Should There Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality?

Back in 2008, I saw saw a segment on 60 Minutes about Alton Logan. In 1982, Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald‘s. What the jury that convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed. The problem for Logan was that Wilson made that confession to two public defenders, who felt duty-bound not to disclose this client confidence pursuant to the Illinois version of Model Rule of Professional Conduct 1.6, which, in its present form, states that

(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; 

(6) to comply with other law or a court order; or

(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. 

(c)  A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

That said, the public defenders did get Wilson to sign an affidavit to this effect along with permission to present it to a court after his death. When Wilson did in fact pass away, the public defenders came forward with the affidavit, and Logan was exonerated and released 26 years after he was wrongfully convicted.

In response to the case, I felt compelled to write an essay, Ordeal by Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality. The central argument in the article is that an attorney who comes forward with a client confidence to correct or prevent a wrongful execution or incarceration is doing so “to prevent reasonably certain death or substantial bodily harm.” You can see my arguments in the essay; I think they are bolstered by newish evidence that, “For every year spent behind bars, a person’s overall life expectancy decreases by two years.”

My exception was modeled after an actual wrongful execution/incarceration exception contained in Massachusetts Rule of Professional Conduct 1.6(b)(1). Since my essay, a similar exception has been created in Alaska. New York and New Jersey (and possibly other states) have also proposed similar exceptions, although they have not been adopted.

I’m raising this issue because, for the second year in a row, a will Skyping into Andrew George‘s “Wrongful Convictions” Seminar at the George Washington School of Law. I will be very interested to hear the students’ thoughts.

But what about readers? Should an attorney be allowed to testify that her client confessed to the crime that led to the conviction of another man? Does it change things if it was a capital offense? And what if the client confidence is not about a confession? What if the client told his attorney that some third party committed the crime? What if the client testified at the defendant’s trial, and the attorney knows that some portion of that testimony was untruthful? And what if the confidential information is more damaging to the prosecution than the client?