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?
I'd just like to point out that one logical conclusion of this argument is that abortion must be both legal, and ethical. Carrying a fetus to term is extremely expensive, both in terms of money &health risk to the mother.
Are you pro-choice or pro-life, Prof. Volokh? And if pro-life, how do you square these two viewpoints?
The "difference between a man of principle and honour and a worthless fellow" is that "the one adheres on all occasions, steadily, and resolutely to his maxims, and preserves through the whole life one even tenor of conduct. The other, acts variously and accidentally, as humour, inclination, and interest chance to be uppermost."
This example was expressed in terms of consequences of interest.
I, like any person with a fiduciary duty to perform, put my client's interests ahead of everyone else's. A key thing to remember is that the lawyer is a mouthpiece for the defendant - it is the defendant who is the party to the case. The lawyer is just the guy who knows the rules and tries to guide his client through the minefield.
Also - all of you people who are so upset over the idea that an attorney might want to make a living and take care of his family are ridiculous. Unless you are working in a self-sacrificing field for mere survival wages, you have no place to talk about someone else trying to make a living.
After all, it's hard to juxtapose this example with the premise that our procedures might allow a guilty client to go free lest we wrongly imprison an innocent one.
I am free to devote myself to whatever good causes I please, just as he is. But he did sign on for the 'justice in America' business, and if it isn't worth more than a few hundred thousand dollars to him, well, my opinion of his ethics is discounted by that amount.
++++
The objection, made several times, that in this case disclosure might not save the innocent (if he really is innocent) etc. is special pleading. There have been instances where lawyers kept silent about evidence that was more tangible than an oral statement. Bodies in a cave in New York State come to mind.
So the ethical dilemma is real and urgent, even if in this particular case not every fact is known and the eventual outcome of a different course of conduct by the defense attorneys remains speculative.
++++
As an ex-Catholic I am a little reluctant to enter the confidentiality of the confessional debate, but here goes anyway: I believe the priest is supposed to have a duty to urge 'his' murderer to shrive himself in both this world and the next. The 2 defense lawyers seem to have had no duty along that line and also seem not to have made any voluntary efforts either.
So, again, no parallel.
++++
In fact, I have been trying to think a a parallel ethical dilemma in some non-legal situation and I cannot do it. The closest I can come is the one we debated at Cardinal Gibbons High School: a Catholic doctor is faced with an obstetrical case in which his skill will allow him to save the mother or the child, but not both. Which does he save?
(My confessor would not say outright, the mother, but he made it clear that would have been his choice. In practice, as we know from the history of the Vienna Lying-in Hospital, many Catholic doctors came to a different conclusion.)
Well, yes, I would. Maybe quicker. The harm to Loagan exceeds the harm to the rules of even a church.
This is not a civil case or even a case where Logan got 2 years in prison. It can be argued there that the harm is limited enough to justify the lawyers' actions.
Here, Logan has served at least 26 years in a maximum security prison. Maybe longer. His life is destroyed beyond possibility of repair. The harm is the most severe possible except for execution itself.
Our oaths as lawyers are important but they are not the most important thing in the world. Not lightly to be broken but in extremity, they can be.
In 99%+ of the possible cases, the duty of keeping confidents must be maintained. But no rule or law devised by mere mortals can possibly be correct in all situations.
Isn't that the crux of the matter? Almost by definition, absolute laws will in some case lead to perverse outcomes. But that doesn't mean that those laws can be violated as and when one choses, even in the most extreme situations. Otherwise, they're not laws at all, and they cease to hold any meaning. This is a very difficult situation, and those who claim otherwise are, well, wrong.
Isn't the parallel that to protect an innocent accused, sometimes the guilty may be found not guilty.
It's not about harm to the Church, it's about harm to those who, in future, would feel uncomfortable confessing, and therefore would be destined to Hell. (in the eyes of the Catholic Church).
Speaking as a layman, that sounds way off base. As a defence attorney, your responsibility is to your client, no more, no less. Again, as a layman.
Sit in a cozy office and potificate yourself all you want. My bet is that you'd feel a whole lot different if it was you, or your children, that had to spend 26 years in prison for "the good of the system."
I disagree. I'd suggest it is the place of any citizen to question and discuss the rules set forth for regulation of the legal industry in his state. When a rule has the force of law, and makes it illegal for someone to offer information that would may free an innocent man, it is perfectly appropriate for people of any occupation or income level to comment. When instances of negative effects of that rule arise it is also perfectly appropriate to discuss the particulars of that instance.
Yes, one could abdicate responsibility by saying that, but it would not make it necessarily the case. Ethics isn't a set of rules, but a responsibility to apply practical principles and process consistantly across complex life situations.
George Washington had no ethical obligation to forbid torture applied to those the Hessians who left no survivors on the battlefield. He did forbid it. It probably shortened the Revolutionary War.
Then I giggle and tell him I killed a cop last year and am beside myself with glee because some innocent person has just been convicted of the murder and sentenced to life. I further provide sufficient detail of the slaying that he believes I did it.
I tell him I am relieved because now there is very little chance the police will ever find I did it, and, in any case, the convicted guy is black, so he probably did something to deserve prison. And since the burden of getting caught has been lifted, he will probably earn handsome legal fees as I expand my trading business.
Then we return to discussing the effects of Sarbanes-Oxley and the additional reporting obligations the parent company may have. Before I leave, I remind him our entire conversation is covered by attorney/client confidentiality.
So, can my attorney tell anyone? Do I have a right to confidentiality? Can he tell anyone about our Sarbanes-Oxley conversation? Can he tell anyone about my gleeful murderous confession?
Does your check clear?
Both threads on this subject seem to be ignoring the MA rules.
Interesting. It would seem that the MA rules would solve the problem. So why not discuss them?
Is it possible that the wonderfulness of being an attorney--oh the ethical burdens we bear in support of justice-would be discounted if the problem could be solved?
Others have asked. What's wrong with the MA rules.
I, IANAL and not, thus, worthy have asked about a process for recompense directed toward the known innocent spending lifetimes in jail, have had no response. Seems odd, logically. You're in favor of a system which will put the innocent in jail and reluctant to pop for a Double Whopper to lighten the poor chump's day. May you be the jailed innocent.
First, THIS is why people dislike Lawyers. It is a prime example of self interest (my career, my future income, etc.) over those of others.
Second, it shows that what lawyers are interested in is legality and that they are not at all interested in justice (for it is not justice to allow an innocent man go to prison when you have evidence of that innocence).
Third, I think EV's arguement regarding the loss of future income as a legal professional to arguably violate the Lawyer's Oath, "...or delay any person's cause for lucre or malice." Yes in context one might say this is with regard to your own client, but you are injuring someone's cause for your own self enrichment.
It could be said that keeping silent while an innocent man is convicted is failing to "maintain the respect due courts of justice".
It should be clear that concealing such information would be to fail to "employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor".
I would also argue that one could say with holding such information would be to mislead a judge or jury be artiface (said artiface being hiding behind client confidentility).
I can see why this would cause much distress upon the lawyer in question, but what is right does not depend on whether or not you suffer.
That being said, shortly someone will argue how on a technicality, lawyers are not bound to all aspects of the oath they take.
(I am not assuming that all the of strict constructionists use that argument against the death penalty; but a lot do.)
Several years ago the Los Angeles Time weekend magazine had an article about a convict in the California prison system who has either been convicted of or is the only suspect in 16 murders committed in prison.
Perhaps the most bizarre aspect of his criminal record is that he has never been convicted of a felony committed on the outside. He was originally sent to Solano Prison as a juvenile delinquent, when his judge decided to try "scaring him straight." The first night in prison, as a 16-year-old, he was gang-raped. The next day he stabbed and killed the convict who instigated the attack.
I think you are pretty badly mixing up the difference between what is pragmatic and convenient with what is ethical.
I'm not sure how you could reasonably argue that you DON'T have a moral duty to do those things. At the very least, the refusal to do them exposes a pretty deep level of moral inconsistency, because there are all sorts of cases in which we'd consider failure to act unethical, such as reporting an ongoing rape to the police, passing by a drowning child, etc.
It's one thing to rightly note that doing those things would be inconvenient: maybe even very difficult for any self-interested person to make. But it's very different to try and turn that into a way to water down morality until it merely basically legitimates your present lifestyle as is, since anything else would bear too much of a burden to worry about.
I don't make the argument that Harry says: that a "million murderers must go free lest one innocent be penalized." Rather, I make the argument that the good of the many outweighs the good of the one, and the best way to ensure the good of the many is to obey the law.
The Rules of Professional Responsibility have the force of law, and therefore I am duty-bound to obey them. When I was in basic training, my DI liked to say "You don't have to like it, you just have to do it."
What if it isn't 26 years? What if it is only 5 years? Do you rat your client out then? What if it is only 90 days in jail? What if it is only a $500 fine? Where is the line drawn? Or is there a line at all?
It seems that the desired rule of so many commentators is that the law should be meaningless in the face of what you, as an individual, feel is repugnant in your personal morality.
The privilege is not about the lawyer it is about the client. We -- and a very few other select others -- are entrusted with people's deepest, darkest secrets so that we may advise them on the best choice they can make for their interests.
As a defense lawyer of many years I see my job as getting my clients who are in jail out and once out have them never go back to jail. If they must serve time I strive to make it the least possible. I advise my client on what I believe, based on my experience and training, what is in their best interest, if they chose to take it or not they must live with the choice not me.
To give them that best advice, however, they need to be as honest with me as I am with them, ratting out their secrets undermines that innate request of "truthfulness." As a society we have made a determination that those open and honest conversations between attorney and client are more important than a system where a client may be ratted out by their attorney because their attorney's conscience can't suck it up or because they place loyalty as less important than some possible version of the "truth," whatever that means.
I should also note that there is a slippery slope between saying a lawyer should rat out his client and requiring they do so.
I should finally note, that if you don't like these type of moral choices the practice of criminal law probably isn't for you.
Do you recognize any point where the law would become meaningless in the face of what you as a person feel is morally repugnant? Any point at all?
However, whether or not one has a moral responsibility is not and should not be founded on what the penalties might be. Either one has an obligation to come forward with exculpatory information or not.
What seems to be argued here is that client confidentiality conveniently trumps any moral obligation. Very convenient since it is also argued that it is far more profitable to let the innocent be condemned.
If attorneys are essentially amoral actors who are bound not by any duty to ensure that justice is done, but rather to function unhindered by conscience in an abstract world of artificial laws, then they deserve the reproach they so often receive. If you present yourself as an effector of justice and a champion of those who see justice, then how can you possibly square letting an innocent man be punished?
The answer that comes most readily to mind is that the talk of ethics, honor, truth and justice is all pretense used to sell the pulic on paying excessive fees to maintain a system which is becomming less about truth and justice and more about gamesmanship.
An obligation to a client cannot be morally binding if it requires one to protect that client at the significant harm of another individual. To say so turns justice on its head. If your professional code requires mindless adherance to principle which can so easily be perverted to cause great harm, how then can you defend that profession? If your own code of conduct causes you to live in a moral sewer it is your own fault.
Loyalty IS A MORAL act. Loyalty is an ETHICAL act. We live in a rat culture that is glorified in the media. Maybe you teach your kids that disloyalty to friends is a good, a moral, an ethical thing, but I don't.
Disloyalty where one has a duty and it may "feel good" to be disloyal is not "moral" it is rather moral cowardice.
Do you? Where, exactly, is the line where your personal morality/beliefs/whims become superior to the law?
Further, are you willing to live in a society where everyone has that view? Or is it only in one where everyone has the same personal morality/beliefs/whims as you?
I have as yet to come across a situation in my own experience where I thought I was above the law. I hope I never do.
If I was able to do that, I simply could not do my job. I could not, for example, argue a suppression motion in a drug case. After all, just because the cops violated the law (See: the 4th Amendment) shouldn't mean that my client gets away with having a rock of meth in his house. I would, under your standard, have a duty to avoid any defense of my client other than plea negotiations. He had the drugs - he is factually guilty - and the law has no bearing in the face of a morality that may find drugs repugnant.
I think that's how they do it in the People's Republic of China.
Do you recognize any point where the law would become meaningless in the face of what you as a person feel is morally repugnant? Any point at all?
No, I have never had that happen to me. No, I am unable to see the future. No, I am unable to predict - right now - how I will react in every possible situation. No, as of right now, I can see no point in which I am above the law, no matter my personal morals.
Yes, I am very happy that we have moral guardians to whom the law is a matter of convienence. I have so enjoyed the last 4 presidential terms on that score. (That's sarcasm, in case you missed it)
Now, please tell me where, exactly, to draw the line so I can know when I should place your morals/beliefs/whims above the law?
I, personally, find the current tax structure in this country reprehensible and immoral. I guess, under your standard, I am exempt from taxes.
Your answers avoid it. You tell us:
1) You have never had that happen to you.
2) You are unable to see the future.
3) You are unable to predict how you will react to every situation.
4) Right now you see no point where you are above the law.
Here is the question:
Do you recognize any point where the law would become meaningless in the face of what you as a person feel is morally repugnant? Any point at all?
If the answer is No, just say so.
I'm not entirely sure how the cost of complying with an ethical duty is an argument against that ethical duty. Complying with an ethical duty pretty much always has some cost, right? I mean, if you're a utilitarian, it seems like you would have to put a value on the liberty of the potentially wrongly-convicted individual to weigh against the cost of the lawyer's career to make an argument here. If you're not a utilitarian, or other type of consequentialist taking monetary cost into account, I'm not sure what any of your post has to do with the existence of an ethical duty.
So assuming you are endorsing some sort of consequentialist framework, don't you think your argument proves too much? That is, haven't you actually given an argument against every ethical duty? Given the cost of complying with any particular duty, you can come up with a list of other ethically good things that have a similar cost but that we might not have a 'duty' to do, for whatever reason. But so what? Why does that undermine the existence of the duty?
And let me suggest that, in fact, your argument doesn't work on its own terms. It seems to me that there would be a morally salient difference between (i) not actively seeking information about every prisoner to try to set some potentially innocent people free (you could probably save someone if you worked hard enough) and (ii) not sharing information that, to your knowledge, only you possess, that would help set a potentially innocent person free. Your examples all seem analogous to (i), not (ii), so I don't see how they help your argument in this case.
But, okay, I will give you the answer you really want if that will make you happy. The point at which my personal moral repugnance makes the law meaningless to me is when this country becomes a tyranny under people who feel that their idea of justice or morality is supreme and they submit to no binding authority other than themselves. At that point I drop out and become Grizzly Adams.
Now - give me an answer to my question which you have ignored completely. Feel free to explain your answer - I am not afraid of explanations.
Where, exactly is the line that your personal morality becomes superior to the law? As the story goes, we already know what you are, we are just dickering about the price.
You have rejected the notion there is no point where the law would become meaningless in the face of what you as a person feel is morally repugnant.
That is a commendable position.
Of course I have ignored your question. I'm not the one who said:
"It seems that the desired rule of so many commentators is that the law should be meaningless in the face of what you, as an individual, feel is repugnant in your personal morality."
Since the circumstance that I gave is clearly unlikely to the point of absurdity, my actual answer that I give now for a FOURTH time stands. I am not superior to the law.
My quoted statement was based on the position of several commentators on both this and the previous thread (including yourself) that the idea that someone would and should ignore the law if the law would allow or require an injustice. All I ask is for someone (you, preferably) to tell me where that line is.
I suspect that the reason you don't answer is that you look at like obscenity: You can't define it but you know it when you see it.
That merely means that you are not operating by a strict moral code, but by situational whims and fancy. "I don't like this situation, so I would/will/did ignore the law. But that situation is okay, so the law must be enforced to the letter."
I sincerely hope you never decide that you find laws against child molestation repugnant.
You get used to it. I strongly believe that anyone who has tried more than a handful of cases have seen the guilty walk and the innocent convicted. The system is flawed, it sucks, but it the best system out there, and the only system we have.
The above quote from an earlier comment sums up my opinion.
Lawyers, as a body, are an intelligent group. I think if you were less concerned with your own monied interests, you could devise fair ethics to deal with these problems, while serving justice.
Do unto others as you would have done to you.
It generally works.
Figure out a way for all parties to receive the utmost benefit of the doubt, and justice will be served -- and humanity moved forward.
You wrote:
"The point at which my personal moral repugnance makes the law meaningless to me is when this country becomes a tyranny under people who feel that their idea of justice or morality is supreme and they submit to no binding authority other than themselves."
Therefore, you recognize a point where the law would become meaningless in the face of what you as a person feel is morally repugnant.
Again, I commend the fact that you recognize such a point. Perhaps you don't find that commendable, but I do.
"I sincerely hope you never decide that you find laws against child molestation repugnant."
I think we can agree on that.
Consider: The average man is not a felon. (Ditto for the average woman.) He will easily be able to visualize himself unjustly imprisoned for a crime he did not commit, because that is really the only circumstance in which he would be likely to be sent to prison. He won't be able to put himself in the place of a multiple murderer whose rights have been violated by breach of attorney-client privilege, because he himself is not a multiple murderer and because he doesn't give a crap about the right of confidentiality for tried-and-sentenced multiple murderers. And because he is not an attorney, he will not have your sense of priorities about your duty to your murderous client versus your duty to attempt to free an innocent man, and he will sure as hell not be able to imagine himself keeping silent for 26 years while an innocent man rots in prison.
Better get used to your friends, family, and neighbors asking, "You wouldn't do that, would you?" And be prepared for the consequences of your answer.
For grins and giggles, I did a Westlaw search since I am interested in the facts of the Logan case in addition to the broader discussion of the breadth of the attorney-client privilege.
So I will make some quick observations about Mr. Logan--based on what I can gather from the public record.
First, as I mentioned above, Logan's attorney used the "Wilson-is-the-real-killer" defense at trial. The jury did not buy it. As I discovered reading the Illinois decisions on Logan and his co-defendant, it seems that all three eyewitnesses picked Logan out of separate lineups at seperate times as the McDonalds shooter.
Second, Logan's original conviction was overturned on post-conviction appeal for ineffective assistance of appellate counsel (on an issue having nothing to do with the shotgun). People v. Logan, 586 N.E.2d 679 (Ill. Ct. App. 1991).
Third, Logan was retried. I am assuming that counsel at the second trial also used the "Wilson-is-the-real-killer" defense. Logan was again convicted. This conviction was affirmed on direct appeal. People v. Logan, 699 N.E.2d 1035 (Ill. Ct. App. 1998) (table).
Thus, without commenting on the merits of the broader philosophical argument, I have to say I have my doubts as to whether Alton Logan should be the poster-child for the wrongfully convicted and imprisoned.
If I think a judge will give my client 30 years when I believe anything more than 5 would be an injustice, can I blackmail the judge to get the "just" sentence?
If a prosecutor believes they have a repeat child molester, but all their evidence is inadmissible, should the prosecutor manufacture evidence to protect the public?
As Southern Public Defender pointed out, allowing lawyers to break the rules to prevent what the lawyer believes to be an injustice would destroy the integrity of the system.
I think another problem (not a problem, really) is that non-lawyers are shocked, shocked at any injustice in the system. Regularly, I see cases where defendants were treated illegally, but since they didn't make just the right objection at just the right time, they spend years longer in prison. On the other side, prosecutors lose cases against guilty defendants because a cop made a serious mistake or because a prosecutor screwed up the indictment or missed a deadline.
Injustice happens. A lot. I don't think the public really wants lawyers to have a license to cheat every time we perceive an injustice.
1. Those who lamabaste the lawyers here are missing an important point: the client's confession was made with an implicit understanding that it would not be revealed -- an understanding that is backed up by several centuries of the attorney-client privilege.
Suppose the promise had been explicit. Suppose the attorney said, "I solemnly swear that whatever you are about to tell me will not be revealed without your permission."
Without such a promise, the person would never have confessed in the first place, certainly not to you.
Given the long history of the attorney-client privilege in Anglo-American law, this is not far off the mark of what really occurred. (Attorney's are "sworn in" as officers of the court, and part of their oath is to uphold the ethical rules of the profession.)
So is it ethical to reveal a confidence you have promised to keep when that very promise is what induced the person to reveal it -- and he otherwise would keep quiet?
2. If the answer to the prior question is yes, then ought you not reveal that to the client in the first place. "Yes, I'll keep your confidences, unless my moral consience bothers me, if not I won't." Isn't it incumbent upon you as a moral actor to reveal this to the client BEFORE he spills his guts?
If not, do you not see anything unethical about inducing someone to reveal their confidences through implicit lying and trickery (i.e. the implicit representation that you will abide by the privilege, absent a waiver from the client or the few narrow exceptions recognized by law.)
If yes, do you recognize that by revealing this ahead of time, then you almost certainly guarantee no confession.
3. I don't know what the MA rules are. But having a different set of rules ahead of time avoids the ethical conundrum created by the privilege. One could argue that the attorney-client privilege should be abolished, or restricted or more exceptions made to it. But whatever you do, that is adopting a single rule for all situtations -- which the client then understands ahead of time.
4. Sending an innocent man to jail is certainly an injustice. Hobbling attorney-client relations across-the-board also can create many injustices. Like it or not, the attorney-client privilege has long been though important to the functioning of the system. By revealing a client confidence, one is undermining this part of the system.
For that matter, the very existence of a criminal justice system creates a potential for injustice. I have little doubt that, of the thousands of people sent to jail every year, there are some number who are innocent. No one is suggesting that we abolish the criminal justice system -- the costs, indeed the "injustices" of doing that would far outweigh the benefits.
Abiding by the privilege is, I think, in the same vein. Individual injustices are the price we pay for systematic benefit.
You don't understand the purpose of my job, my job is to get my client off, and if I can't get them off get them the least amount of time possible. Any thought other than that is selling out my client. I have to tell you, if I don't do that guys like Dave N. (who I almost always disagree with but greatly respect) will eat my clients up, guilty or innocent; the system only works when both sides have an avid, learned &skilled advocate who can hash through the mess.
Second, as a defense attorney I do not have some special superpower to determine factual guilt from factual innocence. I have represented the guilty and the innocent. I have had the factually innocent (IMO) lose at trial on all counts, and have had the factually guilty (IMO) win at trial on all counts -- obviously the juries didn't agree with my interpretation of the facts.
Finally, your argument directly undermines the very basis of our law. "Guilt beyond a reasonable doubt" isn't error proof, it lets the guilty go and convicts the innocent, I suspect more than any of us our really understand. The issue isn't factual guilt/innocence at trial but whether has the state presented sufficient proof to convict or condemn. If you don't like our current system, I'd love to hear your suggestion.
But this misses the point that many are making here. Wouldn't violating confidentiality, and accepting disbarment, say, be analogous to civil disobedience of a law one considers unjust?
That is, breaking the rule and accepting the punishment is what many argue is the proper, ethical, course of action. (And of course, it's not really a law, just an agreement among lawyers which could, as the MA example shows, be written differently.)
Wrong. Our purpose is to put the State's case to the test. Can the State prove guilt beyond a reasonable doubt with admissible evidence? Given the admissible (or arguably admissible) evidence, what's the best deal I can negotiate? At sentencing, what's the least burdensome sentence I can obtain? On appeal, what errors can I find that would help my client?
Some of my clients think like you do. They insist that I must believe they are innocent to defend them. Hogwash. It's not my job to sort the innocent from the guilty. That job belongs to the cops, prosecutor, judge, and jury.
If a lawyer can reveal information to prevent death or injury, or financial harm caused by fraud, or to defend himself against the possibility of harm, why shouldn't he be permitted to reveal the information to prevent a wrongful incarceration?
Bologna. Many cases are black or white and you know it. Either your guy is the murderer, rapist, thief, etc. or he isn't.
Sorry, not true. I have represented, safely guessing, between 1500 &3000 defendants, pretrial through postconviction. Of those who I KNOW are guilty maybe less than 50, the vast majority of the remainder are maybes. Although I represented a few drunk drivers or misdemeanors, my numbers are almost exclusively felony representations, including at least a couple where I was sure the guy did it and got walked and at least a couple where I was sure the guy wasn't involved and he ended up doing a bid on all counts &in one case executed.
Dream, maybe we should switch jobs, you seem to have secret knowledge and powers that I simply don't have.
I believe the answer is, "because the lawyers who recommend the ethics rules to the state have no personal incentive to do so."
The current rules allow a lawyer to break confidentiality to defend himself against the possibility of harm. Big incentive there! But why bother to change a law when it's some unknown innocent third party a hundred miles away who would be harmed? Changing the rules would cost these lawyers time and money, and "surely it's not so clear that people have an ethical duty to save another's life at such great expense."
The biggest problem with the current system is voir dire. If both sides would stop trying to exclude people who can think for themselves, then you wouldn't have as many wrongful convictions or O.J. Simpsons on the loose.
That invites the reader to consider a scenario where the lawyer made a promise with the intention of getting information from it and then breaking the promise. And that's not what happened. Even though the criminal wouldn't have said anything if the lawyer hadn't made the promise, the criminal's statement is still in some sense incidental to the promise. The lawyer didn't intend to, or even expect to, be given the information.
The Mass rule is a prospective rule, not a retrospective rule. and it is a may, not a must. Further, almost all states have those rules. The reality is that I have seen that rule used once in a criminal context, and we don't think that highly of the lawyer who betrayed his client using that rule b/c the harm was a potential ¬ an actual harm. The reality is that rule is a cowards way out, save when you are dealing with the ticking time bomb type of case where you know your client is going to go kill someone.
I should note, in the instant case, Dave N. hit the nail on the head, had counsel revealed there were still 3 ID witnesses placing the "innocent" man there. I hate eyewitness ID, however, a jury like still would have convicted despite the "innocence" claim.
I don't recall that being only a proposed rule. I know that it is a "permitted" action, not a required one.
I have said many times in the other thread that this is all silly hypothetical debate because there's nothing to make anyone think that a deathbed confession will help anyone. If it did, criminals would be finding dying people left and right.
I agree that voir dire can be a problem, but OJ wasn't acquitted because of a bad voir dire. The cops were sloppy and dishonest. The prosecutors were sloppy and dishonest. And the jury refused to accept sloppy and dishonest evidence as proof beyond a reasonable doubt.
Yeah, OJ did it. But the acquittal came from a sloppy and dishonest prosecution, not from defense trickery.
No, because the argument about it breaking down the system if everyone does it really does apply here. Prosecutors who do this will end up either convicting innocent people, or encouraging the police to obtain inadmissible evidence (which would mean abusing innocent suspects).
In the current case, innocent people can't be hurt in any direct way. The client wouldn't have confessed if he was an innocent person, and the information is being used to exonerate the third party, not to convict him. I suppose you could argue that innocents would refuse to talk to their lawyers because of the risk that the lawyer would mistake their statements for confessions, but the Massachusetts example proves that that possibility won't break down the system.
Prospective harm, not a prospective rule.
you would think a short post wouldn't need to be re-read for typos
Those who lamabaste the lawyers here are missing an important point: the client's confession was made with an implicit understanding that it would not be revealed — an understanding that is backed up by several centuries of the attorney-client privilege.
Suppose the promise had been explicit. Suppose the attorney said, "I solemnly swear that whatever you are about to tell me will not be revealed without your permission."
But wouldn't the attoney also have to mention the exceptions?
Here's an interesting wrinkle: The ethics rules do permit a lawyer to break confidentiality if an innocent man's life is at risk. But in this case, Logan went to trial after the self-proclaimed real killer made his admission to his lawyers -- in fact, they attended Logan's trial after his admission. But Illinois had the death penalty in 1982! I'd be astonished if the prosecutor had taken the death penalty off the table in this high-profile case of shooting a cop! (Dave N, did your Westlaw search happen to turn up anything about this?)
So it seems to me that Logan's life was at risk at the time that the two lawyers had a credible admission that another man had committed the crime. Even if their information would not have been admissible in court, why the hell didn't they go public wit h what they knew?
e
Somehow I doubt there would be a 'strict constructionist' in the crowd were any of us facing conviction for a crime of which we are innocent.....and about to become Hans' bitch.
That said, I would be perfectly fine with everything you say above *IF* I had the impression the legal profession as a whole considered it a priority to find some mechanism that would push us ever closer to insuring innocents aren't wrongly convicted. We're imperfect beings who create imperfect rules which we imperfectly apply. For that reason, it seems highly unlikely we'll ever see a 'perfect' resolution. But it shouldn't stop us from trying!
My overriding concern (as a non-legal practitioner) is that there *seems* to be at least a significant minority of legal professionals who take the 'Shit happens....' attitude towards these situations......assuming the commenters to this thread are a representative sample of legal opinion.
I agree wholeheartedly that we should 'abide by the rule of law', and certainly have no desire to possibly have our fate determined by the individual moral compasses of a gazillion different attorneys. But I also fail to see why we shouldn't continually push to make 'the law' an ever more (im)perfect provider of 'justice'. After all.....
"None of us are free
As long as one of us is in chains"
And we are all *potentially* in chains as long as one innocent man pays for a crime he didn't commit.
The lawyer is betraying a guilty man. The doctor is betraying a man who could be innocent.
At first it sounds like the doctor and the lawyer are in similar situations, because the doctor's patient is guilty. However, he's only guilty of having done something in the past. The doctor is not letting him die because he killed someone in the past, but rather because he might kill someone again in the future. He might legitimately be innocent of that second charge.
My hypothetical was meant to parallel what happens in real life -- and I think it does. By holding out oneself as a lawyer, one is making an implicit promise to keep client confidences revealed for the purpose of the representation. The implicit promise is only subject to the exceptions recognized in that jurisdiction.
While the lawyer may not be fishing for a specific confession, he is certainly telling the client that he should feel free to open up without fear of revealing the confidences. This is done for the purpose of establishing the attorney-client relationship -- something for which the attorney is usually paid for, often handsomely.
A similar analogy is a psychologist/psychiatrist. There is an implicit understanding that the patient can tell him anything that is part of the therapy and that will be kept in confidence. Having given that trust (not to mention charged a pretty penny for it!), it strikes me as of dubious ethics to turn around and break it because the person revealed information that made you uncomfortable.
Yes, to make the analogy work better, you would have to mention the exceptions.
My point was that when a client comes into the attorney's office, there is an implicit promise that his confidences will be kept, subject to whatever recognized exceptions there are in that jurisdiction.
First, as I mentioned above, Logan's attorney used the "Wilson-is-the-real-killer" defense at trial. The jury did not buy it. As I discovered reading the Illinois decisions on Logan and his co-defendant, it seems that all three eyewitnesses picked Logan out of separate lineups at seperate times as the McDonalds shooter.
And as Crystal Gail Mangum and Mike Nifong demonstrated, lineup identifications are never mistaken or rigged!
There are several things about that case that seem fishy to me. Why wasn't the shotgun admissible as evidence? Why didn't the other defendant's lawyer allow Logan's lawyer to talk to his client? But that's for another discussion thread ...
a
But the whole point of my earlier post was that the wrongful conviction in this case could NOT be blamed on the silence of the defense attorneys, and it's impossible to try to blame most, if ANY, of the wrongful convictions on the "problem" of attorney-client confidentiality. Yes, the system is broken; yes, there are wrongful convictions. But don't blame the one guy in the whole case that actually did his job, the defense attorney that kep his mouth shut, while ignoring the facts that: (1) three eye witnesses got up on the stand and swore under oath that they were "sure" that the wrong guy did it, when in reality they were probably too busy diving under the nearest table to even look at the face of the man waiving the shotgun; (2) the wronfully accused man got a court-appointed attorney that was not paid nearly enough to conduct a full-blown trial of a capital case; (3) the prosecutor in the case objected to the admission of the shotgun used to do the shooting, and the judge sustained that objection, both in error; and (3) the jurors in this case found the guy guilty, "beyond a reasonable doubt", based almost entirely on the inherently untrustworthy eye-witness accounts. Yes, there were any number of systemic failures in this case that resulted in a wrongful conviction, but the fact that the defense attorney kept his ethical obligation of confidentiality was NOT one of them.
If you want to change the rules on attorney-client confidentiality, fine, but admit that if those changed rules were in effect, the real perpetrator would never have opened his mouth and the system STILL would have convicted the wrong man. If you want to lay blame at the feet of the attorney in this case, at least have the candor to admit that it's only because of a completely irrational hatred of attorneys, and not based on any logic or reason.
Let's work with that a bit. Many here hold that allowing a lawyer to provide confidential information to save an innocent from prison should not be allowed because it will weaken the trust upon which our legal system is based? Is that a fair summary of much of the sentiment here?
If so, would our system be strengthened by elminating the exception for preventing death, injury, financial harm caused by fraud, and the lawyer's personal defense? Wouldn't this make the system even better since the lawyers and their clients would have absolute certainty that no confidence could be breached under any circumstances?
Wow. Just, wow.
I grew up in the Jim Crow South. Wow.
Listen, I get the argument for confidentiality. I understand why it was invented. But it wasn't handed down from on high.
I'm a newspaper reporter. We don't have any ethics to speak of. We do not, for example, recognize any positive ethical duty to write stories trying to prevent the persecution of the innocent.
But, my Lord! We don't have any ethics that positively prevents us from trying.
Lawyers do.
Seems they ought to think that one through again.
This is interesting. Does the implicit promise of confidentiality apply only to areas where the attorney is providing representation? Suppose I engage an attorney to deal with a tax issue, and in our discussions in his office I tell him I have killed eleven little girls, but have no intention of killng anymore. And, it's a real hoot that some other guy just got a life sentence for what I did.
He is not providing me any representation for murder; he's a tax lawyer. So, does the law prevent him from calling the cops and telling them what I said?
Absolutely, Dave N. And after all, what weight can we even give to Wilson's boast to his attorneys? He might have really been there, but he might have just supplied the weapon or taken it after Logan and Hope hit their lick. Or he might have just been completely full of it.
Logan's defense attorneys did raise the "Wilson did it" issue, showing pictures of the Wilson brothers to the eyewitnesses and pointing out similarities.
Contrary to some commenters who have been misinformed that the shotgun's provenance was "suppressed" or that the shotgun was not allowed as evidence, everyone involved was perfectly aware from the beginning that the shotgun used in the robbery was found at Andrew Wilson's home. Logan's counsel relied on this fact in pretrial proceedings, in an attempt to establish a connection between the Wilsons and Hope (Logan's codefendant). It does not appear the trial court denied admission of the shotgun; rather, the trial judge limited Logan's attempts at showing this connection, to showing the witnesses pictures of Wilson; and that "if any of the witnesses could identify the Wilsons, defendant would be allowed to introduce evidence linking the murder weapon to the Wilsons." One witness said Wilson looked like the defendant but no one ever said, "yeah, this is the guy."
I don't know if that ruling was repeated in Logan's second trial. However, I am far from convinced that Wilson's statement is accurate. I really don't understand why people are looking at it as conclusive of Logan's "innocence."
And as for whether Wilson's attorneys should have revealed their client's confidence: whatever appeal this has to some people, they should realize that it would have accomplished nothing. Because Wilson could have asserted a privilege, he could have prevented the lawyers' testimony from being introduced at Logan's trial (or anywhere else), even if his "confession" could have passed the Chambers v. Mississippi test. The jury would not have heard this evidence. The only possible effect might have been to make the DA reconsider his case. But he appears to have had a good case against Logan. And why would the DA have believed anything that Wilson said? For all the DA would have known, the statement was either puffery, or some kind of attempt by Wilson to help Logan, Hope or both- without exposing himself to a death sentence.
The Massachusetts rule is interesting but if Illinois had it, the result in this case would be that two defense attorneys interrogated their client about a murder, secured a "confession," then turned it over to the DA who could have sought to have their client executed on that basis. Curious; but fascinating.
In any event: for those of you insisting upon the "duty" of these lawyers to disregard the rules of their profession and disclose the information, please tell me what the hell difference that would have made in Logan's case. (Indeed it's not entirely clear the disclosed evidence will help Logan now.)
And the analogy to psychologists is telling. Unlike psychologists, most statutes requiring disclosure of otherwise privileged knowledge of child abuse do not apply to lawyers.
"The ethics rules do permit a lawyer to break confidentiality if an innocent man's life is at risk"
Actually, the rules say nothing about an innocent man's life. They say to protect life.
Not certain how it would work, but shifting from "has the state presented sufficient proof to convict or condemn" to "what is the factual guilt or innocence" seems like the obvious alternative. I guess an inquisitional grand jury system, with some sort of "inspector general"'s office enforcing proper evidence-gathering techniques?
When you and Public Defender frame your job as "making sure the police and prosecutor follow the rules", I'm supportive of that. I like that, and I want yall to be successful at that. When yall frame your job as "Get my client off, regardless of their guilt or innocence", though, that bothers me the same way it would to hear a prosecutor or cop describing their job as "Make sure somebody goes to jail, whether it's the right person or not." And I imagine that although I do have a lot of ideas that are on the radical (but correct) fringe, that one's pretty mainstream.
Contrary to some commenters who have been misinformed that the shotgun's provenance was "suppressed" or that the shotgun was not allowed as evidence, everyone involved was perfectly aware from the beginning that the shotgun used in the robbery was found at Andrew Wilson's home.
"Everybody"? Even the jury? Doesn't sound like it.
Or did you mean, "Everybody who's playing The Game, but not the game pieces themselves"?
What seems to matter to many of the lawyers here is the integrity of the Almighty Process. The general public, perhaps naively, thinks we have a system that is intended to secure justice.
Diver Dan:
If you want to change the rules on attorney-client confidentiality, fine, but admit that if those changed rules were in effect, the real perpetrator would never have opened his mouth and the system STILL would have convicted the wrong man. If you want to lay blame at the feet of the attorney in this case, at least have the candor to admit that it's only because of a completely irrational hatred of attorneys, and not based on any logic or reason.
Dan,
It's understandable given the number of posts here, but did you even read what I wrote in the course of the conversation you pulled my quote from? I believe the defenders did the right thing, the only thing they were able to do.
For you to claim that my viewpoint is not based on logic or reason is absurd. Perhaps you should look up the terms. I'll simplify it for you. The current system is flawed. The Mass system is flawed. I think systems have the same flaws (like you pointed out, also the evidentiary bar on the confession); however, the Mass. system adds additional harms. So I prefer the current system.
For you to claim that my viewpoint is not based on logic or reason is absurd. Perhaps you should look up the terms. I'll simplify it for you. The current system is flawed. The Mass system is flawed. I think systems have the same flaws (like you pointed out, also the evidentiary bar on the confession); however, the Mass. system adds additional harms. So I prefer the current system.
Then let's work to reduce the flaws! The fewer exceptions the better, right? That way we can increase confidence in the system!
So when am I going to hear a call from the lawyers here to eliminate the exception that allows an attorney to break confidentiality to defend himself against the possibility of harm?
... crickets ...
I'd be curious to know what you think of the following:
(1) Do we know that Wilson's "confession" is true, and if so why;
(2) Does Wilson's statement conclusively prove that Logan is innocent, and if so why;
(3) Do you think that Wilson's attorneys should have told Logan's attorneys, the judge, and/or DA, that they had investigated their client's involvement in the McDonald's murder and obtained his confession, thus exposing him to the death penalty, and
(4) if so- what possible difference do you think that would have made in Logan's trial, since the evidence was not admissible?
At what point did I say "the fewer exceptions the better?" Wonderful use of logic. Take what I said and act shocked in "response" to it, even though your issue is with something else entirely.
Even people with valid points lose credibility when their arguments devolve into such misrepresentations and overstatements.
I'm not going to bother restating what I have said. It's in the earlier posts if you actually want to read it. But seeing as I am attempting to address the debate logically and you are behaving in an uninformed and irrational (not necessarily your point of view, but your misrepresentations and overstatements) manner, I will bow out and let you post your tirades without response.
(1) Do we know that Wilson's "confession" is true, and if so why;
No, we don't. But the two attorneys who knew about the confession and kept silent for 26 years seem to have believed it, and they had much more information than you or I. Wouldn't Wilson's confession normally be considered an "admission against interest"? Don't you think the jury should have known about it?
(2) Does Wilson's statement conclusively prove that Logan is innocent, and if so why;
Of course it doesn't. But don't you think the jury should have known about it?
Evidence is excluded all the time, for various reasons. And I'm generally in favor of this, even when it allows a factually guilty man to go free, because it helps prevent malfeasance by agents of the state. But I have a hard time about excluding evidence that would exonerate an innocent man. Don't you?
(3) Do you think that Wilson's attorneys should have told Logan's attorneys, the judge, and/or DA, that they had investigated their client's involvement in the McDonald's murder and obtained his confession, thus exposing him to the death penalty,
Don't you think that Wilson's attorneys should have had the option of telling Logan's attorneys, the judge, and/or DA, that they had investigated their client's involvement in the McDonald's murder and obtained his confession, as they would have had in Massachusetts? Has the criminal justice system collapsed in Massachusetts for this particular reason?
(4) if so- what possible difference do you think that would have made in Logan's trial, since the evidence was not admissible?
Don't you think the information would have been of interest elsewhere than in the isolated little world of the courtroom? Don't you think the good citizens of Illinois -- or the readers of the Chicago Sun-Times or the Chicago Tribune -- would have been interested in knowing that there was exonerating evidence and a confession from another plausible perpetrator of the crime, indicating that a possibly innocent man was being railroaded? Or better yet, don't you at least think the governor of Illinois -- you know, that guy who grants pardons -- should have been privy to this information?
But you've failed to take note of the easiest solution of all that was suggested. The only group that said the ethical question and the situation in general was easy were those who indicated the attorneys did the right thing (in raising the confidentiality agreement to an absolute value above all other values, including justice itself). That's the easiest solution of all as it has the effect of making both the ethical call itself easy and, obviously, it makes the existential problem for the attorneys easy as well since they can simply continue practicing law. Their lives were not interrupted in the least and that's about as easy as it gets. Aka a one-sided win/win.
By contrast, no one who suggested the ethical question per se should be resolved by breaking with the confidentiality agreement - due to the more momentous concern - suggested the attorneys' existential crisis itself was easy, to the contrary.
A simple analogy. If someone owes a debt it is relatively easy to sum up the interest, principle, etc. associated with the debt. That doesn't suggest it's easy to pay the debt nor does it suggest the debtors life will be made easy by having to work to pay the debt.
Another analogy. If a medical doctor knows that an infected patient, whom she has a legally binding confidentiality agreement with, is intending to infect others in a premeditated manner, then that medical doctor's responsibility associated with the confidentiality agreement becomes secondary to the larger ethical issue that needs to be faced. That the ethical issue per se is "easy," that doesn't mean the existential decision itself will be easy nor does it suggest the doctor's life is going to be easy in the aftermath (potentially loosing her license to practice, having to find another livelihood, etc).
As far as children or families in Africa, that type of argument could be used to deflect virtually any difficult moral/existential conundrum that results in some notable costs. Additionally, we are not all-purpose and omnipresent beings who have equal responsibilities to all six billion inhabitants of the planet, along with future inhabitants as well. We are individuals situated in a specific and concrete place and time.
At what point did I say "the fewer exceptions the better?" Wonderful use of logic. Take what I said and act shocked in "response" to it, even though your issue is with something else entirely.
Forgive me -- I misunderstood you. I thought that when you wrote:
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.
... that you really meant that the flaw is that it allows a breach of the client's confidence.
The flaw that I proposed eliminating is a different exception that allows the breach of a client's confidence. See why I was confused?
Other commenters have asked similar questions, including some version of; "if the criminal defense lawyers on this blog are claiming the system will fall apart what about Massachussetts?"
As others have pointed out, if the rules were different, there would have been no confession. Here's a thought, if you really think Massachussetts system is better, find me the case where someone confessed to their attorney a crime they weren't on trial for which could still expose them to jail time or death. If you can't find that case, maybe the Massachussetts rule is a reason why you can't?
As others have pointed out, if the rules were different, there would have been no confession. Here's a thought, if you really think Massachussetts system is better, find me the case where someone confessed to their attorney a crime they weren't on trial for which could still expose them to jail time or death. If you can't find that case, maybe the Massachussetts rule is a reason why you can't?
(1) Alas, my resources for finding such a case are quite limited.
(2) So what? There might be one in the future. Why needlessly preclude the possibility?
(3) This might be sufficiently close to the sort of example you want: Wilson seems to have confessed to his lawyers at a time when he could have been exposed to capital murder charges. (BTW, I'd like to know more about this!) As I wrote previously, I don't understand why his lawyers didn't break confidentiality, given that the ethics rules in place at the time seemingly would have permitted it.
(4) The Massachusetts exception would at least relieve lawyers from being caught in the moral dilemma under discussion here. Whether or not a client confesses his guilt to his attorney doesn't change the fact that he did the deed, but if he doesn't confess then at least the attorneys aren't burdened with knowing about the confession. This might have the positive benefit of increasing the public's respect for lawyers. I doubt that the public's awareness of the inaction of Wilson's lawyers regarding Logan's possible innocence will increase their respect; if you want evidence of this, watch 60 Minutes tonight.
I wrote:
Wilson seems to have confessed to his lawyers at a time when he could have been exposed to capital murder charges.
I meant:
Wilson seems to have confessed to his lawyers at a time when Logan could have been exposed to capital murder charges.
Mike G,
I wonder if you have considered this: assuming you think Wilson's confession should be admitted and is grounds for a new trial, and that Wilson would not have confessed if Illinois had the Massachusetts rule---- isn't Logan much better off under the Illinois rule than he would have been under the Mass. rule?
Under current Illinois law, the lawyers would probably not have helped Logan had they betrayed their client, because the evidence was not admissible. But, the Illinois rule did give them the chance and incentive to discover the information, and make arrangements to share it upon Wilson's death. Had they been working under the Massachusetts rule they almost surely would not have interrogated Wilson to determine whether he was involved in the McDonald's robbery, because they would not have wanted to get him killed.
By contrast, had Wilson not confessed to his counsel either because they avoided asking, or he knew he would be ratted out by his lawyers, this information would have never come to light.
If you view this evidence as grounds for a new trial, as you seem to, there would be a benefit net of the "moral dilemma" and brooding feelings experienced by the lawyers.
So this case might actually illustrate an argument against the Massachusetts rule.
You have a very good point, one that is quite worthy of consideration and which may be persuasive. All I can say is that Wilson did confess, and that it's not clear to me why his attorneys couldn't have broken confidentiality during Logan's trial to save him from a possible death sentence. (Yes, Logan didn't receive a death sentence but did the prosecutor ask for it? Info, please!)
By contrast, had Wilson not confessed to his counsel either because they avoided asking, or he knew he would be ratted out by his lawyers, this information would have never come to light.
I really do wish people wouldn't use this phrase in the discussion. I don't call lawyers "shysters" or "mouthpieces,'" nor do I call the police "pigs." Perhaps it's a term of art among lawyers; it's also a term of art among the Mafia. Its use does not make you look good.
I think this means Wilson would not have confessed had the lawyers been allowed to save Logan from prison by revealing Wilson's confession. The following is based on that interpretation
Did the two lawyers in question advise the Wilson that there was a confidentiality exception for death or injury, or financial harm caused by fraud, or to defend the lwayers against the possibility of harm? If not, was the client operating under a false notion that whatever he said was absolutely confidential?
Had there been an exception for saving someone from a long prison sentence, is there reason to think Wilson would have known that? If no other exception had been revealed, why would one expect the prison exception to have been revealed?
At the time of the confession was the client confident that none of the exceptions would allow the lawyers to talk? Did Illinois have a death penalty at the time? At the time of the confession, had Logan been sentenced? If Wilson confessed prior to sentencing, then he would have confessed into a potential death senence that would have allowed breach of confidence.
Unless the lawyers regularly had a detailed conversation with clients about condifentiality and its exceptions, is it reasonable there would have been no confession by Wilson?
I realize this entails knowledge of a detailed timeline, and I lack such knowledge. But the questions are prompted by the prior discussion.
But, on the topic, do defense lawyers regularly explain the confidentiality exceptions to their clients? Each client, every time, on the first interview?
And does some tax lawyer out there know if he is bound to confidentiality when a client tells him, during a billable tax consultation, that he killed little girls?
But it's not sufficiently close. It was under the Illinois rule and not the Massachussetts rule. Yes, it's true that Logan could have died, had he been convicted, sentenced to death, had all his appeals exhausted, and the lawyers not spoken out. But, with all those contingencies, the exception could swallow the rule. Suppose I represent a housing inspector, he confesses to me that he signed off on an inspection without actually seeing the house (further suppose that's a criminal act, though not necessary for privilege to apply). Now, if there is a default in the wiring, if it causes a house fire, if there is someone home at the time, and if that person is unable to get themselves out, and if the firefighters don't get them out, someone could die. Do you think I should reveal his confidence?
Mike G also says
So, you think we should change the rule so more innocent people spend longer in jail (and probably die in jail) in exchange for lawyers being relieved of a moral dilemma? Wow, and I thought those who were positing that lawyers only obey this rule for more money (ignoring the fact that Illinois PD's probably make less than 2/3 of the non-legal commenters on this board) were being dismissive of the issues in play here.
Had there been an exception for saving someone from a long prison sentence, is there reason to think Wilson would have known that? If no other exception had been revealed, why would one expect the prison exception to have been revealed?
Elliot123,
Wilson confessed to his lawyers after they directly questioned him about the McDonald's homicide. They were aware that Logan wanted to pin the murder on Wilson. If the Massachusetts rule were in effect, even if Wilson was unaware of it, the lawyers would have to explain to him before questioning him, that they could and would reveal his involvement if he confessed. This would rather obviously result in his not confessing.
The lawyers made this very clear on 60 Minutes.
They did not address if they explained anything to Wilson before questioning him, and did not address if they told him that they could and would reveal his involvement if he confessed.
So, Wilson confessed under rules which provided for an exception, and that exception was a very real possibility.
Therefore, I see little merit in the notion that Wilson was willing to confess under a death penalty exception, but would have withheld confession if a prison exception existed.
However, the rule -- we are told -- has been in effect for hundreds of years, while the policy that all defendants are entitled to any representation (even the harried and hurried kind that public defenders are able to give to misdemeanants) is only about 40 years old.
So that justification cannot fly. Better come up with a believeable one.
I get to watch PDs at work. Nobody does more with fewer resources. Tip of the hat to most of them. But be serious, when a PD meets the defendant for the first time in the courtroom at the time of making a plea, the argument that he needed this strange ethical rule so that his 'client' could spill his guts to him passes beyond parody into fantasy.
So you see no link between attorney-client priviledge and quality of representation, yet we're the ones who've passed beyond parody into fantasy?
Thank you very much. I hope I'm in the most of them.
He also says;
Never in my work as a PD, unless covering for someone else, have I met my client for the first time in the courtroom at the time of making the plea. If I am covering for another PD, I make it clear to the client that if he has questions specific to his case, I'm not the person to ask, and this change of plea hearing can be continued so he can ask the attorney who works his case.
More importantly, we know that's not what happened here. Wilson's attorneys knew Logan was trying to point the finger at Wilson, so they asked him about it. Has nothing to do with harried PD's meeting their clients on the eve of a plea deal.
But, you're right, for the most part there is less need for client trust after a plea deal has been worked out. But good luck getting your client to accept a deal you believe to be a good deal based on the evidence and his chances at trial if he doesn't believe in you and trust in you.
Shoddy, shoddy, results-oriented journalism. CBS News can do much better--and should. But that is for another thread.
The plea usually turns out to be NC.
Not so long ago, I saw a defense attorney (who had had plenty of time to consult) attempt to have his clients (pot case) sign off on a plea deal that had been written up 10 minutes earlier. Right then.
The judge told him to go consult with his clients. The lawyer said it was unnecessary. The judge told him it was necessary. The lawyer asked for a 10-minute recess and said he'd be ready after taht. The judge said he'd be back that afternoon and he had better have consulted with his clients fully and carefully in the meantime.
The defense lawyer missed his plane.
To be fair, it was a great deal for the defendants who were guilty as hell and got off with nuthin.
He was a private defense lawyer, too, not a PD.
I could tell you stories.
So, you think we should change the rule so more innocent people spend longer in jail (and probably die in jail) in exchange for lawyers being relieved of a moral dilemma? Wow, and I thought those who were positing that lawyers only obey this rule for more money (ignoring the fact that Illinois PD's probably make less than 2/3 of the non-legal commenters on this board) were being dismissive of the issues in play here.
I was all set to jump all over you for grossly mischaracterizing what I wrote ... when I realized: Oh crap ... That is one possible outcome of the scenario. Not the only one, but a plausible one. We both left intermediate steps out of our arguments.
I believe there are several possible outcomes if the Massachusetts rules are in place; in fact, since I don't recall the 60 Minutes segment stating that Wilson had been told about lawyer-client confidentiality rules and exceptions before he confessed, perhaps he would have confessed "in Massachusetts."
If Wilson had not agreed to allow the lawyers to come forward after his death, yes, Logan would still be rotting in prison ... and they would not have been able to do this had Wilson not confessed in the first place. It's quite plausible that he wouldn't have confessed "in Massachusetts." OTOH, with Illinois ethics rules, Logan is still in prison, and has not yet been granted a new trial or had his sentence commuted by the governor. He might be stuck there for life anyway -- although with all the publicity, I kinda doubt it.
In the 60 Minutes segment, the only reason given by the two lawyers that Wilson's confession could not have been used in court was that the judge would not have allowed the use of a confession that was obtained through violation of lawyer-client confidentiality. If this was in fact the only reason, then (contrary to what some here have claimed) the confession could have been used under Massachusetts rules. But would he have confessed under these rules? Probably not, and you'd be right about the outcome. (Dammit.) I think it's possible that Wilson still might have confessed -- he probably wasn't the sharpest knife in the drawer, and stupid or deranged people do odd things -- but it's by no means a sure thing either way.
But yes, what you wrote is a possible outcome of using the Massachusetts rules. Scratch my point (4), OK?
Can we each agree that the other is not crawling verminous scum with a bad case of moral leprosy?
Coventry said, "The jury was deciding whether to kill him."
Then he said said, "Morally there's very little difference and were torn about that, but in terms of the canons of ethics, there is a difference, you can prevent a death."
However, your statement is interesting. Do you contend the attorney can come forward only if his clent is going to kill? Is he prevented from coming forward if his client is in jail, someone other than his client is going to do the killing, and coming forward would reveal his client's confession?
Under that reading does the law prevent an attorney from revealing a 9/11 type plot if doing so would entail revealing a confession by his client who is curently in custody?
You don't say whether you are a PD or not. But, if you are, you're justice system is more screwed up than ours. If you are a private defense lawyer, you're kinda proving my point.
Mike G says;
Wrong. Just because Massachussetts allows an attorney to break attorney client confidentiality in certain circumstances does not mean that the breach of attorney-client confidentiality is a breach. It just means the attorney can't be disbarred for it. As to how it effects the admissibility, I don't know, it probably depends on Illinois evidentiary rules.
Mike G also says;
Hey,
I NEVER said you crawled...
:)
That may be the Massachusetts rule, but the Illinois rule says "...to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm."
That may be the Massachusetts rule, but the Illinois rule says "...to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm.'"
OK. Does the Illinois law prevent an attorney from revealing an imminent plan to fly a 747 into the Sears Tower in Chicago if doing so would entail revealing confidential information about his client who is currently in custody?
Given the spirited advocacy of client confidentiality shown by many here, who would support staying silent about the Sears Tower attack information if revealing it would violate client confidentiality?
Can any Illinois attorneys with Sears Tower offices comment?
Like I say, I could tell you stories.
All true, too.
If he gets one, it will be interesting to see what's allowed and what's excluded as evidence.
He has already had two trials. The "Wilson-did-it" defense was used both times. As I said above, Alton Logan does not seem to be either a poster-child for the wrongfully accused nor particularly worthy of a third trial.
You seem awfully sure of yourself on this matter. How do you know how much you don't know?
However, if Logan is found guilty, then the confidentiality rule is in less danger of being changed, and the lawyers are in less danger of losing control of the rule.
So, while I don't think any lawyers want to see an innocent man imprisoned, we can observe that a new not guilty finding will be a negative factor in maintaining the current situation.
It will be especially negative in Illinois, where it appears the Sears Tower and all its occupants can be sacrificed in the cause of maintaining client/lawyer confidentiality. St least that provision seems a slam dunk for change. Would any lawyers here object?
That's understandable. I wouldn't want to admit support for such a law either. But, after all the words we have had from the supporters of confidentiality, it's actually a sign of hope that they are too ashamed to acknowledge this interesting situation in Illinois.
Come on, folks. Won't any attorney stand up and defend Illinois? Perhaps I am mistaken that Illinois attorneys are obliged to allow thousands to dies for the confidentiality rule. If so, maybe someone knows better?
However, stay in the bunkers a bit longer and the thread will fall off the screen.
The Massachusetts ethics rules allow a lawyer at his or her own discretion to break lawyer-client confidentiality to prevent an innocent person from being imprisoned, but they do not compel the attorney to do so.
So ... would it be unethical to apply the same standards to a client as to a jury? Suppose a lawyer were to explain to his client: "My job is to look out for your interests. To do that, you have to tell me as much as possible about what really happened. If you're worried about telling me your secrets, remember — there isn't a court in the land that can force me to reveal what you tell me in confidence!"
Would that be ethical? Would it satisfy the folks here who don't like the Massachusetts exception?
(Yeah, you can quibble with the wording of the explanation to the client; I shortened it for clarity of exposition. You know what I mean.)