proRo: class 3 - alton logan and model rules amendments

alton logan

from the ABA:
Alton Logan has been in prison 26 years for
the shotgun murder of Lloyd Wickliffe, a
crime [committed by Andrew Wilson].
Wilson’s lawyers faced a classic ethical dilemma:
What may a lawyer do when a client admits
to a crime for which another has been charged?

Wilson’s lawyers concluded that client confidentiality
bound them to silence, but they obtained their client’s
consent to reveal the information after his death.
Wilson’s lawyers also drew up an affidavit that confirmed
that they “obtained information through privileged
sources that a man named Alton Logan who
was charged in the fatal shooting of Lloyd Wickliffe
. . . is in fact not responsible for that shooting.” They
placed the affidavit in a sealed envelope in a metal
box in 1982, believing that revelation at a later date
would be more credible if supported by the affidavit.
They released the affidavit after their client’s death [in 2008].

The ABA is considering a draft proposal to amend
Rule 1.6 of the Model Rules of Professional Conduct
to allow disclosure in such situations. In this column
we review the draft proposal, and discuss whether
there should be a new exception to Model Rule 1.6’s
duty of client confidentiality to prevent the wrongful
incarceration of another. The purpose of this column
is both to analyze the issue and to encourage discussion
and comments from readers.

Draft Proposal
Although newly amended Rule 3.8 clarifies the
obligations of prosecutors regarding wrongful conviction,
nothing has yet been done either to require
or allow disclosure of confidential information by
defense counsel to prevent wrongful incarceration.
In response to this dilemma, Criminal Justice Section
Ethics, Gideon & Professionalism Committee
cochairs Bruce Green and Ellen Yaroshevsky have
drafted the following proposal to amend Rule 1.6:

(c) A lawyer may reveal information relating
to the representation of a deceased client to the
extent the lawyer reasonably believes necessary
to prevent or rectify the wrongful conviction
of another.

The draft proposes amending Comment [15] to
Model Rule 1.6 as follows:
Paragraph (c) recognizes the important societal
interest in preventing and rectifying wrongful
convictions, including both convictions of
factually innocent individuals and convictions
resulting from procedural improprieties. The
interests underlying the confidentiality obligation
are usually paramount in the case of living
clients because clients will not be as forthcoming
if there is a risk that their confidences will
be disclosed during their lifetimes. However,
the societal interest in disclosure may be paramount
when the client is deceased, particularly
when the client’s reputation and estate will not
be prejudiced by disclosure. In exercising discretion
under Paragraph (c), a lawyer should
consider the prior wishes of the deceased client
to the extent they are known, the likelihood
that a wrongful conviction will occur and can
be prevented or that a wrongful conviction
occurred and can be rectified by disclosure,
the extent of the ongoing harm caused by the
wrongful conviction, and the extent to which
disclosure will prejudice interests important
to the deceased client, including the deceased
client’s reputation and the financial interests of
the deceased client’s estate.

In evaluating the recommendation, it is important
to note some of its features and limitations:
First, disclosure under the proposal would be discretionary.
Second, the proposed amendment restrains the
lawyer’s discretion by limiting disclosure to situations
when the client is deceased. Further, the
Comment indicates that in exercising discretion the
lawyer should consider the prior wishes of the deceased
client and the extent to which disclosure will
prejudice interests important to the deceased client,
including the deceased client’s reputation and the financial
interests of the deceased client’s estate.

The preconditions for disclosure appear to narrow the
proposed exception to confidentiality so much that
the exception could rarely be used, especially when
one considers that disclosure would be discouraged
even when there is only reputational harm to a deceased
client.

Finally, amending the ethical confidentiality rule
in a jurisdiction does not resolve evidentiary issues
that could bar the information being used in court
proceedings. As discussed in the following section,
attorney-client privilege has been used in several
jurisdictions to prevent lawyers from revealing information
that could prevent the wrongful incarceration
of another. A confidentiality exception would
allow revelation to the prosecution, the press, and
lawyers representing the person the information
exonerates. Privilege becomes an issue when the
lawyer seeks to testify in court about what the lawyer
knows that may exonerate the accused. In addition,
limitations on the use of alternate perpetrator
evidence and hearsay would usually exclude this
type of testimony.

Massachusetts has already amended its ethics
rules to provide that “[a] lawyer may reveal . . . such
information . . . to prevent the wrongful execution
or incarceration of another.” (Mass. R. Prof’l Conduct
1.6(b)(1).) Comment [9A] explains that this
exception to confidentiality permits “a lawyer to
reveal confidential information in the specific situation
where such information discloses that an innocent
person has been convicted of a crime and has
been sentenced to imprisonment or execution.” The
Comment’s explanation that the exception applies
specifically when “an innocent person has been convicted
of a crime and has been sentenced to imprisonment
or execution” may be viewed as an example
of when the exception applies or as a limitation on
using the exception. Rather than clarifying the exception,
the Comment appears to create an ambiguity
in determining when the exception applies. We
could find no reported instances of a lawyer making
disclosure under this rule.

Attorney-Client Privilege
There are several well-documented examples of
confidential information being offered to exonerate
someone accused of a crime. In State v. Macumber,
544 P.2d 1084 (Ariz. 1976), William Macumber was
charged with murder. At Macumber’s trial, two attorneys
attempted to testify that their deceased client
had confessed to the crime. The trial court refused
to admit the evidence reasoning that attorney-client
privilege survived the death of a client and that disclosure
could only be made with the consent of the
client or someone authorized by law to speak for the
client. On appeal, the Arizona Supreme Court reversed
on other grounds, but upheld the trial court’s
decision to exclude the confession, holding that in
the absence of consent from the individual holding
the privilege, the privilege could be asserted by the
trial court itself to prevent disclosure. (Id. at 1086.)
Macumber illustrates the distinction between the
legal ethics rule of client confidentiality and the evidentiary
rule of attorney-client privilege. Both the
trial court and the Arizona Supreme Court refused to
permit the testimony from the lawyers on attorneyclient
privilege grounds even though the lawyers
had obtained an informal bar ethics opinion stating
that they were ethically permitted to reveal the
confidential information. (Id. at 1097 (Holohan, J.,
concurring).)

Other courts have also relied on attorney-client
privilege to prevent lawyers from testifying about
client statements exonerating someone charged with
a crime. (See, e.g., State v. Doster, 284 S.E.2d 218,
220 (S.C. 1981) (applying attorney-client privilege
to prevent lawyer from testifying about deceased
client’s statements that may have exonerated defendant);
State v. Valdez, 618 P.2d 1234, 1236 (N.M.
1980) (holding attorney-client privilege prevented
lawyer from testifying that a former client confessed
to robbery).)
In Morales v. Portunondo, 154 F.Supp.2d 706
(S.D.N.Y. 2001), though, the court permitted a lawyer
to disclose that his deceased client had confessed
to a murder for which another man had been convicted.
The court found the information covered
by attorney-client privilege, but ruled that in a habeas
action due process required admission of the
evidence to guarantee fundamental fairness to the
defendant. (Id. at 730-31.) In reaching its decision,
the Morales court relied on Chambers v. Mississippi,
410 U.S. 284, 302-03 (1973), which used a due process
analysis in holding that “the hearsay rule may
not be applied mechanistically to defeat the ends of
justice” to exclude statements of another admitting
to a crime for which the defendant is on trial.
These cases demonstrate that any change in a
state’s ethics rules to create an exception to confidentiality
to prevent wrongful incarceration needs to
be supplemented by changes in the law of attorneyattorney
client privilege if the confidential information
obtained from a client is to be used in a court
proceeding. Still, an exception to client confidentiality
would permit a lawyer to reveal the information
to the accused’s defense counsel, the prosecutor, and
the press. Such revelations might, in turn, lead to
other admissible evidence or information that could
prevent a wrongful conviction, incarceration, or
execution.
 
Should There Be an Exception?
Let’s consider some of the pros and cons of such a
proposal.
Against the exception. Confidentiality, a key aspect
of the attorney-client relationship, is essential
to building trust between client and lawyer. Confidentiality
encourages lawyers to seek and clients to
provide full information about the representation.
Confidentiality, it is argued, serves both clients and
society since open communication enables the lawyer
to represent the client effectively and gives the
lawyer the opportunity to counsel the client against
wrongful behavior. Exceptions to confidentiality
arguably erode both lawyer and client incentives to
seek and provide information, and thus threaten to
undermine the quality of legal representation and
the good it provides to society.

A separate argument against the exception that is
the focus of this column is that such an exception
is unlikely in reality to provide much benefit to the
wrongfully accused or convicted.
 If a lawyer were to reveal a deceased client’s confession
to a crime for which another had been convicted, there
are a number of serious evidentiary barriers to the
admission of such testimony in a court proceeding,
including attorney-client privilege, the hearsay rule,
and the alternate perpetrator doctrine. 

• The confession was not made under oath and there was no opportunity either for cross-examination or to observe the client’s demeanor. 
• If the confession was made to a lawyer in the belief that it was protected by confidentialityand attorney-client privilege, it would also not be an admission against interest. 

In short, such a confession may carry little weight
even if it were not barred by evidence law.

For the exception. One argument for such an
exception is that ethical confidentiality rules have
always recognized exceptions. Is one more, rather
narrow, exception likely to have a significant marginal
impact on the flow of information from client
to lawyer or the resulting quality of representation?
Some currently recognized exceptions, such as those
pertaining to future crime or harm, seem much more
likely to be triggered and thus more likely to impede
the full and frank communication confidentiality is
designed to facilitate than a wrongful conviction
exception.

In response to the argument that this exception
is unlikely to produce much benefit for someone
wrongly charged or convicted due to various evidentiary
barriers to admitting the client’s confession in
court, one can argue that revelation of the confession
may produce benefits other than its use as evidence
in a court proceeding. The revelation might help a
wrongfully charged or convicted person attract public
support, lead to other admissible evidence, or
simply prompt the prosecution to reexamine a case.
Perhaps the most appealing argument for such an
exception is that it helps address the need to remedy
the wrongful convictions that have attained
such prominence in today’s legal and popular culture.
These DNA exonerations illustrate the need for
more safeguards to ensure that the innocent are not
convicted and incarcerated. One such response is
the recent amendment to Model Rule 3.8 addressing
a prosecutor’s post-conviction obligations of
disclosure and investigation. An additional response
aimed at defense counsel is a wrongful incarceration
exception. Failure to recognize such an exception
is likely to attract public attention and undermine
public confidence both in lawyers and our criminal
justice system.

Finally, recognition of such an exception is consistent
with a recent trend to ease confidentiality
restrictions when doing so allows lawyers to serve
an important public purpose. The current version of
Mode Rule 1.6, for example, recognizes more exceptions
than did the original version of Model Rule
1.6. Many states have enacted exceptions more generous
than those currently found in the Model Rules.
Another example is Model Rule 1.13(c)’s “reporting
out” exception to confidentiality in organizational
representation the ABA adopted in response to the
Enron scandal and other corporate wrongdoing. This
trend expands a lawyer’s duty to act cooperatively in
preventing and remedying wrongdoing, emphasizing
the lawyer’s role as an officer of the court rather
than the lawyer’s role as a zealous advocate of the
client.
 
Conclusion
The issue of wrongful conviction is a serious one. Studies
of wrongful conviction reveal that both prosecutors
and defense counsel often contribute to wrongful
convictions. It would seem appropriate then, to look to
both prosecutors and defense counsel to help remedy
the problem. The current draft, very narrowly drawn
and discretionary rather than mandatory, seems unobjectionable.
Our view is that a more expansive exception
may possibly be justified, without the death and
reputational harm limits found in the current proposal.
If an exception to client confidentiality to prevent
or remedy wrongful convictions is to be enacted, a
robust exchange of views and discussion of the arguments
for or against it is warranted.

To that end,
we urge you to share your views with the cochairs
of the Ethics, Gideon & Professionalism Committee
of the Criminal Justice Section. Professors Bruce
Green (bgreen@law.fordham.edu) and Ellen Yaroshevsky
(yaroshef@yu.edu).