Some reactions to my "a classical ethical bind for lawyers" post suggested that the ethical question was easy: The lawyers whose client had said he committed a murder should have revealed that information in order to free the person who was wrongly imprisoned for that murder, even assuming that would have meant disbarment or long-term suspension for violating lawyer-client confidentiality. If they didn't do this, they'd be acting unethically.
But even assuming that the underlying confidentiality rule is unsound, surely it's not so clear that people have an ethical duty to save another's life at such great expense. My guess is that if you spent $10,000, you could likely save the life of some sick child in Africa; if you spent $50,000, I imagine this would be even likelier (and perhaps the number is actually a lot less). If you donated a kidney — which will expose you to a roughly 0.03% risk of death, and a slightly larger but still very small risk of complications — you could dramatically reduce a roughly 20% or more risk of death for someone on the kidney waiting list (since that's how risky it is for him to be on long-term dialysis while he's waiting for a new kidney). If you find someone who's near the tail of the waiting list, you might reduce a still greater risk. Yet most of us wouldn't say, I think, that it's really your ethical obligation to run such a risk, or bear such a cost, to save a stranger's life.
Likewise, I don't think that it's really your ethical obligation to lose what is likely hundreds of thousands of dollars in future income, by giving up a profession that you spent over a hundred thousand dollars to train for. You might deserve credit for making such a choice (assuming we conclude that the ethical rule you're violating is indeed unsound). But that's different from saying that you have an ethical duty to make that choice.
Related Posts (on one page):
- Duty to Save a Wrongly Convicted Person at High Cost?
- A Classic Ethical Bind for Lawyers:
1) There is no certainty of the bad outcome that you wish to avoid. Just because someone is on a transplant list or sick in Africa doesn't mean they'll die. Obviously, thousands and millions of people respectively survive those situations. In fact, there's even a chance your contributions would change nothing.
The lawyers in question, on the other hand, knew that a man was going to prison who was innocent.
2) There is nothing unique about the ethical actor in the kidney or Africa examples. (Almost) anyone can donate a kidney and help someone on a transplant list, and anyone can contribute enough money to help African children.
In the case of the lawyers, once the client refused to come forward himself, they were the only ones who could help free the man in prison. This creates a unique duty.
Really, the most straightforward analogy is that of a witness to a crime. If I witnessed a crime and refuse to come forward, despite knowing the wrong man has been convicted and sentenced and I can provide exonerating evidence, I am acting unethically. (This moral duty doesn't change if I am a victim of intimidation either. I'm unaware of any persuasive argument that duties cease to exist once they cause a cost to fulfill.)
But, more to the point, this duty doesn't change if I were to receive hundreds of thousands of dollars from the truly guilty man to keep quiet. That much should be clear. But here, Volokh uses the loss of future wages as a reason to maintain silence.
Well how is that any different from receiving payment to keep quiet? Either way, we are talking about future payments of money for inaction. But in my scenario, most of us would agree silence is repugnant. It should be clear to all that in both scenarios, silence is unethical.
(BTW, all of this avoids a very plausible Kantian argument that all people have a duty to each other, in which case Volokh's point is moot.)
It was easy: the lawyers did exactly what they should, and the rules they operated under are exactly correct. Our system of justice can't work if defendants can't confide in their lawyers because the lawyers are essentially agents of the state. And that's what they would be if they had a duty to operate against their client's interest in the name of "justice".
Similarly, it would be wrong for the lawyers to disregard their professional ethical responsibilities to satisfy their personally held ethics. When they took their client's case, they were agreeing to represent his interests. There is no honor in going back on their word by selling him out. If they are so conflicted, they have no business in that profession, and they should get out. And in that case, they would have a responsibility to forgo their investment in their career, whatever it cost them.
There only situation in which it even makes sense to consider seriously breaking privilege is one in which the client reveals information such as the location of hidden evidence or surveillance tapes or audio recordings that would provide independent corroboration of the innocent person's innocence.
That's one of those platitudes that is often uttered but seldom examined. Is it really true? Criminal clients frequently don't confide in their attorneys as it is, in part because even under our current system a defense attorney is constrained in what kind of arguments he can make if he knows too much. How would some attorneys in some limited cases coming forward with info materially change things? I don't think it would. You obviously disagree, but the fact is it's a point that is at least unclear.
This is completely the opposite of how law and ethics operates in most other important areas of conflict other than than legal ethics. In military law and war crimes, a soldier is prosecuted if he fails to use his personal ethics (or a reasonable person's ethics) if the result would be him acting immorally or carrying out an unethical order.
Likewise, our entire system of government in part relies on the fail safe of personal oaths to the Constitution. We count on the President, individual Congressmen, and judges to exercise their personal ethics of loyalty to the Constitution, even if it might mean following a particular instruction or law, or even where there is no proscribed ethical standard.
Bill Poser:
If you'd ever had the good fortune to work with or know well individuals in law enforcement, you would know that almost none of them would go forward with a prosecution of an innocent man with this kind of information pointing to a different guilty party. The ethical point here isn't to incarcerate the guilty man, but to ensure that the innocent man doesn't lose his freedom.
But assuming he's truly innocent, it seems the harshness of the result here has to be endured. The prospect of informing your criminal defendant client that the rules of confidentiality will enable you to speak frankly to each other so that you can provide the best legal advice and representation, oh but if you confess a really icky crime I'm gonna have to snitch you off, is not going to create a real tight attorney-client relationship. And even if you don't tell your client this he'll know it anyway. So forget about candor. You won't ever get it. Same goes for trust.
(1) Defense lawyer A hires his own lawyer B (creating a legal duty of confidentiality between A and B). Defense lawyer A confides in B that one of his clients, who shall remain nameless, confessed to committing a murder that defendant C has been convicted of.
(2) Lawyer B goes to Defense Lawyer D, who defended C at trial, and the relevant DA/prosecuting attorney and explains that he has an anonymous client who has an anonymous client that will confess to the murder in exchange for immunity. The prosecutor cannot force B to give up A's identity (since B is A's counsel at this point) nor can she simply ignore potentially exculpatory evidence, now that's she's heard it. Also, presuming she's after actual justice and not simply convicting anyone for the crime, she will be concerned enough to grant immunity for testimony.
(3) Prosecutor makes a deal with B, as A's counsel, for immunity in exchange for testimony. B relays it to A, A relays it to his client.
No breach of confidentiality has occurred, since the prosecutor can have no idea whatsoever who A is, let alone A's client.
Whether or not this scheme works, it is at least incumbent on the defense attorneys to try to come up with something that will save the innocent without losing their jobs.
Just because some defendants might feel it is best to be less then forthcoming to their lawyers in some cases hardly means that it's true in the norm. Most defendants are going to be further ahead to confide in their representative, rather than trying to determine which pieces of the puzzle their lawyer needs to effectively mount their best defense.
Well over half a million children die each year of measles; measles vaccine costs only 26 cents per child.
The use of insecticide-treated bednets is one of the most important strategies for controlling malaria. In countries where malaria is prevalent, child death rates could be reduced by about 25 to 30 per cent if all young children in malarial areas were protected by treated bednets at night. These bednets cost under $5 each.
About 1.6 million people die each year of tuberculosis, a disease that can usually be cured with drugs that cost under $20. But only about half of the world's TB patients have access to the required drugs.
Diarrheal dehydration takes almost 2 million children's lives each year, but a foil packet of oral rehydration salts, stirred into a liter of clean or boiled water, and spoonfed to an afflicted baby, usually saves the baby's life. The cost of a packet of oral rehydration salts is on the order of ten cents.
Now, this doesn't mean that every time you give ten cents to UNICEF, you've saved a life. UNICEF needs to distribute these interventions widely, so that they are available for use at the appropriate time. Most children vaccinated against measles were not going to die of it, so we don't save a life with each 26-cent vaccination, but if we save a life even once in 10,000 vaccinations (It's probably a lot better than this), it's still only $2,600 per life saved. In the case of TB, the cost of each life saved is much less, since the drugs are administered only to people who already have the disease.
And while people may not be absolutely compelled by general ethics, (As opposed to professional 'ethics'.) to save others at great cost to themselves, I'm tempted to say that only a lawyer would expect the refusal to do so to be seen as admirable, just because lawyers themselves had set up a system of rules demanding it.
"An attorney has no duty to avoid the incarceration or execution of a person they know to be innocent, but are duty bound to see the real killer protected. One of the significant reasons for this choice is because they paid a lot of money to go to school and stand to possibly lose some of their income if they speak up. And by the way, there are lots of poor children in third world countries."
Let's hear it for this high-minded "ethical" decision!
Seriously, if you were caught in this sort of situation, isn't that a sort of golden opportunity? Save the guilty man, do it loudly in front of the press, and move from being a defense lawyer to a politician. Or a judge, if you're in one of the areas that elects that position. Who'd have a better reputation for upholding justice, some guy who hewed to his ethical standard while an innocent man went to jail, or one who kept that innocent man out of jail even at a personal cost?
I'll also point out that, while attorney-client privilege is important, I haven't seen any arguments for why that necessarily overrides every other consideration. Specifically, while lawyers have a responsibility to their clients, and that's important, they also have a responsibility to the greater public, as a consequence of holding a franchise to practice law. Having a few guilty people not get a higher degree of legal representation (and let's be honest, innocent clients aren't threatened by this sort of thing), is that really worth sending other innocent people to jail?
1) There's no certainty that the lawyer's statement would free the other defendant. Another person confessing does not mean that the prosecutor will give up. There's a chance the disclosure would save no one.
2) If you don't donate your kidney, someone will die. That person is unique, you just don't know who he or she is. And if anyone can contribute enough to help save an African child, have you?
I think there are really two questions here: First, is there a moral line that supersedes an attorney's duties under the canons of ethics. Only if the answer to that question is yes do we have to talk about where to draw the line.
That goes to *preventing* future death. Lawyer may disclose.
I would like to touch on this:
This paragraph bothers me, and I think the lawyers and law students who read this blog would serve themselves well by taking a moment to understand why.
Surely those of you in the legal profession or training to enter it realize that the legal community has a tremendous image problem. No, wait... let's be real about that: people hate you.
And Prof. Volokh has unwittingly uncovered the kernel of "why" people hate you. Quite simply, you always put yourselves (and your money) first. Even ahead of another human being's life.
That is unambiguously despicable. And it is equally despicable to sit and smugly ponder the matter, as if there were a truly difficult question here, while scarcely considering the plight of the innocent man whose fate depends on how much some other guy's lawyer loves his money.
Ethics is taught, ineffectively, rather than character, effectively. Robert Heilbronner once explained, using the example of artihmetic, that once you learn that 2+2=4, no amount of saying 2+2=5 will make it so; that once you master logc, it masters you. It becomes your process of thought. It manufactures courage -- The courage to stand up to do what needs to be done.
Understanding that that innocent condemned to jail lives his life as acutely as you do should screw your courage to the sticking point.
Now, re-ask the question.
But if I were placed in this position I can't see how I'd be willing to continue working in the field if I couldn't do everything in my power to keep that innocent man out of jail.
So a career change (and the associated financial uncertainty) would be in my future no matter what. It would not be a cost of saving the innocent man -- it would be the cost of having heard the criminal's confession in the first place.
Let me suggest an obvious solution: Set up a special court, whose only function is to clear the wrongly convicted, and which is flatly prohibited from passing on any information given it to prosecutors. As a back stop, extend the exclusionary rule to testimony before this court. And, THEN, when a method has been provided for lawyers in possesion of exculpitory information to clear the wrongly convicted without sending their guilty customers to prison in their place, this 'ethics' rule can be amended.
So, what went wrong? Was it sloppy police work that led the police to arrest the wrong man? Did the police stop investigating after the first (innocent) suspect was identified? Was there a mistaken eyewitness, perhaps one who had his or her shaky memory buttressed (or even changed) by how the police conducted a line-up, or how they showed the witness a photo array? Maybe the police, or even the prosecutor helped shore up the testimony of an otherwise shaky eye witness by "preparation". Or maybe it was the Prosecutor, who decided to take shortcuts in order to help his conviction rate. Most county prosecutors are elected, and it's not good for the next election to be percieved as letting criminals go. Or maybe the innocent suspect's Court-appointed lawyer (if the suspect made less than a good six-figure income, he almost certainly could not afford the $150,000 or more it would cost for a decent criminal defense attorney to prepare and take a capital case to trial) knew that the $45 an hour or less that the County was going to pay him just wouldn't cover his office overhead, much less provide him a living wage, so he just couldn't put forth the time and effort that would be required to save a falsely accused man. Or maybe the Jury just had no conception of what "beyond a reasonable doubt" really means, or why giving that high a burden to the prosecutor is important. If this happened in Texas, the Court is barred from giving the jury any instruction on what this means or why, as the Texas Supreme Court presumes that everyone seated on a criminal jury is reasonable. I've seen way too many jurors who just assume that if the suspect was arrested, he must be guilty, and jurors who are willing to convist on the flimsiest of evidence if the Defendant doesn't put on a decent case to provide an alternate story. So, was it one or more of these problems that led to the conviction of the wrong guy in this case? Or maybe one or more of a hundred other possibilities?
It ought to be obvious that something went wrong in this case beyond the failure of a couple of defense attorneys to breach their duty of confidentiality and rat out their own client, but for those of you who hate lawyers, or think that the silence of the attorneys in this case was despicable, all of those other problems are too easy to ignore, because you can scapegoat the lawyers. But the next time you sit on a jury, will you do your part? Will you hold the Prosecutor to his burden to prove guilt beyond a reasonable doubt? Will you play the Henry Fonda role in "12 Angry Mem"? Or will you just go along and convict the guy because if the police arrested him, he must be guilty?
And what if the facts were slightly different? What if the real perpetrator had not confessed to his defense attorneys, but to his Parish Priest at confession after Mass on Sunday? Would you be as quick to insist that the confidentiality of the Priest-Confessor relationship be broken? Would you be as quick to condemn the Catholic Priest (assume, for purposes of this hypothetical, that he's never been accused of mistreating his Altar Boys) for maintaining his silence in the face of an unjust conviction?
Those that put the onus and ethical responsibility on the two attorneys to report this confession must also hold them responsible for it's truth. If it cannot be proven their client actually committed the murder they could also be doing harm to our justice system.
It seems the ideal way for this to end is for the case to somehow be re-opened. Perhaps the attorneys could fund (and fund only) an investigation into the crime and see what comes up.
Of course this isn't directly analogous but I think Eugene's argument still misses the mark. The general argument about it being important for the system for clients to trust their lawyers is a better response, I think.
[1] You could make allowances for money spent on things like the expensive professional clothes that you need in order to be a successful Cravath partner. Otherwise you'd have to give up the position that allows you to keep giving money to others.
Huh? We excuse people all the time from their duty if the cost is prohibitive. Even the legal system manages to get this right.
Have you given away one of your kidneys? Are you giving away a hundred thousand dollars to save children in Africa? If not, then what do you say to people who say they "hate you" because you're "unambiguously despicable" by "put[ting] yoursel[f] (and your money) first"? And if you think you have no ethical obligation to save others at great expense, why are you so quick to urge such an expensive ethical obligation on the lawyers in this story?
I think you've stumbled into a bit of a moral mindfield here. By suggesting that you can or perhaps should trade-off dollars against human health or welfare, you've violated a pretty common moral heuristic: human life is sacrosanct, and so no price can be too high to pay to preserve or liberate it. It might be nonsense (given that people and governments routinely have to make those kind of unpalatable trade-offs), but it's socially useful nonsense. I think that's why you're getting so many outraged responses.
We established this system of lawyer-client confidentiality knowing that it would mean that sometimes guilty people will go free, and their lawyers will know that. When those guilty people go free, an injustice will be done for someone. If an embezzler goes free, others will not be compensated for their losses or someone else will have to pay them. And in abstract, we understood that one of those injustices is that sometimes innocent people would be convicted for the crimes of others.
It is not perfect, but it is better than the alternative.
Nessuno argues that this requirement to put professional ethics ahead of personal ethics is opposite from the ethical requirement in all other fields, but that's simply not so. We expect soldiers to say no when they are commanded to do something that would clearly violate the ethics of war—to torture or kill nonviolent prisoners of war, gratuitous murcer of unarmed civilians, initiating a new attack after a cease-fire or victory has been declared. If there is a conceivable valid military goal advanced for the order, they are prohibited from speaking up. We expect people in government to become whistleblowers if their colleagues are gaming the system for personal gain, not simply that the policies or actions of thir colleagues will advantage some groups of people over others—because that's often the case, even for legitimate actions. Soldiers cannot refuse orders because some enemy soldiers might get killed. Government employees are expected to act only when others are prohibiting the proper functioning of the system.
By contrast, maintaining lawyer-client confidentiality has been determined to be necessary to the proper functioning of the system.
However throwing in the future earnings of the lawyer—or even the future clients he might save through his lawyerly skill—muddies the question. Even if he were to quit the profession over his distress at sending an innocent man to jail through his inaction, his ethical obligation to keep the confidences of his client would remain. To do otherwise would compromise the confidentiality that all others in the profession share with their clients.
What Volokh argues here, however, is insupportable. It takes us into the realm of Buffy the Vampire slayer, season 3, where Faith argues that it is permissible to ignore the accidental killing of a human because of all the lives the Slayers will save by fighting demons, something they wouldn't be able to do if they were in prison for manslaughter. That argument didn't hold in Buffy and it doesn't hold when Volokh argues it here.
I have read this blog for some time. What you would do this innocent man, this one individual, is what Germans did in WWII on a larger scale when they turned their backs on those taken to concentration camps. You would look after yourself and preserve yourself at any cost. You are no different. What's worse is that you don't see it.
Your last argument is the most honest. Why should I sacrifice my career for this individual? Now you are getting to the crux of the situation. When it comes down to this stranger or myself, I am going to choose myself. I realize that since we are not faced with making such a decision it is easy to say that we would do the ethical thing. However, if I were faced with such a decision and I ended up doing nothing I would not attempt to rationalize my actions and believe I was acting ethically.
Clearly, you must stop and help the pedestrian in either case, regardless of the financial or legal trouble it could cause.
I believe that Brett Billmore has come up with the best solution. In fact we already do something similar to this in cases of national security. The judges on the intelligence court review the intelligence information in camera to determine if the information would be exculpatory and act accordingly.
"Mr Prosecutor, while you are considering a grant of immunity for testimony, be aware the the individual is already doing life for a later double-murder, and your granting him immunity on the earlier crime will NOT get him out of the life sentence he is serving now, it will NOT release a murdered from prison."
I would also add 'Have that meeting with the judge present also ( as well as all counsel ), and have your surrogate, whom you chose carefully for his reputation with that Court, emphasize 'I do not bring this to you lightly or at random, and I am convinced that if you pursue it, you will see the relevancy. You know me, if I have earned your respect in the past then take me seriously now, I did not come here to waste your time' etc etc.
As Oren laid out, this could be done in a way that preserved priviledge all the way around.
If the prosecutor declines, then the defense attorney is at least aware of the situation, and it is now on him to proceed with it.
Someone tell me what's wrong with that, if anything ? No priviledge broken, potentially exculpatory statement brought to the attention of counsel for both sides.
Also - the PD's stated 'they had a means to contact the Governor, in case the sentence was death they would have'. Well, why didn't they do that for 'a mere life sentence' ??? Personally I don't see that much difference between the two sentences, and I would rather have death, myself.
Now, the attorney is still a human being and his ethical concerns could override his particular devotion to becoming an instrument of his client, but as Volokh says, there are costs to this and I don't think it's an obligation for everyone to give up a lot of money and opportunities just to save another human being. I mean it should not be a legal obligation, in my worldview it is though a Social obligation and I really could not see myself associating with someone who let an innocent man go to jail if he could stop it.
It has generated over 500 posts, which is prima facie evidence that it isn't straightforward or obvious in any manner.
Obvious things don't generate this level of controversy, so just stop claiming that it is.
By this reasoning, Massachusetts' system of justice doesn't work.
Besides, lawyers are already allowed other exceptions; this very case hinged on it not being a death sentence, since they're allowed to tell if someone's life in danger. How is allowing an exception for death sentences fine, yet allowing an exception for life imprisonment causes the total breakdown of the system?
Likewise, I don't think that it's really your ethical obligation to lose what is likely hundreds of thousands of dollars in future income, by giving up a profession that you spent over a hundred thousand dollars to train for.
I asked this question in yesterday's thread, but since that's probably dead I'll repost it here:
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 (as they will be this coming Sunday evening on 60 Minutes)? Wouldn't it be more plausible 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.
I highly suggest you look into the philosophical writings of Peter Singer. He believes that we do have that obligation and donates the majority of his yearly income to just such activities, though I believe he still has both kidneys. I'm not going to say that his stances are right (I certainly don't agree with him as I'm not a utilitarian), but his arguments do make quite a lot of sense.
It was easy: the lawyers did exactly what they should, and the rules they operated under are exactly correct. Our system of justice can't work if defendants can't confide in their lawyers because the lawyers are essentially agents of the state. And that's what they would be if they had a duty to operate against their client's interest in the name of "justice".
I sincerely hope Mous is being satirical here, but I don't think he or she is.
An apparently innocent man went to prison for 26 years. Yes! The system worked perfectly! This was "exactly" the correct outcome, and justice was served!
No problem. Nothing to see here. Move along, move along ...
I also find it amazing that some who would otherwise say that confessions should be looked at with suspicion are very quick to say that the confession in this case must be believed and that Alton Logan is definitely a wrongfully convicted innocent man.
It should be noted that the murder for which Logan was convicted was linked to the murder of three police officers killed in the line of duty (in 2 separate incidents) in less than a week.
On January 11, 1982 two people robbed a McDonalds. One of the robbers used a shotgun to fatally wound a security guard. Another security guard was injured. The robbers ended up taking no money but did take the security guards' weapons.
On February 5, 1982, one of the stolen weapons was used to kill a police officer in the line of duty. Four days later, two other police officers were killed in the line of duty.
I can safely say without any more facts that this undoubtedly led to one of the bigger manhunts in Chicago police history.
Three eyewitnesses at McDonalds identified Logan as the shooter and Edgar Hope as the other robber. Hope was also arrested for using one of the McDonald's weapons to kill the police officer on February 5.
Two other people were arrested for shooting the other two police officers. One of these people, Andrew Wilson, is the one who told his attorneys that he, and not Alton Logan, was the triggerman at McDonalds.
Now for some facts that were not widely discussed. Hope told his attorneys that Wilson was his confederate, not Logan. Based on this Hope's attorney told this to Wilson's attorneys, who confronted him--and leading to the ethical dilemma at issue.
Hope's attorney also gave this information to Logan's attorney. However, Hope's attorney would not allow Logan's attorney to interview Hope.
At trial, Logan's attorney was based on what I have heard referred to as the SODDI defense (Some Other Dude Did It). To that end, he tried to get the trial court to admit the shotgun into evidence. The shotgun had been found while police were tracking down Wilson for officer shootings. The trial court refused to admit it into evidence, even though ballistics evidently showed the shotgun was the murder weapon in Logan's case.
I am assuming that the police would have every incentive to link Wilson to the McDonald's robbery-homicide--after all, they were charging him with killing two police officers. I am guessing (though I have no way of knowing) that some sort of photo array (or at least pictures of Logan and Wilson) were shown to the three eyewitnesses and they picked out Logan instead of Wilson. But that is just a guess.
Is Logan factually innocent? I don't know--in large part because I do not know how credible the 3 eyewitnesses were. If one of them knew Logan prior to the McDonald's robbery (unlikely) that makes their identification more credible; if, as I said above, they chose Logan and not Wilson out of a lineup or photo array, that would make their identifications more credible. If they were only shown one picture and Wilson and Logan strongly resembled each other, that would cast doubt. But I don't know those things, since the articles I have found do not have that information.
Some comments were quick to dismiss any dollar figure as an excuse for protecting the lawyer's employment, but can someone really stretch that into sacrificing 26 years of a person's life? Given the choice between sending an innocent person to jail and sacrificing 26 years of your life even if you deserved the penalty--could you do it? Could you deprive your family of your presence? Could you force such embarrassment on your friends and community for your mistake? Hopefully some readers are at least trying to tell themselves they would make such a sacrifice, but let's not lose the perspective that this is the client's choice, not the lawyer's.
There's no point in a right to counsel if you are afraid telling your counsel the truth will hurt, not help you. What do you do when the truth needed to get off of one criminal charge is that you really committed a different crime (for which someone else is on trial)? If we think that people have such tremendous obligations to protect other people (and collectively, we don't), then the onus here is on the client much moreso than the lawyer, who hasn't done anything wrong and doesn't deserve any punishment for someone else committing a crime.
Seriously? EV, you stepped all over yourself on this one. I'm a little disappointed.
Oops, you're right. Long day, late night.
In the case of the African child, there are many children and many possible donors, so any obligation that exists has to be split up among the donors. A good argument could be made that the obligation falls on their government more than on you; it needn't be split up equally.
But both the kidney and child examples miss another point. Proximity and number of people who can help are close to the reason, but not quite right.
Harm to yourself is indeed a legitimate reason not to help someone. It can't be any other way, or else you would need to give all your money to starving Africans.
However, consider another scenario: A normal person could help someone without cost to himself. If so, he's then is obligated to help them, right?
But now, this normal person signs a contract (which in this hypothetical, is legal despite its bizarreness) stating that if he does that, he has to burn a big pile of money. The next time he runs across someone he can help without cost to himself, he says "since I have to burn money to help that person, it is with cost to myself, so I don't have to help them".
Can he be released from his obligation that way?
Of course not. And that's the situation the lawyer is in, only the pile of money is called "future earnings he doesn't get after being disbarred".
(This is complicated a bit by the fact that the lawyer wouldn't even have learned about the information if he had chosen a different job, but moral calculations don't balance out that way.)
If you donated a kidney — which will expose you to a roughly 0.03% risk of death, and a slightly larger but still very small risk of complications — you could dramatically reduce a roughly 20% or more risk of death for someone on the kidney waiting list (since that's how risky it is for him to be on long-term dialysis while he's waiting for a new kidney). If you find someone who's near the tail of the waiting list, you might reduce a still greater risk. Yet most of us wouldn't say, I think, that it's really your ethical obligation to run such a risk, or bear such a cost, to save a stranger's life.
Why don't you ask Virginia Postrel whether she considers it worthwhile?
EV, you keep using the example of "a stranger," Logan was a flesh-and-blood human being whom the two attorneys knew -- they apparently attended his trial! Like it or not, rational or not, most people would go to greater lengths to save the life of a known, real person in the same room with them than they would to save an unknown, abstract, statistical human being ten thousand miles away.
For an attorney it is all an abstract game where nothing matters but the game...
...and it really is all about the money.
But the rules were designed with little thought about negative effects on third parties. In this case, if there is any truth to the "confession," an injustice has occurred and it's too bad Illinois didn't have the Massachusetts rule. Perhaps bar associations should consider this- although there is much to be said against it.
However I do not consider the "right" answer for lawyers to make up their own personal set of rules, flouting the law whenever they see injustice. In almost every case, you could advance someone else's position by revealing your client's confidences; who is to say the Al Pacino meltdown in "And Justice For All" is not "justice?"
In the present case, if the lawyers had revealed the "confession" to Logan's attorneys, it would have been inadmissible in the trial. The defense team was already pointing the finger at Wilson. Indeed, this site says Wilson "confessed" after his own lawyers asked him if he had committed the crime. So, without the confession being admissible, revealing the fruits of their interrogation would have added nothing to Logan's case.
Because the client is a criminal and a murderer, already definatively known to be an amoral monster? It's not so much that we don't blame the client, as that blaming the client goes without saying.
It's the supposedly ethical attorney being complicit in this evil that we thus turn our attention to.
No, I put my client's interests before the interests of a non-client.
And I assume you've now followed Professor Volokh's suggestion and donated a kidney to a stranger. Otherwise, you are putting yourself first.
While I have never had need of the attorney-client privilege of confidentiality (and hopefully never will), I believe I understand it's importance and have no desire to marginalize it.
*BUT*......,I also find it immeasurably abhorrent that some here *seem* to take the attitude of "That sucks for the innocent guy".
How anyone could (for all intents &purposes) posit that an innocent man should have his life inexorably altered for it's duration due to some systemic flaw and nothing be done.....well, that is completely beyond me. And is exactly the type attitude that helps permeate old saws such as......
- Q: What's 50,000 lawyers at the bottom of the sea?
- A: A good start.
All the legal professionals in the crowd......please keep your kidneys and all your other body parts. Keep your job and your money.....I don't give a lick about all that. But the very fact that "y'all" *ARE* the professionals in the crowd makes it incumbent upon you to help develop/define a mechanism that would *protect the innocent* in such situations. If you do no other pro bono work for the remainder of your career, please do some for this purpose.
I agree the attorney's ethical duty is not so clear. So, is it clear that the underlying condfidentiality rule is ethically sound? Is it clear the attorney should be prohibited from saving the life?
Eugene Volokh: "Likewise, I don't think that it's really your ethical obligation to lose what is likely hundreds of thousands of dollars in future income, by giving up a profession that you spent over a hundred thousand dollars to train for."
Does an attorney who went to Harvard Law have less of an obligation than an attorney who went to night school? Harvard costs lots more than night school.
Does a partner at a white shoe firm have less of a duty than a struggling lawyer with his shingle hanging in a strip mall? The partner makes lots more and will likely lose much more future income. How does their ethical duty differ?
Does an established and tenured professor of law have less of a duty than a recent law school grad? The professor stands to lose much more when we consider the time and effort he expended in building his professional and academic standing.
You suggest hundreds of thousands of dollars may tip the balance in favor of keeping quiet. OK. So, can you tell us how much money tips the balance in favor of the guy in prison? What is it? $500? $200K? $100K? $50K? $25K? $10K? $2? $1?
Should we also factor in the lost wages of the guy in prison? Suppose he was making $1 million per year? Does the attorney have more of an ethical duty to save him rather than the unemployed laborer?
I agree that if we can quantify questions it is often easier to deal with them.
"Our system of justice can't work if defendants can't confide in their lawyers because the lawyers are essentially agents of the state."
Can clients confide in Massachusetts? Does the our system of justice work in Boston?
I think DiverDan also included the court as sources of the error.
Assuming the facts recited are accurate, the last graf above certainly supports that conclusion.
But, digging a bit deeper with no more basis than reasonable assumptions based upon ordinary lawyer's experience and knowledge of criminal courts:
Would a court sua sponte refuse to admit the murder weapon in a murder trial? I doubt it.
Therefore prosecutor likely opposed its admission.
Why would a prosecutor oppose admitting what "ballistics evidently showed" was the actual murder weapon?
How could what was evidently the murder weapon be irrelevant or more prejudicial than probative? What was the basis for not admitting the weapon into evidence?
That's what's fishy about the case to me.
The legal system sets up rules for justice in wholesale, not retail. What I mean is that every single rule of law can, in the right circumstance, lead to injustice. The attorney-client privilege does this every day. In the civil cases I handle, there is probative evidence which never sees the light of day because it's protected as privileged or work product. In the short run, there's no doubt that this potentially leads to injustice. In the long run, those rules may make the legal system function better.
This case presents an extreme example. As I see it, the issue is whether there should be an exception to the privilege which covers the situation. Instead of arguing the merits of this particular case, it might be more helpful to avoid the problem in the future. Brett has proposed one good idea, as has Oren. But if someone were to draft an exception to the rule, what would it look like?
I am rather surprised Prof V posited such a weak analogy to begin the discussion, and equally surprised another legal professional follows it up with an equally weak supporting statement.
There is a WORLD OF DIFFERENCE between an African child who 'naturally' (at the hand of 'God'?) acquires some bodily malfunction that threatens his/her life vs an innocent man being convicted of a crime due to some fallability in a legal system designed by the hand of man.
At this point in time, it is impossible to prevent all manner of life threatening 'naturally' occurring disease processes. It should not be so to insure an innocent man doesn't pay as dearly for a 'created' process.
You're right about the priest example not being addressed. The only distinction I can see between the confessional and the attorney-client priviledge is that the former functions entirely to allow Catholics to confess their sins and thus be absolved of them, whilst the justice system has the aim of securing, well, justice, of which maintaining the attorney-client priviledge is only one aspect. So a priest violating his oath poses a greater systemic threat to the confessional system than a lawyer breaching the attorney-client priviledge poses to the justice system.
As for the doctor example: that's a pretty weak dillemma, given that it's a choice of vigilante behaviour vs. allowing the law to take its course.
A lawyer's primary obligation in our adversarial system is to place the client's interests before all other persons' interests. Other systems of law exist where a defense attorney's obligation is to the government or to the court. These systems generally subjugate the interests of the accused and afford little protection from prosecutorial or governmental misconduct. In contrast, America has chosen the adversarial system in the belief that it is the best mechanism by which to simulatenously reach the truth while protecting defendants' rights.
The solution to situations such as this must be made at a structural level. Brett Bellmore's suggestion of a tangential system to correct oversights like this would be a good solution to this problem. Clearly, there are frequent convictions of innocent persons. That is why programs such as the Innocent Project exist. There is no reason that we must abstain from finding a system that can address these issues.
However, as the system currently is set up, these public defenders' duty to their client is supreme, even to their own interests, morality, or ideals. It is part of the client's right to counsel, and that right applies to guilty people the same as it does to innocent people.
If a priest breaks his sacramental seal, then everyone stops going to confession, and end up in Hell. Pretty bad systemic outcome.
If a lawyer breaks attorney-client privilidge, future clients are likely to withhold self-incriminating information, and therefore get a substandard defence. Not such a bad systemic outcome, given that people who hold self-incriminating information are, most likely, guilty.
I'm not sure I understand what you mean by this. What makes the doctor's decision to let the patient die vigilantism if not the transgression of her professional code? In both instances, the professional is bound to a certain course of action that benefits someone who has committed a criminal act; that course of action also has the potential to put an innocent person at risk of harm. But I suspect few would question the doctor's decision to treat the patient.
Strip this trust away by permitting lawyers to rat out their clients and what will you get, systemically? It seems to me that all you'll get are clients, ones who are unwilling to face possible prosecution for the crime that they might confess to, refusing to confess to crimes for which someone else is being punished to their lawyers. How is that a bad result? Clients whose conscious pricks them enough that they wish to turn themselves in and face the consequences of their crime and set an innocent person free may decide to do so to their lawyers; those who aren't, won't.
What will be lost in that scenario? I'm no lawyer or law student so be gentle with me.
I'm not sure which of the common logical fallacies to invoke here, but I feel that your comparison surely must fit one of them.
Anybody could donate their resources to help someone in need, but the lawyer in the original scenario is uniquely situated to aid the victim, no? Doesn't the equation change a little when, say for example, an organ donor is the only person possessing a matching organ for a patient that is certain to die? As opposed to a situation where any organ would do.
I do not disagree that the interests of a lawyer's own client should be the overriding consideration. Where you and I diverge is with the notion that a lawyer's self-interest comes ahead of justice for the innocent.
My basic point was that it's pretty implausible for any harm to arise from saving the guy's life (given that execution or life imprisonment seem fairly likely outcomes), and it seems morally problematic for the doctor to effectively judge and sentence the man rather than let the law take its natural course (that's what I meant by vigilantism, I guess).
The problem isn't that it would stop defendants confessing to their lawyers. The problem is that the breach of trust would make all defendants, innocent or guilty, less likely to reveal potentially self-incriminating information to their lawyers, and so would receive a poorer defence. Bear in mind that self-incriminating evidence does not imply guilt. The result would be a decline in justice.
Not so implausible. He could go on to kill several inmates in his prison, couldn't he? Granted, refusing to save his life would still be a "judge, jury, and executioner" sort of vigilantism but I don't see how future harm caused by the guy is all that implausible.
No attorney (or at least none with a functioning moral compass) would be happy about having to maintain the client's confidence. It must have caused these public defenders angst because they remembered it for 26 years. But the solution is not to villify the lawyers, it is to provide structural mechanisms within the system by which the problem can be resolved.
He had an ethical duty to kill him. Have you not seen the man's paintings?
And why is protecting the guilty from punishment while knowingly allowing an innocent person to be punished a result that any libertarian, lawyer or not, could live with him or herself countenancing?
Or did you have something else in mind?
I guess it's not implausible, but I'm not sure of any cases where convicted serial killers have killed again in prison. I'd guess such people are held in maximum security joints, very closely watched, and possibly in solitary. But I have no real knowledge of the prison system.
Either way, it seems pretty harsh to expect the poor doctor to do the job that the legal system is, by your argument, unable to do (namely, stop the guy from re-offending).
Although it arose meaning that kinship inspires more sense of duty and benevolence than non-kinship, it has come to mean more generally that the closer the interpersonal (or even international, intercultural or interorganizational) relationship, the greater the perceived duty and the greater the impulse to benevolence.
I think that applies to how many analyze these hypos.
In Mr. Logan's case, I think that the perception of a convicted innocent is that "he could be me" or "he could be my son". That creates a sense of kinship which leads to the conclusion that vindicating Mr. Logan outweighs anybody's obligation to a stranger and self-confessed murderer.
I don't think that is a bad thing. I think it is just a fact of life. In this case I think it is a good thing.
Yes, please answer this question (preferably with citations).
Basically, there's loads of wrongful convictions that we know about, and it's likely that they're only the tip of the iceberg. Excluding the worst miscarriages of justice, the bulk of these will have been secured based on incriminating evidence. So logically, the existence of incriminating evidence doesn't necessarily imply guilt.
If the innocent client fears revealing to his lawyer why he was present at the crime scene, or why he phoned the victim hours before her death (because he fears this information being used against him), then justice suffers.
Even better, Public_Defender, I will use lawyer ethics and donate your kidney to a stranger. I feel so good about myself now having saved someone’s life.
You can alter the hypothetical however you like to create the same level of uncertainty as to the patient's future acts as the uncertainty that the revelation of the client's confidence will free the unjustly imprisoned man.
Is it correct that these costs will be imposed by other lawyers acting in concert through the state bar association? So, is it fair to say that lawyers can't violate confidentiality to free an innocent because lawyers don't want them to?
Is it further fair to say that lawyers in Massachusetts would face no such costs because other lawyers in that state would not impose it on them?
No, that is incorrect. These rules are enacted by each state's highest court, not by other lawyers. Bar associations provide model or proposed rules and opinions, but the only rules that matter are those adopted by the state's highest court, which have the force of law.
Um...that's what you want them to do to their client. Might not be your best analogy.
Elliot123 addresses this well above, but let me add an example. Suppose the lawyer is about to retire, or is otherwise planning to give up legal practice. Does that change the ethical obligation? If not, then the financial aspects are irrelevant.
I think EV's sentence here is not about abstract ethical obligations, but rather about how we expect people to behave. We tend not to condemn those who fail to fulfill some obligation that would be hugely costly - in large part because very few of us would do so. But that doesn't mean that, deep down, we are not aware of the lapse.
"I do not disagree that the interests of a lawyer's own client should be the overriding consideration. Where you and I diverge is with the notion that a lawyer's self-interest comes ahead of justice for the innocent."
While EV's questionable choice of justifications gave you an easy hook to express your dislike for lawyers generally, isn't the result the same here regardless of why the lawyer is doing it? And since you agree that the interests of the lawyer's own client are paramount, you must agree that the lawyers in this case did the right thing. In which case I don't really get your overall tone in this thread.
BTW, you might check out what most public defenders get paid before you suggest that their every action is about money.
Why no responses, guys?
"(1) Defense lawyer A hires his own lawyer B (creating a legal duty of confidentiality between A and B). Defense lawyer A confides in B that one of his clients, who shall remain nameless, confessed to committing a murder that defendant C has been convicted of."
Even within the existence of an attorney client privilege, I don't think lawyer A can disclose the information to B. The prvilege is the client's and so A can't disclose to B without the client's consent.
But, if the client consents, it's worth a shot, although as a practical matter the DA will be unimpressed.
Are you seriously quoting St. Thomas More/A Man for All Seasons to support the position that it's acceptable to break an oath?
It looks like you're pointing out paradox of human morals when it comes to immediate necessity. When a person has the ability to save a particular human life right next to him, he has a moral obligation to try to save them at any cost up to endangering himself physically. Knowing about large groups or distant people in peril only ethically requires what help to the extent that you judge is needed.
In fact, I think you'd agree that it would be rather silly for humans in general to care as much or more about someone they hear is dying on the other side of the world as someone bleeding to death in front of them. That same part of the human psyche impacts our moral imperatives similarly.
Also, ethical obligation is unfortunately dulled by quantity, as they say: Save one life and you're a hero, save a million and it's a statistic.
The issue is that these exceptions are provided the rules issued by a state's highest court. If the state, like Mass., enacts an extra exception then that changes the rules. In client consultations, an attorney should initially explain the attorney-client priviledge and the exceptions to it. So in Massachusetts, the lawyer should explain that the communications are confidential unless they come within one of the exceptions, including the life imprisonment/exoneration exception. The system works because both the attorney and client know the rules up front.
However, where no exception has been provided, the lawyer cannot unilaterally create it. The state's high court has the authority to determine when the client's interest is outweighed by the third party's interest. Massachusetts has decided one way, many states the other. If statistics come from Massachusetts that show the exception has a positive effect (difficult since the admission could not be admitted or compelled in the third party's trial) then other states will likely follow.
In this thread and the other, I've seen people claim that the current system is obviously optimum, and that the justice system would collapse and the sky would fall if lawyer-client confidentiality were ever breached. Given that the sky hasn't fallen in Massachusetts, and that the current ethics rules allow lawyers to "rat out" their clients if an innocent man is on death row, and that the current rules mandate what many of us consider an atrocity, why are so many people here denying the possible desirability of change? Why do some of you claim that the system is working "exactly" as it should?
If statistics come from Massachusetts that show the exception has a positive effect (difficult since the admission could not be admitted or compelled in the third party's trial) then other states will likely follow.
And if there's no difference in the statistics either way, you guys will just keep on truckin' with the ethics rules you have now? Jesus ...
I don't believe the system is working exactly as it should. Anybody who does is simply uninformed - convictions of innocent persons are rampant. I see this as a choice between two different flawed systems.
The current flaw is that an unsubstantiated confession of one person is not going to be presented to a prosecutor. Keep in mind that the confession would not be admissible in the third party's trial without corroborating evidence (under the federal rules of evidence, state rules may vary). If there is corroborating evidence, the third party's attorney should find it and get his client acquitted. Therefore, the flaw is minor because it has no practical effect.
The Mass. flaw is that it allows a breach of the client's confidence and could lead to more limited communication between attorney and client. That in turn leads to less competent representation. However, so far as has been presented here, the Massachussets program adds no benefit to trade in for this flaw. The admission is still inadmissible in federal criminal cases (I don't know Mass evidentiary rules for state criminal cases).
If there is shown to be some benefit from the Mass. program, then it should be adopted. If additional measures are taken so that the confession would be able to have an effect on the third person's trial, like that suggested by Brett Bellmore, then it should be adopted. But alone, it just adds more flaw without any actual benefit.
As an aside - I just saw a commercial for 60 Minutes tonight and this case is the headline piece.
So, ditch the adversarial system altogether?
Actually, why haven't we done that, and just gone to a jury-asking-questions, rather than lawyers-presenting-cases, system?