Eugene Volokh posted about what he called a “classical ethical bind” for criminal defense lawyers at the Volokh Conspiracy. It produced (at this moment) 420 comments reflecting his readers’ views on ethics. The problem is that Volokh readers, while there are far more of them than Simple Justice readers, do not necessarily reflect the right audience for this test. It’s an ethical conundrum for criminal defense lawyers, not lawprofs, law students or Biglaw transactional lawyers.
So, I reproduce the post below, and wonder how criminal defense lawyers will react. Is there any ethical issue at all, and if so, where do you come out.
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.
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I have not read Eugene’s blog and guess it would take all weekend. As lawyers, we each should be thinking this through for ourselves, because legal problems are personal problems. Often they are spiritual problems. In my opinion.
We do not advocate committing crimes, as you mention in your Simplistic Assumptions post. We defend people who commit them.
An analogy that you refer to. I read somewhere that under these circumstances, priests advise penitents that they must make amends, by turning themselves in, and confessing, to civil authority, and this is what they are trained to say in the seminary. [Isn’t this the obligation of the psychiatric profession, as well?] I am venturing to guess that the Act of Contrition, the prayer, is not sincere, and the remission of the sin not complete, unless the evil impact of the sin on others is rectified. I do not know much else about the priestly dilemma — I do not know, for example, whether and to what extent this is supposed to impact divine forgiveness — except that it is an old dilemma. Seems to me there was a Bishop Sheen program about it that I happened to catch part of. [Recently, on cable. Don’t start.]
But it is one starting point for thinking through the ethical problem. His confidence would be safe with me, but it is a burden remaining on his shoulders. I would advise him that he must turn himself in. I would be happy to represent him. I would also advise him to practice his own religion, starting with attending services, today and while in prison. I have given this advice before. If he doesn’t have a religion, I would advise him to find one. This is because it is a spiritual problem problem — seeing the difference between right and wrong, and then, with his free will, and in an act of will, acting the right way, instead of the wrong way. Pray for the strength of will if necessary. Psychiatric counseling may assist, but it is more a spritual illness than a mental illness. In my opinion.
But the burden of the confidence would remain on my shoulders. I guess I would do what I am asking him to do — practice my own religion. Keep him in mind. Say some prayers for him. Request that he be given the divine strength of will to turn himself in. Without divine strength of will, could I do what I am advising him he “must” do? Could I turn myself in?
Walk around in his shoes. Prison awaits. Imagine the fear. Without strength of will, divine strength of will, could any of us do it?
Seems to me it’s not a conundrum for criminal defense lawyers at all.
I blogged about this earlier:
http://www.windypundit.com/archives/2008/01/attorney_client_privilege_wors.html
That article has a link to a great Chicago Tribune article by Maurice Possley that gives a lot of detail, including how the police ignored evidence about the real killer and the steps the attorneys went through to make sure they could eventually reveal the truth.
For whatever it’s worth, the real killer may not have been convicted, but he wasn’t a free man either. By the time of his confession, he had killed two cops, a crime for which he spent the rest of his life in jail…which means that as a practical matter, he would not have been harmed if his confession were revealed.
What a twisted case. Something is very wrong here, but I can’t imagine how the rules could have been changed to fix it.
Windy, the rule is not the conundrum. I would follow the rule. I would not reveal the confidence. But I would advise the client to turn himself in. If he does not, there is nothing I can do, under our laws.
For me the confidence would be a burden, because, as Scott points out, the rules create a very troubling result. But I would deal with it. The point of my post is how.
But the point of your post is not all that different. There is something happening here coming here from a different level than our man-made laws. Chickens come home to roost, for good or bad. We do not have the insight to predict when, or how, they will come home.
Come to think of it, I wonder about Wilson, since 1982. How was he?
Kathleen, I hadn’t read your comment when I wrote mine. I was just responding to a line in Scott’s post by suggesting that most defense attorneys would know their duty, even if they felt bad doing it.
Like you, I too thought of how a priest might handle such a situation in a confession, and I agree that he would urge the penitant to confess. I don’t think that will work for a lawyer, however, because he’d be urging a client to take an action detrimental to his legal interests just because it would make the lawyer feel better.
As for Wilson, he murdered two police officers in Chicago and spent the whole rest of his life in prison. He sued the city, claiming he was tortured by police. Others came forth with similar claims, and the resulting scandal is still playing out in local politics.
Despite all of that, however, he never took the simple step of confessing and freeing Alton Logan.
Oh yeah now I see about Wilson.
The burden I refer does relate to feelings, doesn’t it? We care about the innocent not being convicted, and we hate to see people get themselves into the trouble they do. But we have the ethical obligation of zealous advocacy, of one client. The innocent guy is someone else’s client.
The advocacy happens after face-to-face advice, in confidence, about a range of options, each more or less detrimental to the client’s legal interests. In this case the range is two. Turn yourself in. Or don’t. So, by definition, there is no “must” turn yourself in. It is an option.
Methinks Kathleen needs her own blog 😉
Some of us go through streaks. Especially when snowed in.
A real ethical dillema
In my career I’ve been blessed to help in securing the release of an individual who had been wrongly convicted of capital murder, and imprisoned for more than 16 years. As a result, I consistently have inmates and their families…
For jurisdictions that have adopted the ABA Model Rules of Professional Conduct, Rule 1.6 provides the following:
Rule 1.6: Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A 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;
(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 the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or 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; or
(6) to comply with other law or a court order.
I suggest that this problem would be completely solved by amending subparagraph (3) of subsection (b) to add substantial injury to another’s penal interest. Surely the penal interest of another is as worthy of protection as his/her financial or property interest.
I’m not sure how the phrase “in further of which the client has used the lawyer’s services” would impact this example. Does the clients confession to the lawyer of his past crime constitute using the lawyer’s services in furtherance of the crime? It certainly constitutes using the lawyer’s services in furtherance of something.
It would “solve” one problem, but at the expense of another. Your lawyer is trading off your confidentiality and freedom to prevent an injustice to another person. But this is the genesis of the dilemma. Since clients must be able to speak truthfully to their lawyers without fear that their lawyers will rat them out, consider what such a rule gives away. Some would agree with your value choice; others not. But as it stands, the rule prevents the lawyer from disclosing a clients prior crime, even if it means that an innocent man sits in prison.
But clients are already not guaranteed confidentiality if their acts constitute a substantial injury to the financial interests of another. Isn’t another person’s freedom as important as his financial interest?
That’s a great question. Anybody want to explain/justify the ABA position on why financial interests trump freedom? Or is that just indicative of the ABA?
I had this conversation in an email exchange with an old friend that I used to practice with and who is now an ethics and constitutional law professor at a major law school. When I raised the question of why is protecting the financial interest of another more important that the freedom interest of another, the conversation ended abruptly. I guess today’s law students do not ask such questions.