Quid leges sine moribus vanae proficient: a balancing approach to the postmortem application of the attorney-client privilege.

Author:Maggio, Kevin J.
 
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  1. INTRODUCTION

    There are many controversial issues within the legal system--matters that have been debated time and time again in an effort to reach the "correct" answer. The nature of our system allows the law to develop over time, adapting to new circumstances, new problems, and new obstacles. In some ways, the evolutionary nature of our law is comforting, providing hope that what one sees as wrong will someday be corrected. However, this evolution happens slowly, often spanning decades, and some individuals just do not have the time to wait.

    Lee Wayne Hunt is one of those individuals. Mr. Hunt is currently serving a prison sentence for two murders that another man admitted to committing. (1) However, that admission is protected by the attorney-client privilege, a legal rule that allows communications between an attorney and a client involving legal advice or assistance to remain confidential unless the client permits the attorney to divulge the communications. (2) In 1986, Jerry Cashwell confessed to his attorney, Staple Hughes, that he had murdered Roland and Lisa Matthews, the same two murders for which Mr. Hunt was convicted. (3) In 2007, four years after the death of his client, Mr. Hughes attempted to testify about his client's admission in an effort to secure a new trial for Mr. Hunt. (4) However, the judge cautioned Mr. Hughes that he would be reported to the state bar if he disclosed information that is protected by the attorney-client privilege. (5) Despite this warning, Mr. Hughes testified at the hearing about the admission his now-deceased client made twenty-two years earlier. (6) The judge ultimately held that the evidence was not compelling enough to merit a new trial, despite its probative value, and Mr. Hunt remains in prison to this day. (7) Mr. Hughes later reflected on his reaction to this difficult experience:

    The only consequence for me is the bitterness and anger I feel over Mr. Hunt.... I go home, have a glass of wine, work in the yard. And there's a guy sitting in a prison camp two counties away, and my feeling is he's going to be there for the rest of his life. (8) As of 2014, Mr. Hunt has been in prison for twenty-eight years for a crime he did not commit. (9) "And you shall know the truth, and the truth shall make you free," (10) unless of course the truth is protected by the attorney-client privilege.

    Alton Logan also spent many years waiting for our laws to bend towards justice. In 1982, Mr. Logan was convicted of the murder of a McDonald's security guard in Chicago and sentenced to life-in-prison. (11) In 2008, after Mr. Logan had served twenty-six years in prison, "new" information became available that proved Mr. Logan was in fact innocent. (12) However, there is some question as to whether this information can be fairly characterized as new. Attorneys Dale Coventry and Jamie Kunz knew that Mr. Logan was innocent even before he was sentenced. (13) They knew this because one of their clients, Andrew Wilson, admitted to them that he had murdered the security guard. (14) As their client, Mr. Wilson enjoyed the benefits of attorney-client privilege, which presented Mr. Coventry and Mr. Kunz with a difficult dilemma: morality required them to speak out, but the law required their silence. (15) In response to repeated questions about why he did not divulge Mr. Wilson's admission, Mr. Coventry noted that he could not have done so without potentially exposing his client to criminal liability, and even if he had tried, the disclosure of privileged information would likely not have been allowed in court. (16) Fortunately, after years of effort, Mr. Coventry and Mr. Kunz were able to convince Mr. Wilson to allow them to disclose his admission following his death, which occurred in 2007. (17) Mr. Wilson's consent allowed his admission to come into court as evidence of Mr. Logan's innocence, resulting in Mr. Logan's release from prison in May 2008. (18) Upon release, Mr. Logan remarked: "I never stopped giving up hope. I've always believed that one day is gone--somebody's gonna come forth and tell the truth. But I didn't know when.... All I wanted was the truth. All I want is the truth." (19)

    While these two stories seem unbelievable, they are hardly the only two instances where the attorney-client privilege protected the confidences of a client rather than ensuring that the truth came out at trial. Like Mr. Hunt and Mr. Logan, Bill Macumber was also convicted for murders that another man admitted to committing. (20) In 1975, Ernest Valenzuela admitted to attorney Thomas O'Toole that he had committed the murders for which Mr. Macumber was charged. (21) After Mr. Valenzuela's death, Mr. O'Toole requested to testify about his client's admission at Mr. Macumber's trial, but the trial judge denied his request, citing the attorney-client privilege. (22) Mr. Macumber was found guilty, sentenced to life in prison, and was not released until he served thirty-seven years. (23) The Arizona Justice Project, an organization dedicated to advocating for wrongfully convicted individuals, filed multiple motions questioning the judge's refusal to hear the testimony of Mr. O'Toole before its efforts were finally successful. (24)

    There are likely many attorneys across the country that must battle every day with the conflict between their legal obligation to preserve their client confidences and their moral obligation to ensure a just outcome is reached. (25) Is such a conflict necessary? Is it not the purpose of the rules of evidence to further the search for the truth? (26) Our legal system has been built on the age-old maxim "that it is better that ninety-nine ... offenders should escape, than that one innocent man should be condemned." (27) Should a system premised on this principle tolerate such injustice? This note argues that it should not and advocates for the adoption of a balancing approach to the postmortem application of the attorney-client privilege in criminal cases. Where a client, now deceased, has admitted to committing a crime for which another has been wrongfully charged or convicted, and the evidence is unavailable through other means, the court should be permitted to balance the deceased client's interests in confidentiality against the wrongfully charged or convicted individual's interest in exoneration and society's interest in ascertaining the truth. Where the balance favors disclosure of the confession, the court should permit disclosure of this otherwise confidential information.

    Part II of this note will discuss the genesis, purpose, and application of the attorney-client privilege, including many of the exceptions to the privilege that currently exist. Part III will discuss the arguments put forward against adopting a balancing approach to the postmortem application of the attorney-client privilege. Part IV will discuss the arguments--based in case law, legal commentary, and ethics rules--in favor of this approach. Finally, Part V will propose a framework for applying the balancing approach--including four threshold requirements that must be met before the interests involved are balanced.

  2. THE PURPOSE AND APPLICATION OF THE ATTORNEY-CLIENT PRIVILEGE

    The attorney-client privilege is one of the oldest recognized rules governing confidentiality. (28) It is the only privilege recognized by every state in the country, though application of the privilege can vary state by state. (29) Its genesis "is found in the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to counsel, and the Due Process Clause of the Fourteenth Amendment." (30)

    The privilege protects communications between an attorney and a client that a client made in confidence "for the purpose of securing legal advice or assistance." (31) As a result, an attorney cannot disclose privileged information in court without the client's permission. (32) Upjohn Co. v. United States (33) is often cited to explain the purpose of the privilege:

    [The Privilege] encourage [s] full and frank communication between attorneys and their clients and thereby promote[s] broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client. (34) The privilege plays an integral role in our legal system, ensuring that an attorney is able to adequately represent his or her client's interests-something that would be impossible if the attorney was not fully informed of those interests by the client.

    However, there are circumstances where information that is protected by the attorney-client privilege can be disclosed without the consent of the client-that is, the privilege is not absolute. (35) For instance, the privilege can be waived following a client's death where litigation regarding the client's estate arises between the client's heirs. (36) The "crime-fraud" exception permits an attorney to disclose otherwise privileged information where the client sought the attorney's counsel in the effectuation of a future or ongoing crime or fraud. (37) Exceptions also exist where the communications sought were between two parties presenting a common defense, (38) and where an attorney seeks to defend against a charge of legal malpractice filed by the client. (39) Furthermore, exceptions have been recognized where a public official has allegedly engaged in criminal conduct and was advised by a government attorney, (40) or where an overriding public policy demands disclosure. (41)

    In addition to these exceptions, the American Bar Association's Model Rules of Professional Conduct permit an attorney to "reveal information relating to the representation of a client" (42) where it is necessary: (1) "to prevent reasonably certain death or substantial bodily harm;" (43) (2) to prevent the client from causing substantial financial or...

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