Tuesday, March 12, 2013

"The Case of the Innocent Lifer"

Stephen Gillers, Regulation of Lawyers
"The Case of the Innocent Lifer"

This issue illustrates how the duty of confidentiality to our client can conflict with broader moral obligations to the public interest. In the case of Alton Logan, two lawyers were forced to confront this dilemma after their client, Wilson, confirmed he was responsible for a third murder that Logan was later convicted for. The attorneys did not reveal Wilson’s confession until after his death in 2008.

Model Rule 1.6 forbids lawyers from revealing confidential information without the client’s informed consent. This rule is central to preserving the attorney – client relationship and thus is subject only to narrowly drawn exceptions. See MR 1.6(b). Here, Wilson’s lawyers could have argued that disclosure of Wilson’s confession was necessary to prevent certain death or substantial bodily harm to Logan under 1.6(b)(1). However, Logan received a life sentence and was not in danger of being executed. Yet, is a lifetime term of imprisonment not “substantial bodily harm”?

What if Logan was routinely subjected to severe beatings by guards or other prisoners? Additionally, what if the lawyers had learned that Logan had a terminal illness and would die within a matter of weeks unless he was released to receive medical treatment? Would disclosure of Wilson’s confession before his death be justified over his objection?

Additionally, though 1.6(b)(2) was intended to apply to financial crimes, it seems an argument could be made that disclosing Wilson’s confession was necessary under 1.6(b)(2). Wilson was arguably committing a fraud in some sense (defrauding the justice system?) by letting an innocent man be convicted for his actions. Further, Logan certainly suffered detriment to his financial and property interests by being incarcerated for 26 years. Further, maintaining confidentiality created substantial injury to the state's economic well-being - taxpayers spent hundreds of thousands of dollars to needlessly incarcerate an innocent man.

 Further, does it matter whether or not disclosing Wilson’s confession would actually have an adverse impact on him? Wilson was initially sentenced to death and then re-sentenced to life without the possibility of parole. If revealing the confession could result in Wilson being re-sentenced to death, it seems the lawyers were duty-bound not to reveal it.

While a lawyer’s duty of confidentiality to the client during and after the attorney-client relationship is clear, the rules do not provide a how-to manual for navigating difficult situations such as these. Lawyers that do breach client confidentiality, even in situations where the client is deceased and disclosure is arguably morally compelled, could face discipline. Adam Liptak’s article provides the example of public defender Staples Hughes, who was cited for professional misconduct and reported to the North Carolina bar by the judge after he informed the court that an innocent man was imprisoned for murders his recently-deceased client had committed alone.

According to the Statutes and Standards text, Alaska and Massachusetts allow breach of confidentiality to prevent wrongful incarceration. Learning of cases like Alton Logan, it is tempting to say that lawyers should always breach in this situation– it seems horrific to let an amorphous code of rules justify allowing innocent people to waste away behind bars.

Five months after Wilson’s attorneys revealed his confession, Alton Logan was released from prison after 26 years. He will receive a settlement of $10.25 million dollars in a lawsuit against the city. http://www.suntimes.com/news/metro/17576309-418/city-to-pay-1025-million-in-another-burge-case.html


1. The Liptak article contains the following quote from legal ethics professor Monroe Freedman: “I prefer to draw the line at the life-and-death situation…If that is extended to incarceration in general, it would end the sense of security clients have in speaking candidly with their lawyers.”

Do you agree? Should we as attorneys get to decide where this line is drawn?

2. When does a duty to public interest (or to justice) outweigh a duty to a former client? Did Wilson’s lawyers wait too long to breach confidentiality? Should Staples Hughes have remained silent after his client’s death? What would you have done?

3. Should an attorney have an obligation to maintain confidentiality after a client’s death? What about when information could exonerate an innocent person? What if the client expressly forbids the lawyer from disclosing this information after his death?

3. As a lawyer, can you ever be certain you are operating on correct information? What if your client is mentally-ill or made a confession under duress? For example, Andrew Wilson was severely tortured before he confessed to killing two policeman: http://www.chicagoreader.com/chicago/the-persistence-of-andrew-wilson/Content?oid=999832. Does it matter how certain you are of the information when you decide to disclose?

4. How should we take into account the public’s view of lawyers when creating such rules? On one hand, it is extremely important that clients are forthright and can expect the lawyer to maintain confidentiality. On the other hand, does it degrade the profession to have rules requiring lawyers to allow innocent people to be imprisoned in certain situations?

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