisoning innocent persons. Especially while the real guilty parties are off committing more crimes.
3.7.2008 2:02pm
Paul Milligan (mail) (www):
"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' :-)
3.7.2008 2:05pm
Ken Hahn (mail):
I can see the Public Defenders' dilemma and perhaps they were right. I'm not a lawyer but I do see their point. That being said, I have two points.

1. Why is it that every time a lawyer does something immoral there is a point in legal ethics that protects him?

2. If Mr. Logan is released, wouldn't any reasonable person find that if he ever killed a lawyer it would be justified?
3.7.2008 2:08pm
Edward A. Hoffman (mail):
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.
3.7.2008 2:11pm
Philistine (mail):
@Paul Milligan

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.



????

AIUI, Wilson was never ever arrested for the murder, let alone tried and acquitted.

Beyond putting Wilson in jail (where he already was for an unrelated murder)—disclosing this information would very likely have lead to him receiving the death penalty. Logan's co-defendent got it, though Logan "only" got life (not sure why since Wilson was, and Logan was alleged to be, the trigger man).
3.7.2008 2:12pm
Bulgaroktonos (mail):
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.
3.7.2008 2:13pm
Philistine (mail):


2. If Mr. Logan is released, wouldn't any reasonable person find that if he ever killed a lawyer it would be justified?



How about if he killed the three eye-witnesses who got on the stand and swore they saw him. I'd love to see some one track them down and get their stories--incompetent, or pressured by police?

I'd like to see contemporary pictures of Logan and Williams to see how much resemblence there was.
3.7.2008 2:16pm
rasqual (mail):
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.
3.7.2008 2:21pm
Justin Levine:
Let's say we live in a world where the client can't trust their attorneys to the extent that they can't admit their crimes to them - so what? Whay would that be bad?? Attorneys would then still represent their client based on their own client's lies. If that puts the client at a disadvantage - so be it.

That is a far better consequence than the injustice of letting an innocent person rot in prison. The so-called cannon of legal "ethics" are a disgrace.
3.7.2008 2:31pm
Harry Eagar (mail):
'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.
3.7.2008 2:34pm
Janie4:
Bulgaroktonos: But just by using the word "suffering", you're unwittingly putting the lawyers in the same category as Logan. Sure, they suffered much less, but they suffered. Essentially, don't be so hard on the lawyers, have sympathy for the lawyers in fact, they were caught between a rock and a hard place. They were victims too of the dilemma between their ethics and an innocent man in prison.

But I don't have sympathy for them. Sorry - they were in that place on their own choice. Empathy is different from sympathy. I empathize that they were faced with a horrible decision, but I don't sympathize. They were perfectly free to change that decision - it wasn't an Act of God, it wasn't an accident beyond their control. They would potentially lose their career, but Logan lost 26 years of his life. They were actors, Logan was a victim. To be blunt, they felt bad while living on the outside, watching whatever movie they wanted, driving to the beach on a whim. Logan suffered while incarcerated, deprived of his liberties and choices.

Look if they did the right thing, great. But they can live with most of society having no sympathy for them and condemning their choice.
3.7.2008 2:42pm
Ben P (mail):

"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.
3.7.2008 2:50pm
Erick:

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.

As others have already said, this fact does not appear accurate. If you have some additional information, please post it.

Even if it was true, you are at the very least exposing your client to civil liability, and could still be exposing him to some sort of criminal liability. Perhaps a clever prosecutor could find another crime to charge him with, or another state or the federal government could find a way to prosecute him (e.g. Rodney King case and civil rights violations).


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

Aren't you clever. Evil lawyers only care about money? I've seen a lot of comments in a similar vein. Trying to somehow portray the ethical rules as inconsistent because there are exceptions or because certain things are punishable and others aren't.

Its a pretty simple system of priorities. Clients come first. In certain instances, where the client is engaging in very specific wrongful conduct, a duty to the court or others may occasionally arise. This doesn't arise here because not confessing is not wrongful or illegal. He doesn't have to confess, so we can't breach our highest priority duty just because he doesn't want to.
3.7.2008 2:55pm
S.C. Ruffey (www):

'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?
3.7.2008 2:58pm
Steve2:


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.


Ben, I don't like having the system work that way. As I see it, a desirable system is concerned solely with the end result of "everyone who deserves punishment gets it, and everyone who does not deserve punishment doesn't get it", without regard for how that's accomplished. To quote Rod, "Our goal for improving the justice system is to raise the bar as high as possible for what it takes to convict an innocent person. Likewise, anything that makes it easier to convict a guilty person is also an improvement." So just as I'd like to see prosecutors and police compelled, under threat of imprisonment, to reveal exculpatory evidence, so would I like to see defense attorneys compelled to expose condemnatory evidence.

Let me say it again: as a member of the general public, I would prefer a system where if a client confesses to their defense attorney something they haven't yet been charged with, their attorney turns them in for it. Because, so long as the crime is a legitimate one (not something like sodomy or blasphemy where the illegality is an injustice), then if you do it, what matters to me is that you end up in jail, not how. Likewise, in this case, if Logan didn't do it, that makes his 26 years of imprisonment - longer than I've been alive! - 100% an unjustified injury to him. Kidnapping, false imprisonment.

So Ben, I want a system where you are legally obligated "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" - because in my mind, that's what you're morally obligated with.


I don't like that the legal system doesn't punish crimes of omission. I don't like that it provides privileges that can allow someone who's done harm to someone else to go unpunished. I don't like that it holds process in higher regard than outcome, and that results-oriented jurisprudence is denigrated rather than lauded.

"If lawyers violated legal ethics every time they thought doing so would help avoid getting someone screwed, the system would fall apart." Good. If I could raze the system to the ground and replace it in full, I would.
3.7.2008 3:06pm
Chris Smith (mail):
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".
3.7.2008 3:17pm
Ben P (mail):

Because, so long as the crime is a legitimate one (not something like sodomy or blasphemy where the illegality is an injustice), then if you do it, what matters to me is that you end up in jail, not how.


So the lawyer should betray his client unless it's for a crime you find silly? What makes you, or the lawyer for that matter, entitled to substitute his judgment for that of the general public? What about if it's the clients judgment that it's a silly law, but the lawyer think's it's serious?


Further, what if the facts are slightly in doubt. The client admits to shooting the guy, but claims it was self defense. The victims family asserts that this was a shooting in clod blood, and if taking their facts, the public as a whole would think "yeah, self defense, what a cop out"

Is the lawyer entitled to accept the clients facts? or should he make a judgment that the client isn't telling the truth about self defense and consequently admitted to killing the guy?


What about mitigating factors? Being drunk isn't a defense, but it can sometimes be a mitigating factor. What if the client was drunk, and the lawyer is certain there'll be a conviction, but hopes to get it reduced to a lower degree. Does he still have the obligation to inform on his client?


If you change the duty of a defense attorney to anything other than representing his client, you run into a whole host of issues about who's judgment gets used to represent the client or the state and who applies it.
3.7.2008 3:24pm
Bulgaroktonos (mail):
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.
3.7.2008 3:29pm
rasqual (mail):

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 way attorneys advertise on television, this could provide another opportunity for competitive advantage. "Here at Dewey Cheatem & Howe, we'll let someone else rot in jail before we rat you out. You can trust us!"

Meanwhile, innocents in jail who've had their day in court under this just system can watch the ad and note who they can't trust. Namely, ethical lawyers.

As I say, I'm not an attorney. I appreciate the patience of those here who better understand the rigorous demands maintaining such a career can impose.
3.7.2008 3:36pm
Edward A. Hoffman (mail):
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.
3.7.2008 3:39pm
rasqual (mail):
This'll be my last comment as a layman around here.


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.


The "lesser of two weevils" thing doesn't apply, I take it? An innocent rotting in jail, versus a promise not kept to someone whose reciprocity with regard to such integrity is, shall we say, somewhat lacking?

It just seems to me that in the final analysis, it does boil down to what folks believe the systemic consequence of numerous such betrayals would be.

Almost -- almost, I admire the Gowachin.
3.7.2008 3:44pm
Paul Milligan (mail) (www):
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 !!!!
3.7.2008 3:55pm
Skyler (mail) (www):
I wonder what kind of stunt this whole thing is.

How can a judge order a new trial based on the confession of a dead man? How can these lawyers claim that they know this confession would have freed him so long ago? It kind of stinks of a PR stunt in some ways. We're arguing/debating here about angels on the head of a pin, but in reality this confession is of limited use in helping out the innocent man. Unless the guilty man agreed to confess publicly, the confession in private is of no use, and still is of no use.

I suspect that the only way the man can be helped is if there is physical evidence. And no one has mentioned that. (all you evidence experts forgive me if I'm wrong, I've not had that class yet)

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.

So again, I'm pointing out that outside of Massachussetts, the lawyer can rat out his client to save his own skin, but not someone else's.

The guilty bastard will have his confidence revealed, but the lawyer's safer now.

And the guilty bastard STILL gets to have a lawyer (a different one now!) who will look after his rights.

The law is not designed to let guilty men go free. The law is designed to protect his rights while concluding that he is guilty based on the facts and the law.
3.7.2008 3:58pm
Erick:

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.
3.7.2008 4:12pm
Skyler (mail) (www):
Paul Milligan, the rules are very specific about allowing a breach of confidence to prevent death or injury.

Here are the exceptions, synopsized to spare my typing fingers:

1.6(b)

(1) To prevent reasonably certain death or substantial bodily harm

(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. (Massachussetts adds in to prevent wrongful incarceration)

(3) To prevent, mitigate or rectify substantial injury to financial interests or property of another

(4) To secure legal advice about the lawyer's compliance with these rules

(5) To establish or claim a defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.

(6) to comply with other law or a court order


So, for all those thinking that a client would never trust his lawyer, there are already plenty of ways to rat out your client. If you want to learn confidences, all you have to do is threaten to implicate the lawyer with a charge in the matter and the lawyer can sing like a mockingbird.

Oh, but if someone else goes to jail, well, that's just tough luck. Just not the lawyer because lawyers are more important than the rest of you schmucks.

Four legs good, two legs better.
3.7.2008 4:13pm
Janie4:
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.
3.7.2008 4:15pm
Skyler (mail) (www):
Erick,

Hypothetically, the lawyer could be like that crazy woman, I forget her name, that was working with Al Qaeda in her attempt to represent Gitmo detainnees (or whatever the story was).

As a defense to the proceedings to disbar her, she could have revealed everything about her clients that was necessary to defend herself. Since she was willing to rat out her country, it's not inconceivable that she would rat out her client and she would be within her rights to do so, so long as it was reasonably necessary to reveal the info.
3.7.2008 4:17pm
Erick:
Clarification to my last paragraph:

...same crime as his client where the charge arose from events before the litigation.
3.7.2008 4:18pm
Ken Arromdee:
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.

Yes, it is about you, even though the word "drama" is, well, overly dramatic.

Ethics apply to all parts of life. It's wrong to ignore ethics in order to do your job. So it's *always* about your ethics.

This is just another version of "I was only obeying orders". 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.
3.7.2008 4:21pm
Nathan_M (mail):
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.
3.7.2008 4:23pm
Michelle C. Funk (mail):
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. Rather than the actual situation, they seem only to be addressing an impossible hypothetical in which it is 100% certain and true that Logan is innocent and Wilson is guilty, and it is 100% certain that the revelation of Wilson's confession would result in Logan's acquittal.

In the real-life scenario, none of these things was certain, and there could be no "just" action taken without having a way to establish the legitimacy of Wilson's confession as evidence in Logan's defence, which inevitably would depend on his being tried. I do not see any way around this. Following this, it seems that those in favor of the lawyers' having come forward with the confession believe that lawyers should feel morally obligated to see that their clients be tried for whatever confessions are made in confidence.

For instance, try another unlikely hypothetical: Wilson made the confession to his lawyers, but for some reason Logan was not apprehended, tried, or convicted until after Wilson's lawyers had been tragically hit by a bus. The outcome is the same and Logan is imprisoned for 26 years. Was it the moral obligation of the lawyers to come forward with the confession during their lifetimes, seeing as not to do so made it possible for an innocent man to be convicted?
3.7.2008 4:25pm
MikeMangum:
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.
3.7.2008 4:37pm
Anderson (mail):
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.

Tough to win the Dumbest Comment on this thread, but congratulations.
3.7.2008 4:45pm
Paul Milligan (mail) (www):
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.
3.7.2008 4:48pm
Public_Defender (mail):

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



I think you're just wrong to impute selfish motives. I don't think the lawyers kept quiet for fear of punishment (which they would have deserved had they disclosed). I think they actually believed in the system. It's hard to explain how deeply embedded the respect for client confidences is in the culture and ethics of defense lawyers. The system depends on us keeping secrets, even if that works an individual injustice from time to time. I would have made the same decision.

And if you think a public defender's lifestyle is "cushy," you haven't seen my pay stub. There are a lot easier ways of making a lot more money with a law degree.
3.7.2008 4:51pm
Elliot123 (mail):
"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.
3.7.2008 4:59pm
TerrencePhilip:
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.


Let's see how that pitch plays: "I represent someone who told me he really did it, conveniently already serving life. He will be happy to come to your trial and say he is the real killer, instead the person you have indicted and amassed evidence against. He'd just love to come to court and testify to the jury that you have it all wrong, and help obtain a possible acquittal of the person you are convinced is guilty. All you need to do to enable this outcome, is agree sight unseen that you will never seek the death penalty against him, ensuring that if you ever did decide to prosecute him there would be no change in outcome to him."

I bet the DA would jump at that chance!
3.7.2008 5:02pm
Paul Milligan (mail) (www):
"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 ?
3.7.2008 5:04pm
Nathan_M (mail):

And how, pray tell would you have us distinguish between you and they ?

Nazis dress more sharply than criminal defence lawyers.

Seriously, that's got to be the new dumbest comment in the thread.
3.7.2008 5:08pm
Fub:
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.
3.7.2008 5:09pm
Anderson (mail):
Oh, good lord. Representing a criminal and keeping quiet about a secret he's told me is supposed to be ANYTHING like obeying illegal orders to commit genocide?

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.

Hard to argue against? Tell yourself that, sure.

I'm stupefied that so many comments above have laid out how the defense attorneys not only had no other professional option, but also could have done very little even had they broken their oaths ... and yet, commenter after commenter ignores all that in favor of "sometimes you have to break the rules."

Well, great. You know what? If you want to break the rules, go find a professional rule-breaker, not a lawyer. Because lawyers are exactly the opposite, contrary to what some very, very ignorant people (here &generally) seem to think.
3.7.2008 5:12pm
David McCourt (mail):
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.
3.7.2008 5:13pm
PLR:
Which side is trying to grab the moral high ground? It appears everyone is fighting over it, but nobody has yet captured it.

Wow, 326 comments and too much to read. My first and only comment, at the risk of repeating:

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.

For people whose chosen lifetime profession involves the acceptance of a mandatory set of professional ethics, it is no surprise that they choose the way they do. Professional ethics can be changed by the industry, and outcomes like this may spur such a change. Or not.
3.7.2008 5:19pm
dick thompson (mail):
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.
3.7.2008 5:20pm
Anderson (mail):
to reveal what they knew about Logan's innocence, legal ethics be damned

Even though (1) it might very well have done Logan no good, and (2) it certainly would have betrayed their client?

Upthread, someone implied that a promise's validity depends on the quality of the person it's made to. I am still trying to think exactly what system of morals or ethics THAT little gem comes from.

Several people, more patient and intelligent than myself, have tried to explain what a "lawyer" is, but some people don't care to listen.

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.

Now, gotta get back to committing genocide and gang-bangs on behalf of my clients ... oath to uphold, and all that.
3.7.2008 5:22pm
Elliot123 (mail):
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?
3.7.2008 5:22pm
A. Zarkov (mail):
“Gang-bangers take an Oath to their gang - outlaw bikers take an Oath to their clubs …”

Now a lawyer who keeps his client’s confidence as he is supposed to do gets compared to a member of a criminal gang. If you think the American legal system is pretty much like a criminal gang, then I think you should emigrate. Besides the duty is owed the client as an individual. Moreover it’s a socially sanctioned activity—a gang isn’t.

There is nothing particularly new or novel about the ethical dilemma with respect to the Wilson case. Most if not all law students have to take some kind of legal ethics course. If an individual’s personal morality won’t let him adhere to the legal canons, then he should not practice law or stay clear of those practice areas likely to lead to this kind of personal moral dilemma. If you become a PD then you know this kind of thing might come up, so stay away if you can’t handle it. We can’t run a system if we allow every individual to make up his own set of rules.
3.7.2008 5:23pm
David M. Nieporent (www):
[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.
3.7.2008 5:23pm
Ken Arromdee:
Representing a criminal and keeping quiet about a secret he's told me is supposed to be ANYTHING like obeying illegal orders to commit genocide?

If obeying the criminal's order leads to someone rotting in jail for 26 years, it's pretty close. Sure, it's only one innocent life instead of many innocent lives, but it's in the same ballpark. It's not as if I'm bringing up Nazis to make a point about shoplifting.
3.7.2008 5:26pm
Paul Milligan (mail) (www):
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.
3.7.2008 5:30pm
dick thompson (mail):
If a client and the lawyer have this confidentiality system, then why would lawyers tell clients not to tell them things because they would have to let the courts know since they are officers of the court.
3.7.2008 5:32pm
Elliot123 (mail):
"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?
3.7.2008 5:32pm
David M. Nieporent (www):
Whoops. Try that again:

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.
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.
The judge could then have granted immunity or whatever based on the lawyers assertions,
Judges can't "grant immunity," and who is the judge supposed to be granting immunity to, and for what?
interviewed the other party on that basis.
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.
If finding the evidence credible, the judge could direct the DA to rescind the indictment or issue summary judgment from the bench.
A judge has no power to "direct the DA to rescind the indictment" merely because he finds someone else's secondhand confession "credible."
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.
Nobody is innocent or guilty until a jury says so.
3.7.2008 5:33pm
Ken Arromdee:
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?
3.7.2008 5:34pm
David McCourt (mail):
Anderson, I was a person before I became a lawyer, and my legal oath is not the first, or only, promise I have made. A. Zarkov, happily you do not get to decide who can or cannot be a lawyer. Having refused to hand over my conscience to the politicians who have been elected to the Illinois Supreme Court, or to the committee goers at the ABA, I'm sure I would not make your cut. Thank Ja for that.
3.7.2008 5:37pm
Jon Burrows (mail) (www):
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.
3.7.2008 5:37pm
Philistine (mail):
I'd still like to see the position of those saying the lawyers should have told is the same if Wilson had made his confession to a catholic priest in a confessional.

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.
3.7.2008 5:48pm
Mike G in Corvallis:
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.

?
3.7.2008 5:51pm
Nathan_M (mail):

If a client and the lawyer have this confidentiality system, then why would lawyers tell clients not to tell them things because they would have to let the courts know since they are officers of the court.

I think you're misunderstanding the duty a lawyer owns the court. You can't mislead the court, but that doesn't mean you can reveal confidential information to the court.

For example, suppose my client insists on calling a witness who he's told me will lie to give him an alibi. Because of my duty to the court, I can't call a witness who I know will lie on the stand.

But I also can't breach my client's confidence and tell the court the witness is lying. If my client insisted on calling the witness, I would have to withdraw from the case without telling the judge why.

There are other ways a lawyer's duties can conflict, but the result is never that the client loses his right to confidentiality. I can't think of any situation where my duty to the court would require breaching privilege.
3.7.2008 5:51pm
Brett:
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>
3.7.2008 6:02pm
Anderson (mail):
How many criminal defense lawyers have a "cushy lifestyle"?

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.

Btw, I looked at the 60 Minutes story, and how much effort did they put into that, exactly? They couldn't telephone any kind of expert in legal ethics to give a quote on the case? Stephen Gillers *lives* to get quoted in these kinds of stories, FCOL. (For Crying Out Loud - as deserving of acronymity as many other internet locutions.)
3.7.2008 6:06pm
David McCourt (mail):
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.
3.7.2008 6:09pm
Brett:
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.
3.7.2008 6:12pm
David McCourt (mail):
"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.
3.7.2008 6:14pm
Elliot123 (mail):
"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."

Are we to evaluate arguments based on the presenter's occupation?
3.7.2008 6:18pm
David M. Nieporent (www):
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.
3.7.2008 6:18pm
Wince and Nod (mail) (www):
IANAL and IANABET (Ballistic Evidence Tech).

As regards the shotgun evidence, some shotguns do have rifled barrels and would leave marks on a slug. The rest of the shoutgun match evidence mentioned I would not think would be conclusive proof, but also not useless as evidence. Extractor marks, for example, are not as unique as rifling marks, I've been told.

As yes, I have plenty of outrage towards the police and prosecutors. It does look to me as though the rules allow sufficient wiggle room for the lawyers in this case to argue that they can ethically disclose, given all the argument over rules that I've seen actual lawyers make on blogs such as this.

So what I'm not able to understand is this: Why didn't those lawyers develop an argument that they should be allowed to disclose, make that argument to a judge, and let the judge decide? I thought the roles were as follows: Lawyers argue law but judges decides law. So what if you don't think the lawyers could make a good argument! And so what if the actual lawyers didn't think they could make a good argument! Make the best argument you can think of. Lawyers make the best argument they can think of all the time, even when it isn't a good argument. And judges make the best judgement they can think of, even when it isn't a good judgement.

Yours,
Wince
3.7.2008 6:19pm
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.
3.7.2008 6:19pm
David M. Nieporent (www):
"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."

Are we to evaluate arguments based on the presenter's occupation
No. But we can evaluate arguments based on the presenter's understanding of the issues.
3.7.2008 6:21pm
David McCourt (mail):
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.
3.7.2008 6:22pm
Skyler (mail) (www):
Angels on a pin.

There's no reason to think that these lawyers could actually have anything that could have helped this man in his trial. So why do they bring this up?

I think I smell the motive now. It's a death penalty issue. Why else would lawyers get upset? They get to complain that they could only help one man from the death penalty if the other man was condemned to the death penalty. It's politics, of course.

And it let's a bunch of otherwise civilized people devolve into name calling on an incident that appears real but on examination is still only hypothetical.
3.7.2008 6:25pm
Brett:
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.
3.7.2008 6:34pm
Wince and Nod (mail) (www):
3.7.2008 6:35pm
Anderson (mail):
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?
3.7.2008 6:38pm
Jim C. (mail):
Paul Milligan wrote:

"It shows that the entire 'justice' system is not based in any way on 'justice', but rather 'My lawyer can beat up your lawyer'."

No, what is shows is that the justice system is not based on your understanding of what justice really is or what the justice system actually does.

"The only ones who would not be able to trust their lawyers would be the guilty."

The only ones who would be afraid of government wiretapping would be the guilty.

The only ones who would be afraid of government surveillance cameras in public places would be the guilty.

I think you catch my drift.
3.7.2008 6:42pm
Paul Milligan (mail) (www):
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.
3.7.2008 6:42pm
Paul Milligan (mail) (www):
Skyler -

"And it let's a bunch of otherwise civilized people devolve into name calling on an incident that appears real but on examination is still only hypothetical."

You hit upon the crux of the problem, or at least one of them.

Some lawyers are so devoid of humanity, so full of themselves and their 'code', so innoculated and hardened by their sense of self-importance and righteousness that the reality of an innocent man spending 26 years of his life in prison is 'only a hypothetical'.

Mr. Logan begs to differ with you. He thinks it's very real.

Perhaps you are right, and he is wrong.

Or not.
3.7.2008 6:46pm
bob (www):
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.
3.7.2008 6:56pm
David McCourt (mail):
"Mr. McCourt does not evince any understanding...."

ANY understanding? None at all? I must truly be dumb.

Perhaps we are talking past each other. 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. I acknowledged in my first post that violation of professional rules, even in this case, might require expulsion from the profession. I just think that, in some rare cases, real ethics might require violation of the Rules of Professional Conduct, even at the risk of expulsion. I wasn't born a lawyer, and I won't be buried as a lawyer (and apparently you join Zarkov in saying I shouldn't be a lawyer in between). I hope I never face the conflict these men faced -- and I have not criticized them, contrary to what you say. But, if it comes to that, I hope I would not do what they did.
3.7.2008 6:56pm
Brett:
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.
3.7.2008 6:59pm
Elliot123 (mail):
"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."

There are wide variances in the positions of both sides here. That's normal. We find tunnel vision everywhere.

I would also agree with Chesterton. Reform in itself is no virtue since it merely is a standin for change rather than improvement. But the mere existence of jackasses on either side of the question should not deter us from tackling it.
3.7.2008 6:59pm
Dave N (mail):
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).
3.7.2008 7:06pm
Jon Burrows (mail) (www):
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.
3.7.2008 7:10pm
Elliot123 (mail):
"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.
3.7.2008 7:12pm
Elliot123 (mail):
"No. But we can evaluate arguments based on the presenter's understanding of the issues."

Agree. And I woud say the issue transcends the confines of the legal profession.
3.7.2008 7:14pm
Dave N (mail):
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.
3.7.2008 7:18pm
Paul Milligan (mail) (www):
Brett - I am not going to follow you into your sewer in this forum. I have too much respect for Prof. Volokh.

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.
3.7.2008 7:19pm
David M. Nieporent (www):
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.)
3.7.2008 7:20pm
Brett:
I defy you, Elliot123, to produce any support from this thread for your claim that, "Others [presumably attorneys and law students] are employing tunnel vision to ignore anything outside the confines of their occupation, and show little evidence of knowledge or imagination beyond their occupation."

David Nieporent has correctly characterized the discussion. You have not.
3.7.2008 7:21pm
Elliot123 (mail):
"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.
3.7.2008 7:25pm
Brett:
Brett - I am not going to follow you into your sewer in this forum. I have too much respect for Prof. Volokh.


The guy who likened attorneys who follow their ethical rules to Nuremburg defendants, and accused them of not having two synapses to fire in order, is declining to "follow me into my sewer"? Because he has too much respect for the proprietor of the blog (who is an attorney)?

You can't make this stuff up.
3.7.2008 7:25pm
David McCourt (mail):
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.
3.7.2008 7:29pm
Elliot123 (mail):
"I defy you, Elliot123, to produce any support from this thread for your claim that, "Others [presumably attorneys and law students] are employing tunnel vision to ignore anything outside the confines of their occupation, and show little evidence of knowledge or imagination beyond their occupation."

Those who claim the rules of professional conduct are all that one should pay attention to show a lack of understanding that they practice their occupation in the context of the larger society which has standards, norms, ethics, and morality which cover all of us. It is possible that subsets of standards can lose their congruence with the overall standards.

Likewise, it is possible that a familiarity with the general standards, norms, ethics, and morality does not provide an insight into the particular constraints and demands of any specific occupation, whether it is law, engineering, teaching, accounting, or plumbing.

Hence, it's good to see such a diverse group playing together.
3.7.2008 7:33pm
Wince and Nod (mail) (www):
<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
3.7.2008 7:37pm
Brett:
David McCourt, you'll have to forgive me my lack of temperance in dealing with a pompous ignoramus who equates adherence to professional ethical rules with adherence to genocidal commands. Such individuals are not entitled to civility, professional courtesy, or indeed anything other than a richly-deserved rhetorical bitchslap.
3.7.2008 7:37pm
Brett:
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.
3.7.2008 7:43pm
Dave N (mail):
I found a link regarding the shotgun (see my post above). Logan's attorney tried to introduce it into evidence and the court refused to admit it.

If the link is correct, then the police did their job and the no Brady violation occurred. So for those who are angry at the police and the prosecutors, please explain to me what, if anything, they did wrong.
3.7.2008 7:45pm
Skyler (mail) (www):
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.
3.7.2008 7:45pm
Elliot123 (mail):
"Well, there's your problem: No one has claimed any such thing."

Perhaps you are far more acquainted with the 384 comments than I am, but I doubt it. But, whle we are on the subject, what should the legal profession use as a guide and standard in developing a set of professional rules of conduct? likewise, what should the overall society use in developing a set of professional rules for the legal profession?
3.7.2008 7:49pm
Elliot123 (mail):
"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.
3.7.2008 7:55pm
Russ (mail):
"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."

This is just another form of "we lawyers are smarter than you folks, so shut up and listen to us."

Please take that argument in front of the next group of non-lawyers you speak to - like, maybe, a jury.
3.7.2008 8:10pm
Skyler (mail) (www):
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.
3.7.2008 8:14pm
Elliot123 (mail):
It would appear that "permitting" throws this squarely into the arena of the reasonable man. The man on the street who has information that can save someone from execution or prison decides entirely on his own discretion - just like the attorney in Boston.
3.7.2008 8:29pm
Brett:
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?
3.7.2008 8:36pm
Ken Arromdee:
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.

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?

"Profoundly stupid" isn't an argument.
3.7.2008 8:44pm
Ken Arromdee:
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?
3.7.2008 8:49pm
SPQR (mail) (www):
The thread hit Godwin's law and bounced I see.

There are specific reasons for this ethical rule. Those throwing around the nazi references are not merely poisoning the discussion but also showing that they can't rationally argue the purpose of the ethical rule in question.
3.7.2008 8:55pm
Brett:
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.
3.7.2008 8:55pm
Elliot123 (mail):
"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?"


Good idea. But if you want to run a test, maybe you could do it based on what I wrote? Perhaps there is a canon about that? (I don't know what "coterminous" means.)

I said, "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."

So, who agrees with me? Who thinks this thread shows what I have claimed? Who has sufficient reading comprehension to ace the LSAT? Free beer and a decoder ring for anyone on my side, and Brett will autograph a copy of the ABA Model Code Of Professional Responsibility for anyone who sides with him.

Vote early. Vote Often.
3.7.2008 9:03pm
Brett:
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.
3.7.2008 9:08pm
Blithering Idiot (mail) (www):
I think AS first said it above, but the right decision is for the attorney(s) to reveal what they know. Yes, it may even mean disbarment.

I'm an attorney and I put in a lot of hard work to get through school and pass the bar. I love what I do and it would destroy me to give it up. But I'm with Socrates and Jesus on this -- it's better to lose possessions than to lose your soul. Not an easy decision and I'm not condemning the attorneys -- but I wish they had chosen differently.

wm.
3.7.2008 9:08pm
Joshua:
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.
3.7.2008 9:08pm
Elliot123 (mail):
"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."


Sorry. Can't permit that. Voting has begun and I'm already out a six-pack.
3.7.2008 9:15pm
Mike G in Corvallis (mail):
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.
3.7.2008 9:29pm
Mike G in Corvallis (mail):
Crap. Preview won't help if you use the wrong word and don't catch it. In my post above, I meant to write:

Perhaps I'm missing Brett's point, but frankly, I wouldn't choose (a).
3.7.2008 9:46pm
David McCourt (mail):
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.
3.7.2008 10:41pm
Harry Eagar (mail):
'Do all of you anti-client "lawyers" sell your client down the river on this on this fact pattern as well?'

Fact pattern? I attend trials at which defense attorneys present juries with made-up (that is: false) theories, and I guess that's OK, ethically.

It seems to me that an ethical system that rewards lying and punishes the revelation of 'truth' (if that's what it is here) needs more work.

I understand it gets complicated, that people tell lawyers (and cops, journalists) they committed crimes they really didn't do.

Query: let's say the 2 defense lawyers get a message to the prosecutors hinting that if the cops look at the case from this angle, they will find that the case against Wilson had a hole in it?

I guess I'm assuming here that the defense lawyers know quite a bit about what the prosecutors think the evidence in the case is. That might well not be the case.

So here's a difficult ethical question for you lawyers: Is it unethical to try to unleash exculpatory evidence while at the same time keeping confidential other evidence that would identify a criminal?

Seems to me that exculpating an innocent person would be a good thing in itself, but by reopening the investigation it might -- if the detectives are good enough -- lead back to their client.

(Not to get too high on a high horse. In my job, newspapering, there are people who argue that if, as reporters, they observe a crime/act of malfeasance they have no duty to report; in extreme cases, that they are forbidden to report. I think these people are scum but that's what happens when the threshold to entry is painted on the floor. )
3.7.2008 10:45pm
Bruce Hayden (mail) (www):
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.
3.7.2008 10:54pm
Bruce Hayden (mail) (www):
It seems to me that an ethical system that rewards lying and punishes the revelation of 'truth' (if that's what it is here) needs more work.
Let's be a bit more precise here. Attorneys cannot ethically lie. Period. This is one of the reasons that Bill Clinton had his license suspended for five years, and would have likely had it revoked in those states that don't allow five year suspensions. This is one of the reasons that lawyers often sound like they are saying one thing, but are really saying something else.

One interesting case in CO a decade or so ago had a DA involved in a sting operation where another attorney was enticed by a fake defendant into trading legal services for illegal guns. The attorney who took the guns in trade was disbarred, but the DA was severely disciplined for dishonest - the arrest records for the fake defendant were faked, etc. under this supervision. And so he was, I believe, suspended.

But that doesn't really answer your contention
Fact pattern? I attend trials at which defense attorneys present juries with made-up (that is: false) theories, and I guess that's OK, ethically.
The defense attorney's job here is to raise a reasonable doubt. He can't knowingly put his client on the stand to lie, and he can't knowingly lie himself to the court/jury. But that will often leave a lot of room to speculate, propound questionable theories, etc.
3.7.2008 11:08pm
Brett Bellmore:

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.
3.7.2008 11:12pm
Elliot123 (mail):
"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."

What is so difficult to understand about the ethics that attorneys subscribe to? I suggest it's more likely that some folks don't agree with some of the aspects of that set of rules. One can understand perfectly well, and also disagree.

Is it reasonable to think that only members of a given occupational field can understand the ethics that occupation embraces? Why?
3.7.2008 11:24pm
Richard Aubrey (mail):
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.
3.7.2008 11:27pm
David McCourt (mail):
"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..."

I sat through legal ethics at both the University of Chicago and Northwestern, and never heard anything like that. No one told me I had to sign over my conscience, and accept the occupational rules of a guild in place of commonly held ideas of right and wrong.

Confidentiality is indeed important, but has been significantly eroded in the area of securitioes fraud, for example.

BTW, What's so sacred about about this particular confidence? If a client wants to brag to his lawyer about committing some murder unrelated to the representation, why does the world end if the rules are changed to regard that as outside the zone of confidentiality? Shouldn't the scope of the confidentiality rule be in some way related to the purposes it serves?

I don't know the answers to these questions, but I for one wasn't advocating a wholesale change in the rules. I am certainly one of those attorneys who would "want to find a way out of this" -- who wouldn't try to find some way within the rules of the profession to save Logan? I was advocating, as a last resort, breaking those rules (and accepting the consequences, e.g., possible disbarment, suit by one's client), when the alternative was watching an innocent man rot in prison for 26 years. This case is an extreme one, and it's no answer to this particular dilemma to talk blandly about how well things presumably work in all the other cases (well, other than that, how was the play, Mrs. Lincoln?).
3.7.2008 11:43pm
Brett:
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.
3.8.2008 12:02am
Brett:
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.
3.8.2008 12:17am
Brett:
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.
3.8.2008 12:18am
Mike G in Corvallis (mail):
I can think of a recent example of a lawyer who was not at the time a practicing attorney who lied under oath for a Higher Cause: to save himself some public embarrassment and avoid paying a monetary settlement. Quite a few people in the legal profession defended his actions. Nevertheless he was barred from practicing law in his state for five entire years.

Just imagine how long a lawyer who broke confidentiality to prevent an innocent man from going to prison would be barred from practicing law! And how he would be condemned by the other practitioners of his profession!
3.8.2008 12:23am
Mike G in Corvallis (mail):
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?
3.8.2008 1:13am
Brett:
Mike: Well, yes, I would still vote to have you disbarred. I can respect your convictions while still believing that your breaching your client's confidences was inconsistent with your professional obligations.

I'm open to suggestions as to how ethics rules might be fine-tuned, to avoid situations like this. I'm also open to less-prejudicial variations on "rat out", if you'd care to propose some.
3.8.2008 1:36am
MikeMangum:
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.
3.8.2008 3:08am
Mike G in Corvallis (mail):
Brett wrote:

I'm open to suggestions as to how ethics rules might be fine-tuned, to avoid situations like this.

It's been repeatedly stated that Massachusetts has fine-tuned the rules by creating "an additional skinny-as-a-starving-flea exception," as PostNoBill so eloquently put it. So far nobody has presented any reason to believe that Massachusetts' rules have caused the collapse of civilization, or even that the new exception has ever been used.

I'm also open to less-prejudicial variations on "rat out", if you'd care to propose some.

Well, I've been using the phrase "break confidentiality," which seems to do the job. Quite a few other people in this thread have not found it necessary to use the phrase; I suggest you reread the discussion thread if you would like to find alternative terminology. To my surprise, ten people (including me) have used the word "rat" in this thread, although several were quoting others or were using the phrase "rat out" sarcastically. It would seem that "rat out" is a term of art among lawyers. Gosh.
3.8.2008 4:22am
Mike G in Corvallis (mail):
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.
3.8.2008 4:40am
Zieggenfus (mail):
For me, the major conflict this issue brings up is that I believe our legal system should hold among its highest priorities the principle that "Better that ten guilty persons escape than that one innocent suffer".

Can we all agree that it is a flawed ethics system that allows an innocent man to be jailed while evidence of his innocence is known to those adhering to and governed by that system?

So lets discount the unknowns and for the purpose of this post, assume that the PD's actually had proof - that could only be provided/utilized by breaching confidentiality - exonerating Mr. Logan.

What must be changed within the canons of legal ethics for the quote below to become the norm?


Platonisto:
(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.
3.8.2008 7:19am
JohnMc (mail) (www):

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.
3.8.2008 10:43am
Elliot123 (mail):
"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."

I'd note that lawyers stand up in court everyday and tell juries just how enormous are the consequences of lapses by waiters, plumbers, and janitors.
3.8.2008 11:58am
The American Dream:

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.
3.8.2008 12:33pm
Skyler (mail) (www):
Mike G asked,

In that case, what is your objection to it?



I don't object to it. I think it's quite sensible. If a lawyer can break confidences to keep himself out of jail, he should surely be allowed to do it to keep someone else out of jail.

But I don't know how hearsay would keep someone out of jail. If there is physical evidence, that's a bit different, but a deathbed confession is pretty worthless.

I honestly think that this whole issue is made up or at least exaggerated.
3.8.2008 1:19pm
David M. Nieporent (www):
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?
3.8.2008 2:23pm
Harry Eagar (mail):
Bruce sez: 'he can't knowingly lie himself'

Man, I attend trials. Some of those defense lawyers must be treading a very fine line in their 'speculations.'

It sure sounds like they are 'making things up' with the intention of 'deceiving' juries to me.
3.8.2008 2:31pm
MikeMangum:
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.
3.8.2008 5:36pm
sef:
These guys did the right thing.

David M. is right ::did I really just type that::

Let's put the shoe on the other foot. Say these two go to the press, the DA, the judge or whoever, and say "hey my client confessed" &Logan is innocent. Say they go one step further than David M's hypothetical, they tell what they know (and off the record conversations between lawyers who trust each other -- as most, but not all DA's and Defenders do -- have led to odder things). What then?

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?

Let's go two steps even further, if you are these two former public defenders, what do you tell your next client after you have told Andrew Wilson's secrets to the police &prosecutors? "Trust me"? - cuz they won't because you are a rat. No you don't squeal, you suck it up, you do what these two guys did, you buy a bottle of vodka to dull the pain on your way home from work, and work your support network until you can come to terms with what you've done. Innocent people get convicted, it sucks, the system sucks, but it is still the best system out there, and the only system we have.

You don't get to handle the serious felonies that Messrs. Jamie Kunz and Dale Coventry have without having danced with the dark side of your own soul more than once. Walk a thief, rapist or murderer (at least in your mind), better yet have an innocent client (at least in your mind) convicted of an "A"/"1st degree" felony and see what happens. Do this enough and you realize that there are more important things in the legal system than your fragile legal ego and the public's finicky sense of morality.

And despite the law schoolers saying the RPCs/ethics rules permit Kunz &Conventry to possibly squeal on their clients if there was a death sentence, the Sixth Amendment, as most attorneys who do fulltime defense work interpret it, doesn't permit ratting out your client -- ever. 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.
3.8.2008 6:18pm
Harry Eagar (mail):
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.'
3.8.2008 6:52pm
sef:
Harry:

I was specifically referring to "finicky" as those who said the lawyers had a moral duty to disclose.

&like the overwhelming majority of the ABA's member, I think the death penalty doesn't work. Apparently you missed the memo, the ABA opposes the practice of capital punishment as currently practiced in the United States.
3.8.2008 7:35pm
markm (mail):
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.
3.8.2008 8:34pm
markm (mail):
Dave N (mail):
I found a link regarding the shotgun (see my post above). Logan's attorney tried to introduce it into evidence and the court refused to admit it.


I'd sure like to know more about why the shotgun wasn't admissible. Perhaps the forensics tying it to the murder was pretty shaky - a shotgun might leave individual marks on a slug, but it's far more common to load them with pellets, and I think that matching ejected casings is unlikely to give you much better than a one-out-of-ten ID. However, if the ejected casing supported the prosecution's theory, I doubt it would have been excluded. Nor does possession of the murder weapon long after the murder automatically make the possessor the murderer, but I've never heard of prosecution evidence being excluded on that ground.
3.8.2008 8:52pm
markm (mail):
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.
3.8.2008 9:43pm
JohnMc (mail) (www):

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.


Hmmm, that has the ring of "Leave this to the professionals..." Had we followed that logic the American Revolution would have never started. And the Titanic would still be afloat.


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


The jury having done so on the representations of a prosecutor who in the majority of cases is depending on circumstantial evidence for a conviction. And as we have come to realize out of the Duke case, in some cases the desires of the prosecutor are not necessarily based on 'blind justice' but on wishing to put notches on the gun stock. I say that as I sit in the county next door to Dallas who right now has the highest retrial rate in the nation.


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.


Assuming you believe that is how it needs to go down. There are trials that additional evidence indicates that the man could not have committed the crime. If the public is informed that evidence exonerates the accused most will accept it. I'll put the flip on your observation. How would the public feel if they were made privy that an innocent man was on trial for a crime he did not commit? If the judicial system is a sham how long do you think the system will last?
3.8.2008 10:49pm
Elliot123 (mail):
"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?
3.8.2008 11:24pm
Dave N (mail):
I am having my doubts about Mr. Logan's innocence, despite what Wilson told the attorneys. Out of sheer curiosity, I looked the Logan case up on Westlaw. Logan's original conviction was overturned on post-conviction review for ineffective assistance of counsel. People v. Logan, 586 N.E.2d 689 (Ill. Ct. App. 1991). The Illinois appeals court noted the possible issue exclusion of the shotgun, but found ineffective assistance of appellate counsel for failure to raise an issue regarding the prosecutor's comments on an unrelated issue.

The decision makes it pretty obvious that everyone was aware of the "Wilson-is-the-real-killer" theory in 1991. Funny thing is, Logan was convicted again after a second trial, where I have to believe the SAME defense was raised at the second trial as at the first.

Logan's conviction was affirmed in an unpublished disposition. People v. Logan, 699 N.E.2d 1035 (Ill. Ct. App. 1998) (table). The fact Logan was convicted twice and neither jury bought his theory suggests that there actually is the possibility, believe it or not, that Logan is GUILTY.

Imagine that.
3.9.2008 4:36am
The American Dream:

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.
3.9.2008 11:50am
MrJustice:
Defenders of the lawyers: You should not blame them because they were upholding their ethical duties.

Those who blame the lawyers: The lawyers acted wrongly by knowingly allowing an innocent man to sit in jail.

Perhaps, the real indictment should be of all lawyers on the grounds that no moral being would have swear such an oath.
3.9.2008 4:19pm
MrJustice:
Correction: The word "have" should be omitted.
3.9.2008 4:30pm
Kenneth Almquist:
"As a member of the general public, I would prefer a system where if a client confesses to their defense attorney something they haven't yet been charged with, their attorney turns them in for it."

As a different member of the public, I think that would be a bad idea. Suppose a man is arrested for murder. The man is innocent, but unfortunately for him, he was using the services of a prostitute at the time the murder was committed. This places him in a bind. If he tells the police where he was at the time of the murder, he may be convicted of solicitation and his wife may divorce him. If he doesn't, he may be convicted of a murder that he didn't commit.

Under your preferred system, if the man tells his attorney where he was at the time of the murder was committed, the attorney will inform the police. So the man has to decide, by himself, without any assistance from his attorney, whether to tell the police where he was at the time the murder was committed.

Anyone who has just been arrested for murder is under a great deal of stress, and people under stress tend to make stupid decisions. I think basic fairness, as well as a concern for not wanting to see innocent people convicted, dictates that an individual facing a dilemma like the one I've described should be able to consult with an attorney before deciding what to do.

It seems to me that any time you make an exception to the confidentiality rule, what you are really doing is making an exception to the right to counsel.
3.10.2008 3:31am
No Ex Qus:
"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."

:-)
3.10.2008 4:23pm
MrJustice:
Kenneth Almquist:

A good defense attorney would tell their client to admit the fact that they were with a prostitute at the time of the murder. It would be stupid to go through a trial, that may still result in a conviction, over adultery and prostitution.

If you are arrested for murder, and are innocent, any stress one may have is related to being falsely arrested. As such, the innocent person may want to consult with an attorney, but their innocence is all the less reason they would have for needing confidentiality. Do you mean to say the innocent person would want it to be kept confidential that he was innocent and evidence that would support his innocence, such as the testimony of the prostitute?

Confidentiality, for the most part, does not protect the innocent, but rather it protects the guilty.
3.10.2008 7:41pm
Vincent (mail):
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!
3.11.2008 3:50am
Michael Williams (mail) (www):
Additionally, in a world without attorney-client privilege it's non-lawyers who would suffer the most. Lawyers who go on trial would be able to represent themselves and hold all their secrets in their minds, but non-lawyers would be forced to rely on another person who could not be trusted to the degree one trusts oneself.
3.11.2008 12:01pm