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Cruelty Impersonating Virtue

Q:  What would happen if you were a government lawyer and you kept a man in jail for 26 years knowing he was innocent?

A:  You'd be run out of the profession, for starters.  And not a moment too soon.

Q:  What would happen if you were a defense lawyer and you kept a man in jail for 26 years knowing he was innocent?

A:  You'd get on Sixty Minutes to talk about how wonderfully devoted you are to the  --  let's hear it one more time  -- "highest callings of the profession."

Note to defense (and all other) lawyers:  There is something more important than your client.  That would be basic human decency.


ABA Model Rule 1.6(b)(1):

A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

"to prevent reasonably certain death or substantial bodily harm;"

Does wrongful imprisonment constitute "substantial bodily harm"? Perhaps, the rules need to add "or wrongful imprisonment or punishment of another"

Personally, I think if an attorney revealed such information, any state bar discipline review would likely find a way to justify it, no attorney wants to risk his / her license on that outcome -

Your comment raises many issues.

I don't think the Rule should be subject to an interpretation that stretches it (which is the attitude I take toward legal rules generally). You're right, it needs to be changed.

You're also right that the disciplinary committee would find a way to justify (or excuse) the revelation of a client confidence in a case like this. But I disagree that the attorney would be risking his license; the most that could possibly happen would be a reprimand.

My principal point, though, is that it cannot make any difference to a person with a conscience or anything close to normal morals WHAT the bar would do. The bar is living in a world where the client is everything. This attitude excuses, not merely the appalling behavior in this case, but the rampant sleaze and dishonesty -- all allegedly for the client -- for which our profession has become infamous.

It's a cesspool. I knew by the time I was ten years old that hiding information like this is wrong, and I expect everyone else knows the same thing by the same age.

The whole point of morality is to do what basic human decency compels no matter if you have to pay a price for it. If allowing an innocent person to suffer imprisonment for a quarter century is the price of being able to practice law, then the price is too high.

You can go work in a factory, or you can do retail or sell insurance. But you do not knowingly do this to another human being.

It sounds like comment c to the third Restatement of the Law Governing Lawyers considers "imprisonment for a substantial period" to be "substantial bodily harm" permitting disclosure of confidential client communications. The Restatement, of course, isn't the law in Illinois and it doesn't actually cite any authority for its position.

Illinois Ethics Opinion 84-2 appears to prohibit disclosure of confidential client information that proves that a defendant is innocent of a crime. In that opinion, a public defender represented a witness, B, in the trial of another guy, A, for forgery. B apparently told the public defender that he did it, so the A was innocent. B asserted his 5th Amendment privilege and the public defender interjected to tell the judge that he had privileged information proving that A was innocent, but that he couldn't produce that information since it wouldn't be admissible anyway. The court convicted A and the Illinois ethics body said the public defender's statements violated his duty to maintain confidentiality.

So it seems pretty likely that these attorneys would have violated the ethics rules by disclosing that their client murdered the guy. Getting your client executed as a result of an ethics violation seems pretty likely to get you disbarred. So it seems like a lot harder decision than Mr. Otis makes it out to be.

I won't say what I would have done in their situation since 1) I'm not in their situation, so I can't say for sure; and 2) saying I would ignore ethics rules probably won't help me get approval to take the bar exam.

Your most revealing comment by far is your last, in which you scamper away from saying how you would have reacted.

I'm going to cut you a break here by presuming you'd rather do something else for a living (and there are lots of good things to do besides law) than become a compliant member of the bar by keeping an innocent man in jail for 26 years.

Am I right about that?

The problem is any ethical rule condoning the suppression of information which would prove a person's innocence is a terrible rule and it is a terrible professional culture that condones it.

I'm not going to hypothesize as to how I would handle it myself except to say, I'd figure out a way to get the information out. I'll leave it at that.

Totally. Nailed. It.

I'm no lawyer, just a guy with a regular job and while I agree those lawyers given the uniqueness of the situation should have gotten creative and found a way to get the information out there, a problem you choose to ignore in painting all prosecutors as white knights is the ethics of a DA that would even prosecute a case with no physical evidence, only eyewitnesses that the police had to "search" for while ignoring three credible alibi witnesses, not to mention the obtuseness of juries that convict these an so many other innocent defendants on the flimsiest of evidence. Beyond a reasonable doubt? What a joke.

At no point have I "painted all prosecutors as white knights." There are rotten apples in every barrel including that one.

If a point be made of it, however, prosecutors are required by the canons of ethics to be forthcoming with the truth, and for by far the most part, they are.

By contrast, the defense bar is NOT required to be forthcoming with the truth, particularly if the truth may be damaging to the client. This case is a particularly appalling illustration of why this "client-first-truth-second-and-justice-be-damned" ethos is in need of re-thinking.

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