When the law preserves injustice: issues raised by a wrongful incarceration exception to attorney-client confidentiality.

AuthorHasbani, Inbal
  1. INTRODUCTION

    The United States is built upon a foundation of liberty, (1) a value that is reflected in nearly every facet of American law and culture. Perhaps in part because of this fundamental value, the idea of wrongful incarcerations is particularly repugnant. In the past several years, two wrongful incarceration cases have garnered especially heightened media attention. Both cases involved lawyers who were privy to information that would help free wrongfully incarcerated men, but were barred from coming forward because of confidentiality restraints associated with their relationships with their clients. In other words, these lawyers were bound by the judicial system--a system Americans would like to believe secures liberty, justice, and freedom--from freeing innocent men from jail.

    In one case, two attorneys, Dale Coventry and Jamie Kunz, knew that their client, Andrew Wilson, had committed the murder for which another man, Alton Logan, was serving a life sentence. (2) Wilson, who had confessed to the crime while Logan was being tried, was serving a lifetime sentence himself for two other murder convictions. (3) Unsurprisingly, Wilson did not authorize his attorneys to disclose his incriminating confession, and so the attorneys were required under Illinois ethical rules to remain silent. (4) In the face of this ethical quandary, the attorneys, along with Mark Miller, the attorney representing the alleged co-defendant in Logan's case, signed an affidavit stating that they had information from privileged sources that Logan was not responsible for the murder. (5) Wilson gave his attorneys permission to reveal the exonerating information in the event of his death. (6) Twenty-six years later, after Logan had spent nearly half his life in jail, Andrew Wilson died, and the attorneys revealed Logan's innocence] Soon after, Logan was released from prison. (8)

    Similarly, Staple Hughes, a North Carolina lawyer, revealed his client's confession in 2004, hoping to free Lee Wayne Hunt from his life sentence in prison. (9) Hughes claimed that twenty-two years earlier, his now-dead client confessed that he acted alone in committing a double murder for which another man, Lee Wayne Hunt, was serving a life sentence. (10) Hughes claimed that after his own imprisoned client died, he felt it was "ethically permissible and morally imperative" that he come forward with the exonerating information. (11) The law, however, binds attorneys to remain silent even after their clients' deaths, (12) and Hughes did not receive his client's consent to reveal the confidential information. (13) Judge Jack Thompson of the Cumberland County Superior Court in Fayetteville refused to consider Hughes' testimony during a hearing in 2007 in response to Hunt's request for a new trial, claiming, "Mr. Hughes has committed professional misconduct." (14) Although Hughes was referred to the North Carolina Bar for violating attorney-client privilege, the complaint was dismissed in January 2008 in a confidential decision. (15) Meanwhile, Lee Wayne Hunt remains in jail despite the apparently exonerating information. (16)

    The lawyers' silence in the Alton Logan and Lee Wayne Hunt cases produces a sense of outrage towards the ethical constructs that are meant to guide lawyers in the judicial system. The decades-long prison terms of innocent men force us to question whether the ethical guidelines are ethical at all. What kind of system allows a man to serve day after day in prison when lawyers know he is innocent? When the moral premise of the judicial system is to establish justice, how can the same judicial system require a lawyer to remain silent as innocent men and women remain in jail unjustly?

    The answers, unfortunately, are more complicated than they seem. Although the end goal of the judicial system is certainly to produce justice, lawyers' first obligations are almost always to their clients, in the hopes that the adversarial system will weed out the truth from fiction and ensure that justice is served. (17) Thus, lawyers arguably represent a means to an end, and the means require zealous advocacy on behalf of their clients, (18) even in the extreme case of a wrongful conviction.

    However, every rule has exceptions, and attorney-client confidentiality is no different. In certain situations, the law allows confidentiality to be broken in order to preserve an overriding value, such as the prevention of substantial bodily harm or reasonably certain death. (19) Similarly, an exception for wrongful incarcerations could be promulgated as a declaration of society's overriding interest in preventing innocent men and women from serving sentences. However, in introducing such an exception, several issues are raised that are not immediately intuitive. This Comment is an attempt to frame some of these concerns and shed light on the issues presented by a wrongful incarceration exception. Although a wrongful incarceration exception risks chilling attorney-client discussions and raises a number of practical issues, such as when an attorney should disclose exonerating information and whether or not such a disclosure violates a client's constitutional rights against self-incrimination, this Comment argues that a rule allowing attorneys the discretion to come forward with confidences to help save the wrongfully convicted is worth the costs.

    Part II of this Comment begins by providing background information on the judicial system's requirements of lawyers, including attorneys' ultimate duty to their clients and their obligations under attorney-client confidentiality. Part III proceeds with an analysis of the wrongful incarceration exception, with seven subparts. Subpart A discusses the possible chilling effect of a new exception on attorney-client discussions. Subpart B considers the proposition that the substantial bodily harm and reasonably certain death exception should be interpreted to include an exception for wrongful incarcerations. Subparts C, D, E, and F raise practical issues with a wrongful incarceration exception, including, respectively: the length of conviction after which an attorney would be required to disclose exonerating information; the proper timing procedurally for an attorney to come forward; the possibility that a wrongful incarceration exception violates a client's constitutional rights against self-incrimination; and finally, the difference in attorney behavior that could be expected to result from a wrongful incarceration exception. Subpart G concludes by suggesting that a discretionary disclosure rule would best solve the issues presented by a wrongful incarceration exception to attorney-client confidentiality.

  2. BACKGROUND

    1. THE LAWYER'S DUTY

      A trial, the Supreme Court has asserted, is a "search for truth." (20) This assertion resonates easily with intuitive conceptions of what a judiciary is meant to establish. Since justice is the prevailing goal of a judicial system, then truth, one would think, must be its unerring companion. But, herein lies the paradox. Although truth may be the end goal of every trial, the lawyers playing their parts serve a different end--advocacy on behalf of their clients--that may very well be at odds with the search for truth. Although such a conception of a lawyer's duty may at first glance seem to conflict with the overlying goal of the judicial system--and in fact, in some situations it does--the American judicial system is built upon this fundamental premise in its pursuit of justice.

      The legal profession is guided by rules that recognize a lawyer's duty as a "zealous advocate for the client, putting that person's interest ahead of all others." (21) As far back as 1820, Lord Brougham famously described the role of the lawyer:

      [A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is the client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion. (22) Aside from a few exceptions, the legal profession is built on a standard of strict attorney loyalty to the client. In fact, despite the conundrum that lawyers face as being both advocates on behalf of their clients--clients who may have little to gain from the ascertainment of truth--and officers of the court "presumably working to advance the truth," (23) the ethical guidelines often require the lawyer's duty to the client to be the lawyer's ultimate obligation.

      The Model Rules of Professional Conduct (Model Rules), which is the ethical code upon which most states base their ethics guidelines for lawyerly conduct, do not once "directly reference truth in the provisions that establish the precepts for the proper practice of law." (24) Devotion to the client, not truth, is the lawyer's ultimate duty. Although

      certain rules discuss the requirement that lawyers not introduce false evidence, mislead a third person, or act deceptively or fraudulently ... nowhere do they instruct a lawyer--even on representing a client in an adjudicatory proceeding--to ensure that the result of the legal representation reflects what actually happened in the transaction that is the substance of the dispute. (25) In fact, the Model Rules go so far as to require the lawyer to cross-examine a witness, in an effort to undermine her credibility, even if the lawyer knows the witness is truthful. (26) Similarly, a criminal defense attorney's mission is to defend a guilty client, even when that defense results in the client's acquittal. (27) Such advocacy can hardly be framed as a "search for truth" and may, at times, conflict with the...

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