Did any of you happen to catch the "60 Minutes" story last night about the two criminal defense attorneys whose client (already under indictment for killing two peace officers) told them he had killed a restaurant security guard. The two attorneys kept the knowledge secret for 26 years even as another man was tried, convicted, and sentenced to life in prison for the crime. The lawyers executed an affidavit when they first learned from their client that he had committed the offense, and kept the sealed affidavit in a lockbox under one of the attorney's bed. They got their client to agree to let them disclose the information when the client died. He finally died last year and the attorneys turned over the affidavit to the imprisoned man's attorney. That man is now awaiting a ruling on a new trial. The segement presented a very interesting discussion of the ethical challenge facing attorneys who find themselve in this type of situation. The reporter appeared flumoxed at the idea that an attorney couldn't reveal the information when doing so would keep an innocent person from going to prison, although other attorneys interviewed agreed that the two attorneys had no other option.

Janette A

I saw that. Even the wrongly convicted man's own attorney agreed they did the right thing.
One of the attorneys really seemed conflicted by what he had to do. He said that what might be right morally does not mean it is the right thing to do under the ethical rules. I thought about that a lot.... What is ethically right may not always be what is morally right. I am so thankful to be a prosecutor as I think we have many fewer situations like that than our collegues on the defense side face.

So, a defense attorney CAN CHOOSE to disclose confidential information in order to protect himself from claims of misconduct but CAN CHOOSE NOT to disclose if there is only a need to protect an innocent person from going to JAIL??? Where is the ethics in that?

Disbarment is at least not a jail cell....and somehow that is a lesser burden for disclosure.

The TDCAA ethics book says the mandatory disclosures for preventing a crime or fraud are justified because it is in society's best interest to prevent death or serious bodily injury harm to a person even at the expense of invading the attorney-client privilege.

How can the same theory not apply here? It's definitely in society's best interest that innocent people not sit in jail. And why is a confession to an unrelated crime that important to the attorney-client relationship? If the confession were in the form of physical evidence, the attorney would be required to hand it over.

I just don't see how confessions to unrelated crimes help your attorney defend you in the case at hand.

No, he cannot choose when it's appropriate to violate the client privilege; the client, by claiming attorney malpractice, automatically waives the privilege. There is a specific rule allowing attorneys to disclose otherwise confidential client information and communication when it's the client who's complaining about the attorney.

I do think that under the right set of facts there could be a plausible argument that the attorney was hindering the apprehension of a fugitive, although I think it's very difficult in this case to say that this specific person was the fugitive if they weren't even aware of who he was.

"I am so thankful to be a prosecutor as I think we have many fewer situations like that than our collegues on the defense side face."

Interesting, I actually think prosecutors are in a much tougher situation ethically. That is mainly because they have the power of the state behind them (potential to do harm) and also because most have to work within organizations/offices, which brings with it all sorts of conflicts and quandries. Most defense attorneys (in Texas anyway) are solo practioners who represent a single client on any case - makes a lot of ethics issues simpler to frame at least, if not simpler to answer.

Well, without the attorney-client privilege in effect, the possibly-innocent person would still be sitting in jail, because the confessor would never have said anything to his attorneys knowing it would be used against him, and he would have taken the secret to the grave.

I've been following this case a bit on one of the law blogs I read, and I think it's interesting but the attorneys did what they had to do. There isn't a "unless you really, really think it shouldn't apply" exception to the privilege, after all. The exceptions are clearly laid out, and this isn't one of them. Whether you think the states should add such an exception (Massachusetts apparently already has one) is a different question from whether these attorneys followed the law as it existed.

I think the difference between this sort of case and an attorney defending himself from accusations of misconduct are that the client in the second instance effectively waives the privilege. If he doesn't want the attorney to be able to talk, he doesn't make the accusation.

Incidentally, from what I can tell this is far from an open and shut case of "innocent man rotting in prison". His attorneys played the "other guy did it" defense in trial, specifically blaming Wilson (the confessor here) and getting the eyewitnesses to compare pictures of the two men on the stand, etc. Other than the confession and a weapon they had already connected with Wilson, there really wasn't anything tying him to the crime and all the witnesses said it wasn't him. It's completely possible the jury might've reached the same decision even knowing about Wilson's statement. That doesn't mean the statement should or shouldn't have been introduced, just that it's not as black and white as 60 Minutes was portraying it. (What a shock!)

So the tv version had a spin??

This is very interesting to me. There was also a Law and Order that was very close--wonder if it stemmed from this case.

I see your points about the waiver--the law is what it is. My point is more along the lines of--the rules shouldn't cause a debate between ethics vs. morals.

The attorney client privilege is pierced in situations where the best interest of society requires it--whether by waiver or by statutes requiring disclosure. If the facts were changed a little, and instead of a confession, there was some physical evidence handed to the attorneys, the attorneys would without a doubt have to turn it over. That's not based on waiver, it's based upon mandatory disclosures required under the law. (not that required disclosures affected these lawyers situation, either).

Just seems sad that meeting his obligation as a lawyer required something that would just be hard to live with.