Among the courses that I teach is Professional Responsibility—Legal Ethics—which is a subject covered on every state bar exam in the country. The professional code of ethics—the Model Rules of Professional Conduct—sets out in statutory form a log of rules that cover such varied topics as candor to the tribunal and third parties, conflicts of interest between former, current, and prospective clients, the safekeeping of client property, and a list of deeds that amount to lawyerly misconduct. Falling afoul of these rules puts the attorney in danger of a range of penalties, from private reprimand all the way up to disbarment.
Arguably the most important category of rules is that surrounding client confidences. The logic behind the rule is that for a client to trust an attorney with his representation, he must have faith that his attorney won’t betray him. A client who divulges information in the belief that his lawyer will help him navigate the waters of legal peril, then finds that the attorney is using that information against him or exploiting that information for the lawyer’s own personal gain, can rightly complain of disloyalty. The legal profession has enough reputational problems, and betraying client confidences is one with which it has scant patience.
Of course, there are exceptions. For example, when someone’s life is in danger, or a fraud is being perpetrated that threatens financial ruin, etc., the attorney is allowed to speak, discreetly. But under most state’s instantiation of the rules, when a crime has already been perpetrated, and the harm cannot be averted or mitigated, the attorney is not at liberty to reveal what his client has told him. A prosecutor must disclose exonerating evidence, but a criminal defense attorney is not allowed to do so.
Again, the concern is with the accused being able to trust his lawyer to represent him zealously, and the observance of the roundly-appreciated American belief that everyone, without exception, deserves a defense. A criminal defendant could never secure an attorney, let alone plea bargain, without that assurance.
But it is in the context of criminal law that the observance of this canon takes the greatest toll. For the circumstances of dual loyalties are put under great strain. It is one thing for an accused client to tell you that he is responsible for a crime (a choate matter, not an inchoate one), but another entirely when someone else, an innocent person, is being held for a crime the client confesses to committing. The following is a famous example (full text here):
Two African American men shot and killed Lloyd Wickliffe and wounded Alvin Thompson on January 11, 1982, in an attempted armed robbery of a McDonald’s restaurant on the far south side of Chicago where the victims were security guards.
The next month, Alton Logan and Edgar Hope, Jr. were arrested and charged with murder and attempted murder based on identifications by the surviving guard—who was right about Hope, but wrong about Logan.
The week after Hope and Logan were charged, Andrew Wilson was arrested and charged with the unrelated murders of Chicago police officers William Fahey and Richard O’Brien. Hope then confided to his lawyer, Marc Miller, that he had committed the McDonald’s crime with Wilson—not Logan. When Miller told Wilson’s public defenders, Dale Coventry and Jamie Kunz, what Hope had said, they confronted Wilson. He told them that, indeed, he and Hope had committed the McDonald’s crime.
As obvious as it was to Coventry and Kunz that Logan was innocent, they were ethically bound not to reveal, during Wilson’s lifetime, what he had told them in confidence. They did, however, prepare a notarized affidavit describing Wilson’s confession to them, which they kept in a locked box. There it would remain for a quarter of a century—until Wilson died of natural causes in prison on November 19, 2007. At that point Coventry and Kunz opened the box and broke their long silence.
The case created an uproar and was the subject of a 60 Minutes segment several years ago. After a set of procedural delays, Alton Logan was finally released—some twenty-six years after his wrongful incarceration. The city of Chicago settled a federal lawsuit with him to the tune of $10.25 million.
But in the end, what can be said of this matter? The policy behind the rule being what it is—client loyalty—is one with which most would agree, as would the belief that in America, even the most heinous of criminals deserves a defense. It is one of the hallmarks of our jurisprudential patrimony. Still, the circumstances of the Logan case are ones that most would find repulsive: to let a man languish in prison for twenty-six years, knowing he is innocent, and that you could free him with no more than a simple statement?
Teaching at a Catholic law school, this particular quandary has all the more relevance in the class, as the higher law in furtherance of which the mission serves would counsel a behavior well at odds with the one chosen by the attorneys in Logan’s case. The complex, and sometimes conflicting, interplay between two ethical obligations is more than just a parlor game in such cases.
Professional sanction—losing one’s livelihood—is no small matter, and neither is the betrayal of a client’s trust. On the other hand, the cost of conforming to a rule that would imprison an innocent man weighs on the opposite side of the scale.
But when one stands in the docks of a conscience informed by the rule that truth, and life, are the highest goods, there can be only one answer to this a dilemma, regardless of the cost. In this matter, treason must wear a halo, and the lawyer must find his own defense for divulging otherwise protected secrets, wherever and however he may.
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Written by: A.G. Harmon
A.G. Harmon teaches Shakespeare, Law and Literature, Jurisprudence, and Writing at The Catholic University of America in Washington, D.C. His novel, A House All Stilled, won the 2001 Peter Taylor Prize for the Novel.
Image above by Weiss and Paarz, used with permission under a Creative Commons license.