WHEN LAW PREVENTS RIGHTING A WRONG

   
A lawyer’s broad duty to keep clients’ confidences is the bedrock on which the justice system is built, [many legal experts] argue. If clients did not feel free to speak candidly, their lawyers could not represent them effectively. And making exceptions risks eroding the trust between clients and their lawyers in future cases. Experts in legal ethics are quick to point out that the various players in the adversary system have assigned roles and that lawyers generally must tend to a limited one.

“Lawyers are not undercover informants,” said Stephen Gillers, who teaches legal ethics at New York University. Indeed, said Steven Lubet, who teaches legal ethics at Northwestern, few clients would confess to their lawyers if they knew the lawyers might some day choose to disclose that information.

Most experts in legal ethics agree that lawyers should be allowed to violate a living client’s confidences to save an innocent man from execution, but not to free someone serving a prison term, however long.


“I prefer to draw the line at the life-and-death situation,” said Monroe Freedman, who teaches legal ethics at Hofstra. “That situation is sufficiently rare that is doesn’t present a systemic threat. If that is extended to incarceration in general, it would end the sense of security clients have in speaking candidly with their lawyers.”


A lawyer's broad duty to keep clients' confidences is the bedrock on which the justice system is built, [most legal experts] argue. If clients did not feel free to speak candidly, their lawyers could not represent them effectively. And making exceptions risks eroding the trust between clients and their lawyers in future cases. Experts in legal ethics are quick to point out that the various players in the adversary system have assigned roles and that lawyers generally must tend to a limited one.

"Lawyers are not undercover informants," said Stephen Gillers, who teaches legal ethics at New York University. Indeed, said Steven Lubet, who teaches legal ethics at Northwestern, few clients would confess to their lawyers if they knew the lawyers might some day choose to disclose that information.

The analysis does bend a bit, in two ways, in cases involving death.

Legal ethics rules vary from state to state, but many allow disclosure of client confidences to prevent certain death or substantial bodily harm. That means, several legal ethics experts said, that lawyers may break a client's confidence to stop an execution, but not to free an innocent prisoner. Massachusetts seems to be alone in allowing lawyers to reveal secrets "to prevent the wrongful execution or incarceration of another."

And there is debate over how a client's death affects a lawyer's obligation to keep the client's secrets. Most lawyers and courts say the obligation lives on. But it can be hard to live with the consequences.

The drive to right wrongful convictions can sometimes create an ethical tension for civil and criminal attorneys. A lawyer in any kind of practice, but most likely criminal defense, may learn from a client that they committed a crime ascribed to someone else. When an innocent person faces conviction, imprisonment, and in some cases death, an attorney mindful of the injustice occurring to a third party is still bound by the rules of confidentiality to honor their commitment to their client.

Interestingly, one of fiction's greatest detectives addressed this very issue. In "The Boscombe Valley Mystery," Sherlock Holmes investigated the murder of a local resident Charles McCarthy. His son, James, had been accused of the crime. Alice Turner, the daughter of John Turner, their neighbor and benefactor, believed in James' innocence and retained Mr. Holmes. After thoroughly examining the evidence, the inimitable detective confirmed her beliefs. He determined, without revealing to his client, that her father John Turner was responsible, not James McCarthy.

The victim had been blackmailing Mr. Turner over nefarious events from their former lives in Australia. While Mr. Turner, who did not have long to live, was disconcerted over the wrongful accusation of James, he chose to remain silent because he hoped that the prosecution would fall on its own.

However, it was likely that he would expire before James McCarthy's case was adjudicated. In order to avoid spending his last weeks of life in jail and to prevent his daughter from learning about his secret, Mr. Turner agreed to Holmes' inventive compromise:

"Holmes rose and sat down at the table with his pen in his hand and a bundle of paper before him. 'Just tell us the truth,' he said. 'I shall jot down the facts. You will sign it, and Watson here can witness it. Then I could produce your confession at the last extremity to save young McCarthy. I promise you that I shall not use it unless it is absolutely needed.'"1

This Holmesian approach anticipated the difficulties in resolving the thorny issue of protecting confidentiality and preventing a miscarriage of justice. And revealed how this problem can arise in many professional contexts beyond attorney-client.