Vol. 8, No. 1, Pg. 14. Where Ethical Rules and Morality Conflict.

• Author: By Timothy M. McKissock

South Carolina Lawyer

1996.

Vol. 8, No. 1, Pg. 14.

Where Ethical Rules and Morality Conflict

14WHERE ETHICAL RULES AND MORALITY CONFLICTBy Timothy M. McKissockClient Confidentially Confesses to a Crime for Which an Innocent Person is Charged

A lawyer's general duty of confidentiality prohibits knowing disclosure of a client confidence that was acquired through the professional relationship. Yet, a lawyer's silence may allow a grave injustice to occur when a client confesses to a crime for which an innocent person is charged.

Consider the following scenario. A defendant is charged with two counts of first degree murder. Two lawyers are willing to testify at the trial that a client who has since died admitted to the lawyers that he had committed the dual murders with which the defendant is charged. At the time of the confession, the deceased was being tried for another murder that had occurred in the same area in which the defendant was charged.

Relying on an ethics advisory opinion, the two lawyers disclose the information, but the trial judge rules the information privileged and not admissible. The defendant is found guilty of two counts of first degree murder and sentenced to serve two concurrent terms of life imprisonment. Subsequently, the state Supreme Court agrees that the trial court properly excluded the testimony of the two lawyers.

This illustration is not a fictional creation of what could happen when the attorney-client privilege is applied with unyielding force. Rather, these are the facts of an actual case, Arizona v. Macumber, 544 P.2d 1084 (Ariz. 1976), in which the attorney-client privilege caused an arguably innocent person to be punished for murders he might not have committed.

A 1914 case, which has recently regained national exposure, involved Leo Frank, an Atlanta factory manager accused of murdering a young girl who worked at the factory. At the time, the town was outraged about the murder and when Frank was arrested, the public believed him to be guilty. The outrage soon turned to religious hatred because Frank was Jewish. Frank was convicted and sentenced to death; however, the governor reduced his sentence to life in prison. In response, certain townspeople attempted to destroy the governor's home and murder him. Additionally, Frank was kidnapped from prison and lynched.

However, in 1982 an elderly man came forth with information that proved Frank's innocence. The elderly man had worked at the factory as...