Ethical Conundrum

[alaskaguy]

Did anybody watch 60 minutes this past Sunday?

There was a story about a guy, Alton Logan who was convicted of a murder in 1982. Despite testimony that Logan was at home when the murder occurred, a jury found him guilty of first degree murder. Meanwhile, two attorneys — Dale Coventry and Jamie Kunz — knew Logan was innocent. How? Because they were representing another client, Andrew Wilson, whom had confessed to them that he was the killer. But because of the attorney-client privilege, Coventry and Kunz kept Wilson’s confession to themselves. Logan, wrongly convicted, has been in jail for the past 26 years.

The attorneys say they were so tormented over Logan’s imprisonment that they convinced Wilson to let them reveal, after Wilson’s death, that Wilson was the real killer. Late last year, Wilson died. The two attorneys finally took their affidavit out of the lockbox, and called Logan’s lawyer, public defender Harold Winston — who agrees that Kunz and Coventry had to remain silent until Wilson died.

For those legal beagles out there why couldn't the attorney's have resigned representing Alton Logan?

 

[Cy Hard]

One word - LAWSUIT!!!!

 

[Cyclone711]

Three words-BROKEN LAW SYSTEM

 

[rbrook]

I guess I would think that they could have anonomously steered the investigation in the right direction.

 

[jumbopackage]

It's a really crappy situation, all things considered, but I don't know how you fix that particular situation.

 

[IsUaClone2]

Did anybody watch 60 minutes this past Sunday?

There was a story about a guy, Alton Logan who was convicted of a murder in 1982. Despite testimony that Logan was at home when the murder occurred, a jury found him guilty of first degree murder. Meanwhile, two attorneys — Dale Coventry and Jamie Kunz — knew Logan was innocent. How? Because their client, Andrew Wilson, whom they were defending for killing two policemen, confessed to them that he was the killer. But because of the attorney-client privilege, Coventry and Kunz kept Wilson’s confession to themselves. Logan, wrongly convicted, has been in jail for the past 26 years.

The attorneys say they were so tormented over Logan’s imprisonment that they convinced Wilson to let them reveal, after Wilson’s death, that Wilson was the real killer. Late last year, Wilson died. The two attorneys finally took their affidavit out of the lockbox, and called Logan’s lawyer, public defender Harold Winston — who agrees that Kunz and Coventry had to remain silent until Wilson died.

For those legal beagles out there why couldn't the attorney's have resigned representing Alton Logan?

This is only that start of what's wrong with the lawyering profession. That's criminal in book, hiding behind client/attorney privilege. If they felt so bad they should have gone to court, stated that they knew who was guilty but, because of client/attorney privilege they can't reveal the real criminal, they would serve the time until they could reveal. That would truly be protected the innocent versus protecting a source of income.

Further, I'm sure some smart economist could come up with a formula that would prove that lawyer's fees and settlements that lawyers dream up (most all class action suits and some woefully overcompensated product liability suits) are sucking the vitality out of the gross national product. They don't add anything in my book but they sure can hinder economic growth.

 

[alaskaguy]

The attorney's claimed had he received a death sentence that they would have revealed the information. His sentence was life imprisonment.

 

[thunderdave]

I'm pretty sure David Kelly had an episode fairly similar to this once on The Practice.

 

[jbhtexas]

The attorney's claimed had he received a death sentence that they would have revealed the information. His sentence was life imprisonment.

How considerate of them... :arghh:

 

[Kyle]

One reason I don't want anything to do with criminal defense.

For those legal beagles out there why couldn't the attorney's have resigned representing Alton Logan?

I'm assuming you mean Wilson (the actual killer). Resigning their representation of Wilson would not have then allowed them to disclose privileged information. They would owe the same duty of confidentiality to their former client as they would a current client.

Basically, the legal profession takes confidentiality very seriously. The theory is that a strict rule of confidentiality with regards to client communications fosters better communication and full disclosure on the part of clients. This in turn allows lawyers to better do their job, and perhaps to even convince their clients to take a more appropriate course of action. The general benefits of the rule are seen as outweighing the occasional negatives.

For example, it seems logical in the present case that Wilson would not have ever even told his lawyers about the murder if he knew that they could turn around and reveal that information to his detriment. The rule may have actually saved a life in this case.

Here is the ABA Model Rule of Professional Conduct most on point:
Model Rules of Professional Conduct - Rule 1.6 Confidentiality Of Information - Center for Professional Responsibility

Rule 1.6 Confidentiality Of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

• (1) to prevent reasonably certain death or substantial bodily harm;
  (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
  (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
  (4) to secure legal advice about the lawyer's compliance with these Rules;
  (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
  (6) to comply with other law or a court order.

The attorney's claimed had he received a death sentence that they would have revealed the information. His sentence was life imprisonment.

This rule also explains why they would have revealed the information if Logan had received a death sentence as compared to life. If Logan was facing death, the disclosure would have been authorized by 1.6(b)(1) because it would have prevented reasonably certain death.

I guess I would think that they could have anonomously steered the investigation in the right direction.

This would also likely be prohibited by the rule. Revealing information that could foreseeably lead to the discovery of confidential information is also prohibited. There is also a duty of loyalty to one's client that would prevent them from steering the investigation towards their client.

I really don't like this outcome all that much, but I can certainly see the justification for the rules that are in place. I actually recently asked my professors about whether I could broaden my discretion to disclose (to cover any information that would prevent future harm) by including some sort of language in my standard contract for employment with clients. Basically, I was told that (1) I wouldn't have any clients, and (2) that I would probably be subject to discipline if I revealed information authorized by the contract but not by the ethical rules.

As an additional piece of information, if this is the case I'm thinking of, the lawyers asked some sort of state ethics board for an advisory opinion on more than one occasion. Both times the board told them they could not disclose the information.

 

[superdorf]

I don't think being an attorney is worth your soul... They should have come forward... You can find another job.

 

[Kyle]

I'm pretty sure David Kelly had an episode fairly similar to this once on The Practice.

I'm pretty sure you're right. Didn't it involve a kid with a heart condition though?

 

[Kyle]

I don't think being an attorney is worth your soul... They should have come forward... You can find another job.

How considerate of them... :arghh:

Three words-BROKEN LAW SYSTEM

Question for those of you who obviously don't agree with this: What type of rule would you suggest the legal profession adopt with regards to confidentiality of client disclosures?

I posted the current rule, and pointed out some of its advantages earlier. Chief among those advantages are that it allows for full client disclosure, thus allowing for more effective representation and perhaps even giving the lawyer a chance to alter the conduct of the client that he or she otherwise would not have had. One obvious disadvantage is that situations like the one in question can arise. I think there is definitely room for debate on the role of confidentiality in the profession, but I also think that a legitimate alternative has to be offered up in order to really argue that the current rule sucks.

 

[Wesley]

Shame on those attorneys. Must be from a dark Empire. Taking the side of a known murderer is not acceptable in my view.

 

[jbhtexas]

To be frank, any legal system that would procedurally sacrifice the freedom of an innocent man to "protect" a confessed murderer does not deserve the respect of its citizens. Not only does it not deserve the respect of its citizens, it deserves their scorn.

Since 2001, in Dallas county, 15 people convicted of serious crimes like murder and rape back in the 1980's have been exhonerated after DNA testing of evidence revealed that they were innocent.

 

[Kyle]

To be frank, any legal system that would procedurally sacrifice the freedom of an innocent man to "protect" a confessed murderer does not deserve the respect of its citizens. Not only does it not deserve the respect of its citizens, it deserves their scorn.

Since 2001, in Dallas county, 15 people convicted of serious crimes like murder and rape back in the 1980's have been exhonerated after DNA testing of evidence revealed that they were innocent.

I don't think your second paragraph supports your first. What would you have changed about the procedure back in the 80s?

I also highly doubt the real purpetrators of those 15 crimes confessed them to their attorney.

I'm curious as to how you would respond to my previously posted question.

 

[jbhtexas]

Question for those of you who obviously don't agree with this: What type of rule would you suggest the legal profession adopt with regards to confidentiality of client disclosures?

Add another clause to 1.6(b):

1.6(b)(2) In the case where the client has confessed to the lawyer the commission of a crime, to prevent an innocent party from being imprisoned for said crime.

Shift everything else down one. The other ones really aren't all that important relative to the first two.

That code allows the lawyer to reveal confidential information to mitigate a financial loss, but does not allow the lawyer to reveal confidential information to prevent an innocent party from going to jail. How messed up is that??? What's more important...money or an innocent person's freedom? According to that code, it's money.

Maybe this is an unfair characterization on my part, but it seems to me that in our legal system, when the rights of the violated or innocent come into conflict with the rights of the guilty, our system seeks to protect the rights of the guilty over the rights of the innocent/violated. That's not justice, and it needs to change.

It seems to me that it is in a criminal's best interest to disclose the truth to his lawyer, so that his lawyer can present the best case. If the criminal wants to risk not making full disclosure to his lawyer, that should be his choice. It shouldn't require a rule of conduct to encourage common sense behavior, especially a rule that can potentially deprive an innocent person of freedom.

This isn't rocket science (although lawyers have apparently turned it into such)...just do the right thing. It's not right for an innocent person to be punished for a crime he did not commit while the person guilty of that crime goes free. If the system is not encouraging the right thing, then the system is broken.

Kyle, you are going into a profession that has been messed up for years. Maybe you can do something to straighten it out. Our nation would be indebted to you. And it would be really cool if an ISU Cyclone fanatic could fix it...

 

[jbhtexas]

I don't think your second paragraph supports your first. What would you have changed about the procedure back in the 80s?

You are correct...the second paragraph doesn't support the first directly. The second paragraph was more an expression of my frustration with our legal system and how it seems to fail the innocent.

 

[Phaedrus]

Hmmm.... And here I was, thinking that a lawyer couldn't knowingly aid and abet a crime... Just like a "normal" citizen. And evading prosecution for murder happens to be... a crime.

I'm thinking the lawyers in this case are both guilty of "accessory after the fact to murder", and should be prosecuted within the fullest extent of the law. But, good luck finding a lawyer, or a judge who will prosecute his fellow lawyers in this.

Question for Kyle: Is this "law" you are quoting, or are these just some extralegal "ethical guidelines" dreamed up by the ABA?

 

[superdorf]

Question for those of you who obviously don't agree with this: What type of rule would you suggest the legal profession adopt with regards to confidentiality of client disclosures?

I posted the current rule, and pointed out some of its advantages earlier. Chief among those advantages are that it allows for full client disclosure, thus allowing for more effective representation and perhaps even giving the lawyer a chance to alter the conduct of the client that he or she otherwise would not have had. One obvious disadvantage is that situations like the one in question can arise. I think there is definitely room for debate on the role of confidentiality in the profession, but I also think that a legitimate alternative has to be offered up in order to really argue that the current rule sucks.

I don't care what the "rules" are... I would step up and do the RIGHT thing. I guess I couldn't be a lawyer... at least a criminal one then.