SSRN-id1447516 (2)

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When the Law Preserves Injustice:

Issues Raised by a Wrongful Incarceration Exception to Attorney !lient !onfidentiality

Inbal "asbaniCandidate for Juris Doctor, Class of 2010

Northwestern University School of Law

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2/45Electronic copy available at: http://ssrn.com/abstract=1447516

Inbal Hasbani Draft: Do not cite without permission of theauthor

#able of !ontents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

art I! "ac#$round . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . %

art &! 'he Lawyer(s Duty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . %

art "! &ttorney Client Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . )

art II! &nalysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

art &! 'he I*+act of a New -ce+tion on &ttorney Client Discussions . . . . . . . . . . . .10

art "! /odel ule 1. 34 14(s 5 easona3ly Certain Death or Su3stantial "odily 6ar*7-ce+tion and 8ron$ful Incarceration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

art C! /ini*u* Sentence e:uire*ents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2;

art D! rocedural Issues! 'he i$ht 'i*e to Disclose. . . . . . . . . . . . . . . . . . . . . . . . . . 2

art ! ffective Counsel, Self Incri*ination and Use I**unity . . . . . . . . . . . . . . . . . . ;0

art

art I=! Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .%0

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Introduction

'he United States is 3uilt u+on a foundation of li3erty ,1 a value that i*3ues a sense of

freedo* and autono*y that defines *ost &*ericans. erha+s in +art 3ecause of this

funda*ental value, the idea of a wron$ful incarceration is +articularly re+u$nant. In the +ast

cou+le of years, however, two wron$ful incarceration cases have $arnered es+ecially hei$htened

*edia attention. "oth cases involved lawyers who #new all a3out the wron$ful incarcerations of

innocent *en 3ut were 3arred fro* disclosin$ e-oneratin$ infor*ation 3ecause of confidentiality

restraints with their own clients. In other words, these lawyers were 3ound 3y the >udicial

syste* ? a syste* &*ericans li#e to 3elieve secures our >ustice, freedo* and autono*y ? fro*

freein$ innocent *en fro* >ail.

In one case, two attorneys, Dale Coventry and Ja*ie @unA, #new that their client,

&ndrew 8ilson, had co**itted the *urder for which &lton Lo$an was servin$ a life sentence .2

&ndrew 8ilson, who had confessed to the cri*e while &lton Lo$an was 3ein$ tried, was servin$

a lifeti*e sentence hi*self for two other *urder convictions .; Unsur+risin$ly, 8ilson did not

authoriAe his attorneys to disclose his confession, and so the attorneys were re:uired under

Illinois ethical rules to re*ain silent. %

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infor*ation in the event of his death . 'wenty si- years later, after Lo$an had s+ent nearly half

his life in >ail, &ndrew 8ilson died, and the attorneys ca*e forward with the e-oneratin$

infor*ation. ) Soon after, Lo$an was released fro* +rison .

Si*ilarly, Sta+le 6u$hes, a North Carolina lawyer, revealed his client(s confession in

200%, ho+in$ to free Lee 8ayne 6unt fro* his twenty two year sentence. E 6u$hes clai*ed that

twenty two years earlier, his client, now dead, confessed that he acted alone in co**ittin$ a

dou3le *urder for which another *an, Lee 8ayne 6unt, was servin$ a life sentence. 10 6u$hes

clai*ed that after his own i*+risoned client died, it see*ed to hi* that it was 5ethically

+er*issi3le and *orally i*+erative7 that he co*e forward with the e-oneratin$ infor*ation .11

'he law, however, 3inds attorneys to re*ain silent even after their clients( deaths ,12 and /r.

6u$hes did not receive his client(s consent to reveal the confidential infor*ation .1; Jud$e

'ho*+son of the Cu*3erland County Su+erior Court in

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violatin$ attorney client +rivile$e, the co*+laint was dis*issed in January 200 in a confidential

decision. 19 Lee 8ayne 6unt, however, re*ains in >ail des+ite the a++arently e-oneratin$

infor*ation. 1

'he lawyers( silence in the &lton Lo$an and Lee 8ayne 6unt cases +roduces a sense of

outra$e with the ethical constructs that are *eant to $uide lawyers in our >udicial syste*. 'he

natural reaction when learnin$ a3out their decades lon$ +rison ter*s is to :uestion whether the

ethical $uidelines are ethical at all. 8hat #ind of syste* ensures that a *an serve day after day

in +rison when lawyers #now he is innocentH 8hen the *oral +re*ise of our >udicial syste* is

to esta3lish >ustice, then how can the sa*e >udicial syste* re:uire a lawyer to re*ain silent as

in>ustice is 3ein$ served on an innocent +ersonH

'he answer, unfortunately, is *ore co*+licated than it see*s. &lthou$h the end $oal of

our >udicial syste* is certainly to +roduce >ustice, lawyers( o3li$ations are to their clients first, in

the ho+es that the adversarial syste* will weed out the truth fro* fiction and esta3lish >ustice.

'hus, lawyers ar$ua3ly re+resent a *eans to an end, and that *eans re:uires Aealous advocacy

on 3ehalf of their clients, even in the e-tre*e case of a wron$ful conviction. 'hat is the way our

>udicial syste* was 3uilt and continues to o+erate today.

6owever, every rule has e-ce+tions, and attorney client confidentiality is no different. In

certain situations, the law has declared confidentiality *ay 3e 3ro#en in order to +reserve so*e

overridin$ value, li#e the +revention of su3stantial 3odily har* or reasona3ly certain death .1)

Si*ilarly, an e-ce+tion for wron$ful incarcerations could 3e +ro*ul$ated as a declaration of our

15 Id'

16 Id' 17 / BD L UL S B< B< (L CBNDUC' . 1. 34 14 200 4.

"

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society(s overarchin$ interest in +reventin$ innocent *en and wo*en fro* servin$ +unish*ent

over +reservin$ confidentiality. 6owever, in introducin$ such an e-ce+tion, several issues are

raised that are not necessarily i**ediately intuitive. 'he followin$ &rticle is an atte*+t to

fra*e so*e of these concerns to shed li$ht on the issues +resented 3y a wron$ful incarceration

e-ce+tion. 'he &rticle 3e$ins in art Bne 3y +rovidin$ 3ac#$round on the >udicial syste*(s

re:uire*ents of a lawyer, includin$ attorneys( ulti*ate duty to their clients and their o3li$ations

under attorney client confidentiality. art 'wo +roceeds with an analysis of the wron$ful

incarceration e-ce+tion with si- su3+arts. art & discusses the +ossi3le chillin$ effect of a new

e-ce+tion on attorney client discussions. art " considers the +ro+osition that the su3stantial

3odily har* and reasona3ly certain death e-ce+tion already ca+tures an e-ce+tion for wron$ful

incarcerations. art C, D, and < raise so*e +ractical issues with a wron$ful incarceration

e-ce+tion, includin$, res+ectively, the len$th of conviction that would 3e re:uired for an attorney

to disclose infor*ation, the +ro+er ti*in$ +rocedurally for an attorney to co*e forward, the

+ossi3ility that a wron$ful incarceration e-ce+tion could violate a client(s constitutional ri$hts

a$ainst self incri*ination and for effective counsel, and finally, the difference in attorney

3ehavior that could 3e e-+ected to result fro* a wron$ful incarceration e-ce+tion. 'he &rticle

concludes 3y su$$estin$ a +ro+osal for a new e-ce+tion that would 3est solve the issues raised

3y a wron$ful incarceration e-ce+tion to attorney client confidentiality.

Part I$A$ #he Lawyer%s &uty

& trial, the Su+re*e Court has asserted, is a 5search for truth.71

Such an assertion

resonates easily with intuitive conce+tions of what our >udiciary is *eant to esta3lish. Since

>ustice is the +revailin$ $oal of a >udicial syste*, then truth, one would thin#, *ust 3e its

18 Ni- v. 8hitesides, %)9 U.S. 19), 1)1 1E 4.

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unerrin$ co*+anion. "ut, herein lays the +arado-. &lthou$h truth *ay 3e the end $oal of every

trial, the lawyers +layin$ their +arts serve a different end ?advocacy on 3ehalf of their clients ?

which *ay very well 3e at odds with the search for truth. &lthou$h such a conce+tion of a

lawyer(s duty *ay at first $lance see* to conflict with the overlyin$ $oal of the >udiciary syste*

? and in fact, in so*e situations it does it is 3elieved to 3e necessary for the functionin$ of an

adversarial syste* in its search for >ustice.

'he le$al +rofession is $uided 3y rules that reco$niAe a lawyer(s duty as a 5Aealous

advocate for the client, +uttin$ that +erson(s interest ahead of all others.7 1E &s far 3ac# as 1 20,

Lord "rou$ha* fa*ously descri3ed the role of the lawyer!

& n advocate, in the dischar$e of his duty, #nows 3ut one +erson in all the world, andthat +erson is the client. 'o save that client 3y all *eans and e-+edients, and at allhaAards and costs to other +ersons, and, a*on$ the*, to hi*self, is his first and onlydutyK and in +erfor*in$ this duty he *ust not re$ard the alar*, the tor*ents, thedestruction which he *ay 3rin$ u+on others. Se+aratin$ the duty of a +atriot fro* that ofan advocate, he *ust $o on rec#less of conse:uences, thou$h it should 3e his unha++yfate to involve his country in confusion. 20

&side fro* a few e-ce+tions, the le$al +rofession is 3uilt on a standard of strict attorney loyalty

to the client. In fact, des+ite the conundru* that lawyers face as 3ein$ 3oth advocates on 3ehalf

of their clients clients who *ay have little to $ain fro* the ascertain*ent of truth and officers

of the court 5+resu*a3ly wor#in$ to advance the truth,7 the ethical $uidelines often +ose the

lawyer(s duty to the client as the ulti*ate o3li$ation. 21

1

eter J. 6ennin$, $awyers+ Tr&th+ and Honesty in /epresenting "lients , 20 N B' D&/ J.L. '6ICS U" . BL (G 20E, 210 citin$ C &NBNS B< B< (L '6ICS Canon 19 1E0 4 5'he Lawyer owes Mentire devotion to the interest of theclient, war* Aeal in the *aintenance and defense of his ri$hts and the e-ertion of his ut*ost learnin$ anda3ility.(744.

2! / BN B 6. < D/&N & "" S /I'6 , U ND S'&NDIN L&8G S ( '6ICS )1 )2 ;rd ed. 200%4 citin$ L B D 6 N G " BU 6&/ , ' I&L B< U N C& BLIN 1 2144.

21 6ennin$, s&pra note 1E, at 211.

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'he /odel ules of rofessional Conduct the 5/odel ules74, which is the ethical code

u+on which *ost states fra*e their ethics $uidelines for lawyerly conduct, do not once 5directly

reference truth in the +rovisions that esta3lish the +rece+ts for the +ro+er +ractice of law.7 22

Devotion to the client, not truth, is the lawyer(s ulti*ate duty. &lthou$h 5certain rules discuss

the re:uire*ent that lawyers not introduce false evidence, *islead a third +erson, or act

dece+tively or fraudulently...nowhere do they instruct a lawyerOeven on re+resentin$ a client in

an ad>udicatory +roceedin$Oto ensure that the result of the le$al re+resentation reflects what

actually ha++ened in the transaction that is the su3stance of the dis+ute.7 2; In fact, the /odel

ules $o so far as to re:uire the lawyer to cross e-a*ine a truthful witness, in an effort to

under*ine her testi*ony, even if the lawyer #nows the witness is truthful .2% Si*ilarly, a

cri*inal defense attorney(s *ission is to defend a $uilty client, even when that defense results in

the client(s ac:uittal. 29 Such advocacy can hardly 3e fra*ed as a 5search for truth7 and *ay, at

ti*es, conflict with the ascertain*ent of >ustice. "ut, our >udicial syste* is 3uilt on the notion

that a lawyer is a client(s re+resentative, and to$ether, the lawyer and client create the *ost

+owerful and ri$orous defense +ossi3le on 3ehalf of the client. 2

22 Id' at 21;.

23 6ennin$, s&pra note 1E, at 21; citin$ / BD L UL S B< B< (L CBNDUC' . ;.;, %.1, .% c44 200 4.

24 See id' at 21).

25 6ennin$, s&pra note 1E, at 21;.

26 See / BD L UL S B< B< (L CBNDUC' . 1.1 1.; 200 4 for *ore infor*ation a3out the lawyers( role under the/odel ules.

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Part I$'$ Attorney !lient !onfidentiality

&ttorney client confidentiality has a lon$ history in our le$al syste*, and was reco$niAed

at least 3y the *iddle of the nineteenth century as an ethical *andate .2) & lawyer(s o3li$ation to

his client, 3oth as a Aealous advocate and as a $ate#ee+er of his client(s secrets, has 3een and

continues to 3e one of the *ost sacred and +rotected relationshi+s in the law.

Client confidentiality has 3oth evidentiary and ethical co*+onents. 'he attorney client

+rivile$e, which is the evidentiary doctrine, is the oldest co**on law +rivile$e of the various

confidential co**unications .2 'he +rivile$e is +re*ised on the theory that the 5+u3lic 3enefit

in encoura$in$ clients to fully co**unicate with their attorneys in order to ena3le the attorney to

act *ost effectively, >ustly and e-+editiously in +rovidin$ sound le$al advice, outwei$hs the

har* caused 3y sic the loss of relevant infor*ation.7 2E Su+re*e Court Standard 90;, which is

co**only used as a $uide on attorney client +rivile$e in federal courts, ;0 states that 5a client has

a +rivile$e to refuse to disclose and to +revent any other +erson fro* disclosin$ confidential

co**unications *ade for the +ur+ose of +rofessional le$al services to the client....7 ;1

'he ethical co*+onent of attorney client confidentiality, for the *ost +art, e-+ands on

this conce+t. 'he /odel ules re:uire a lawyer not to reveal 5infor*ation relatin$ to the

re+resentation of a client,7 ;2 which 3roadens the confidentiality restraints to co**unications27 ohn Co. v. United States, %%E U.S. ; ;, ; E 1E 14 5Its +ur+ose is to encoura$e full and fran#co**unication 3etween attorneys and their clients and there3y +ro*ote 3roader +u3lic interests in the o3servanceof law and ad*inistration of >ustice. 'he +rivile$e reco$niAes that sound le$al advice or advocacy serves +u3licends and that such advice or advocacy de+ends u+on the lawyer(s 3ein$ fully infor*ed 3y the client.74.

3! Id'

31 U.S. S U / CBU ' S '&ND& D . 90;.

32 / BD L UL S B< B< (L CBNDUC' . 1. 200 4.

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with +eo+le other than the client and to any co**unications *ade relating to the attorney(s

re+resentation. 'hus, the ethical $uidelines re:uire the attorney to #ee+ a wider arena of

infor*ation confidential ? any infor*ation 5relatin$7 to the attorney(s re+resentation ? while the

attorney client +rivile$e +revents the attorney fro* disclosin$ any infor*ation 5*ade for the

+ur+ose of +rofessional le$al services to the client.7 ;;

Bne of the *ain $uidin$ +rinci+les 3ehind the confidentiality doctrine is the notion that

each *e*3er of our society is entitled to the free e-ercise of his or her autono*y .;% 'o that end,

each +erson is 5entitled to #now his ri$hts with res+ect to society and other individuals, and to

decide whether to see# fulfill*ent of those ri$hts throu$h the due +rocesses of law.7;9

Since

lawyers have a 5le$al and +ractical *ono+oly over access to the le$al syste* and #nowled$e

a3out the law,7 their 5advice and assistance are often indis+ensa3le7 to the effective e-ercise of

individual autono*y. ; Co*+etent re+resentation re:uires that a lawyer 3e 5fully infor*ed of all

the facts of the *atter he is handlin$.7 ;) Since clients are not li#ely to $ive lawyers full, candid,

and +ossi3ly incri*inatin$ or e*3arrassin$ facts to their lawyers unless they are confident that

the lawyer will #ee+ the infor*ation confidential, attorney client confidentiality is essential for

33

/ BD L UL S B< B< (L CBNDUC' . 1. 200 4K U.S. SU / CBU ' S '&ND& D . 90;.34 ohn v. United States, %%E U.S. ; ;, ;E1 1E 14.

#

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the 5effective assistance of counsel.7 ; In fact, the Su+re*e Court has asserted that the attorney

client +rivile$e survives even after the death of a client .;E

Des+ite the 3enefits of confidentiality, it can certainly +roduce so*e friction with the

search for truth. &s one court +ut it, 5 3 ecause Mthe attorney client +rivile$e *ay serve as a

*echanis* to frustrate the investi$ative or fact findin$ +rocess, it creates an inherent tension

with society(s need for full and co*+lete disclosure of all relevant evidence durin$

i*+le*entation of the >udicial +rocess.(7 %0 "ut, courts have ac#nowled$ed that this 5is the +rice

that society *ust +ay for the availa3ility of >ustice to every citiAen, which is the value that the

+rivile$e is desi$ned to secure.7%1

'he 5social $ood derived fro* the +ro+er +erfor*ance of the

functions of lawyers actin$ for their clients...outwei$hs the har* that *ay co*e fro* the

su++ression of the evidence.7 %2

&lthou$h the scale wei$hin$ social $oods $enerally ti+s in the direction of

confidentiality, the ethical $uidelines have reco$niAed a series of e-ce+tions to the attorney

client confidentiality doctrine. /odel ule 1. outlines si- such e-ce+tions, includin$

e-ce+tions to 5+revent reasona3ly certain death or su3stantial 3odily har*7 %; and to 5+revent,

*iti$ate or rectify su3stantial in>ury to the financial interests or +ro+erty of another....7 %% 'he

38 Id' 20, at 12E citin$ United States v. Costen, ;

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/odel ules, however, do not currently have an e-ce+tion for a situation li#e &lton Lo$an(s and

Lee 8ayne 6unt(s where a lawyer #nows and would li#e to disclose that his or her client

co**itted a cri*e for which an innocent +erson is servin$ a sentence. 'hus, as it currently

stands under the /odel ules, a lawyer *ay not co*e forward with confidential infor*ation that

reveals a wron$ful conviction.

Part II$A$ #he I(pact of a )ew Exception on Attorney !lient &iscussions

In li$ht of the lon$ history and tradition su++ortin$ attorney client confidentiality, one of

the $ravest issues +resented with introducin$ a new e-ce+tion to attorney client confidentiality is

that it would +revent the fran# and candid discussions, and ulti*ately the client(s constitutional

ri$ht to effective re+resentation, that are the very +ur+ose of the confidentiality doctrine.

Confidentiality +ro+onents 5contend that confidentiality e-ce+tions will interfere with the

develo+*ent of client trust and will discoura$e clients fro* usin$ or freely co**unicatin$ with

their counsel.7 %9 /oreover, creatin$ a new e-ce+tion which would allow attorneys to reveal

client confidences 5+uts the +rofession on a sli++ery slo+e of havin$ to 3e the >ud$e of which

confidences are to 3e revealed and which are not.7 % &s lawyers increasin$ly assu*e the role of

decidin$ when to *a#e disclosures 5without >udicial scrutiny and without clear $uidelines,

lawyers *ay 3eco*e *ore and *ore co*forta3le with this role chan$e and with disclosure.7 %)

Such a funda*ental shift in the direction of the +rofession could lead to ineffective

45 Leslie Levin, Testing the /adical E0periment% # St&dy of $awyer /esponse to "lients (ho Intend to Harm1thers+ %) U' S L. = . 1, E) 1EE%4.

46 @athryn 8. 'ate, The Hypothetical as a Tool for Teaching the $awyers )&ty of "onfidentiality+ 2E LBG . L.&. L. = . 1 9E, 1 ;.

47 Id'

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re+resentation, which would ar$ua3ly violate a client(s ri$hts under the Si-th and

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conclusion that one cannot o3tain hel+ otherwise7 ? forces that o+erate re$ardless of a

confidentiality rule. 9;

&ccordin$ to rofessor Snyder, 5confidentiality rules can 3e an induce*ent to clients to

3e forthco*in$ with their lawyers only if they are aware of and understand the rules.7 9% Since

*ost clients do not #now or co*+rehend the rules, or the co*+le-ity of the e-ce+tions, any

e-ce+tions to the confidentiality rule are unli#ely to affect le$al assistance. 99 'hus, a3solute

secrecy to clients is not necessary in order to +ro*ote o+en discussion 3etween clients and

attorneys. 9

In res+onse to such criticis*, *any studies have tested the effect of confidentiality on

fran# and candid discussion of res+ondents.

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Jersey lawyers conducted 3y rofessor Leslie Levin found that althou$h E9 +ercent of the

lawyers surveyed said that they +ersonally infor*ed at least so*e of their clients of the

confidentiality of their co**unications over the +ast twelve *onths, over 9 +ercent infor*ed

none of their clients a3out an attorney(s o3li$ation under New Jersey ethical rules to disclose

client confidences to +revent a client fro* co**ittin$ a wron$ful act . 0 'he reason *ost

lawyers did not discuss the su3>ect of *andatory disclosure, was 5a++arently 3ecause they felt

that discussions a3out confidentiality e-ce+tions would interfere with client trust.7 1 'he

violation of such trust led lawyers to 3elieve they would o3tain less than full disclosure fro*

their clients if they +ro*ised anythin$ less than co*+lete confidentiality .2

rofessor Leslie Levin(s study, however, confir*ed so*e of rofessor Snyder(s

reservations that clients are unaware of the co*+le-ity of the confidentiality rules. Levin(s study

found that *ost New Jersey lawyers did not 3elieve that their clients understood that attorneys

*ay 3e re:uired to disclose client confidences in certain circu*stances. ; & study conducted in

'ho*+#ins County, New Gor# revealed that %2 +ercent of all clients surveyed 3elieved that

confidentiality re:uire*ents are a3solute . % Des+ite clients( inco*+lete understandin$ of the

ethical rules, rofessor Levin(s study su$$ested that lawyers 3elieve confidentiality wor#s to

+ro*ote the free flow of client infor*ation . 9 In other words, even thou$h clients *ay not

6! Levin, s&pra note %9, at 120 22.

61

Id' at 122.62 Id' at 122 2;.

63 Id' at 122.

64 Id' at 10% citin$

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co*+rehend the nuances of the confidentiality rules, they still rely on their attorneys( assurances

that their co**unications are confidential to reveal e*3arrassin$ or incri*inatin$ infor*ation.

rofessor Levin(s study also found that discussin$ disclosure re:uire*ents with a client

at the first su3stantive *eetin$ or when the lawyer thin#s the client *i$ht 3e a3out to discuss

future wron$doin$ *ay reduce 5the li#elihood that clients will say any *ore a3out the su3>ect.7

&lthou$h warnin$ clients a3out disclosure re:uire*ents 5un:uestiona3ly +ro*otes client

autono*y7 since clients are entitled to #now what is not +rotected 3efore they s+ea#4, it leads to

inhi3ited discussion, and a reluctance to s+ea# any further . ) 'his is +articularly disconcertin$

when considerin$ the

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deter*ine >ust how such an e-ce+tion would actually affect discussions. If the wron$ful

incarceration e-ce+tion would affect *any cases, or a few +ro*inent cases, then word of *outh

could travel wide, and attorney client trust could erode over ti*e. Bn the other hand, if such an

e-ce+tion would affect a s*all nu*3er of cases, and clients re*ained unaware of the e-ce+tion,

then +erha+s it would not *a#e *uch difference at all. )1 'hat said however, relyin$ on the

i$norance of clients and attorneys( lac# of disclosure of confidentiality e-ce+tions to ar$ue that a

new e-ce+tion would not i*+act candid discussions 3etween attorneys and clients see*s

+erverse. Unfortunately, $iven the uncertainty and controversy over confidentiality(s +recise

i*+act on client discussions, the ulti*ate i*+act of a wron$ful incarceration e-ce+tion on client

discussions *ay si*+ly 3e un:uantifia3le. Still, it is certainly one of the *ost i*+ortant factors

to consider in the decision to create a new rule.

Part II$'$ *odel Rule +$,-b.-+.%s /Reasonably !ertain &eath or 0ubstantial 'odily "ar(1Exception and Wrongful Incarceration

erha+s one of the *ost +owerful ar$u*ents in favor of an attorney(s ri$ht to reveal

confidential infor*ation a3out a wron$ful incarceration is that /odel ule 1. 34 14(s e-ce+tion

to +revent 5reasona3ly certain death or su3stantial 3odily har*7 already enca+sulates such a

ri$ht. In a recent essay, rofessor Colin /iller ar$ued that the twenty si- states that have

ado+ted so*e for* of /odel ule 1. 34 14 5can and should read an i*+lied wron$ful

incarcerationFe-ecution e-ce+tion into their e-istin$ rules.7 )2 'he twenty three states without

such a rule should ado+t so*e for* of /odel ule 1. 34 14, and read a wron$ful

71 See Levin, s&pra note %9, at 121.

72 Colin /iller, 1rdeal 7y Innocence% (hy There Sho&ld 5e # (rongf&l Incarceration8E0ec&tion E0ception to #ttorney "lient "onfidentiality , 102 N 8 . U. L. = . CBLLB UG ;E1, ;E; 200 4.

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incarcerationFe-ecution e-ce+tion into the rule .); Bne state, /assachusetts, already has a

+rovision under the /assachusetts ule of rofessional Conduct 1. 34 14 that e-+licitly +er*its

attorneys to disclose client infor*ation to 5+revent the wron$ful e-ecution or incarceration of

another.7 )%

rofessor /iller ar$ues that incarceration can 3e analo$iAed to su3stantial 3odily har*

for three reasons.

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2002 study 3y the National Co**ission on Correctional 6ealth Care, the rates of 6I= and

6e+atitis C infections in +risons are *ore than five ti*es and 3etween nine and ten ti*es the

corres+ondin$ rates in the $eneral +o+ulation, res+ectively.7 )E 'hirdly, 5in*ates are su3>ected to

an increased ris# of sa*e se- ra+e, with one study revealin$ that E of an in*ate sa*+le was

aware of at least one se-ual assault occurrin$ in the +revious year.7 0 /iller also adds that the

states whose rules 5+er*it or re:uire attorneys to disclose client infor*ation to +revent

su3stantial in>ury to the financial interest or +ro+erty of another can include the si$nificant

financial effects of i*+rison*ent as +art of the har* to 3e +revented 3y a wron$ful

incarcerationFe-ecution e-ce+tion.71

/iller ar$ues that 3ecause the ris# of sufferin$ fro* su3stantial 3odily har* in +rison is

co**ensurate with the ris#s faced 3y intended victi*s in situations where we already +er*it

ule 1. 34 14 disclosures, lawyers should 3e >ust as a3le to co*e forward under the current

e-ce+tion to +revent an intended victi* fro* sufferin$ as they would for an innocent +erson(s

wron$ful incarceration. 2 /iller(s ar$u*ent is co*+ellin$ +articularly when considerin$ the real

dan$ers +resented 3y incarceration. 6owever, he overloo#s so*e holes in his ar$u*ent that are

worth considerin$.

'o 3e$in, /iller assu*es correctly, 3ased on statistics4 that incarceration involves hi$h

ris#s of +hysical violence, hei$htened e-+osure and e-+eriences of co**unica3le diseases, and

7 Id' at ;E) E citin$ N&'(L CB//(N BN CB . 6 &L'6 C& , '6 6 &L'6 S'&'US B< SBBN 'B" L &S D IN/&' S! & B ' 'B CBN SS, =BLL. 1, at 1 20024, availa7le at

htt+!FFwww.ncchc.or$Fst3rF=olu*e1FCha+ter;.+df 4.8! Id' at ;E) citin$ otts, s&pra note )), at %)1 n.1 94.

81 Id' at ;E EE citin$

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increased ris# of sa*e se- ra+e. 6owever, assu*e for a *o*ent that +rison did not involve a

$reater ris# of these ail*ents than does re$ular life. Still, in*ates would 3e confined to +rison

cells, day after day livin$ the sa*e routine, drud$in$ throu$h the *onotony of livin$ an

i*+risoned life. &s in*ates, they would not have re$ular access to their fa*ilies, and as often

ha++ens, hundreds of *iles would se+arate the* fro* loved ones. /oreover, they would lead a

5de+ersonaliAed e-istence with little +rivacy! +assers3y could $aAe into their cells to watch

the* eat, slee+, or use the toilet.7 ; Still, these in*ates would 3e su3>ected to no *ore or less a

ris# of su3stantial 3odily har* than the avera$e &*erican citiAen, 3ut the constricted lifestyle,

the *onotony, the lac# of o++ortunity to esta3lish careers, relationshi+s, and ho33ies would

certainly detract fro* their :uality of life.

Under such conditions, an attorney would not 3e a3le to co*e forward with infor*ation

that would e-onerate an innocent in*ate under /odel ule 1. 34 14. Since the in*ate was not

and, ostensi3ly, would never 3e4 e-+osed to su3stantial 3odily har*, there would 3e no current

rule that could save hi* or her. 'hus, an in*ate li#e &lton Lo$an could s+end twenty si- years

in +rison ? ro33in$ hi* of any *eanin$ful life ? while an attorney would 3e o3li$ated to re*ain

:uiet. 'he har* in i*+risonin$ an innocent in*ate thus stretches farther than the confines of the

su3stantial 3odily har* rule. &s a de*ocratic society, we +lace enor*ous value on a +erson(s

freedo* and autono*y, and incarceration de+rives +eo+le of these funda*ental values. It is not

only that +risoners are e-+osed to su3stantial 3odily har*, 3ut that they are li*ited fro*

e-+eriencin$ the #ind of life that we, in this country, have decided is of +ara*ount value.

83 Sanford 6. @adish, Ste+hen J. Schulhofer Carol S. Stei#er, C I/IN&L L&8 &ND I'S BC SS S th ed. 200)4citin$ ichard &. 8ri$ht, ISBNS ! ISBN S NCGCLB DI& B< C I/ &ND JUS'IC 11 2 J. Dressler ed.4 2d ed.

200244.

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rofessor /iller(s focus +urely on the 3odily har* of incarceration overloo#s the other values

that are i*+ortant in freein$ an innocent in*ate.

Second, in ar$uin$ that a wron$ful incarceration e-ce+tion should 3e read into the

su3stantial 3odily har* e-ce+tion, rofessor /iller incorrectly assu*es that the ris# of an in*ate

facin$ su3stantial 3odily har* is co**ensurate with the ris# a lawyer *ust analyAe when

deter*inin$ whether his client will li#ely har* an intended victi* . % 'he difference 3etween

these two ris#s however, is that in one scenario, the attorney has a direct relationshi+ with the

+erson ai*in$ to do the har* ? his client ? and therefore, has so*e direct understandin$ of the

intended victi*(s ris# of har*. Bn the other hand, when an attorney see#s to free an innocent

in*ate, her only $au$e as to the in*ate(s ris# of har* is a set of +rison statistics. 'he attorney

who 3elieves her client intends to do har* can have a conversation with her client, atte*+t to

dissuade hi* fro* the +lanned wron$doin$, and *easure the li#elihood that har* will ensue

anyway. Under a wron$ful incarceration situation, an attorney has none of these tools to assess

the li#elihood of har*.

Des+ite these differences, rofessor /iller ar$ues that 3ecause lawyers fre:uently $au$e

their clients( 3ehavior incorrectly, the ris#s are co**ensurate . 9 'o su++ort this conclusion, he

cites a survey conducted 3y Leslie Levin in 1EE% of a set of New Jersey lawyers where 92 out of

the ) attorneys who 3elieved that their clients were $oin$ to co**it s+ecific wron$ful acts

li#ely to result in death or su3stantial 3odily har* had at least one client who did not ulti*ately

co**it the conte*+lated acts . 6owever, rofessor /iller failed to note that of those 92

84 /iller, s&pra note )2, at ;E .

85 Id' at ;E .

86 Id' at ;E citin$ Levin, s&pra note %9, 111 112, 11% n.1%94.

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would 3e co*forta3le with co*in$ forward 3ased strictly on nationwide statistics descri3in$

conditions of incarceration. "ut, without +erfor*in$ any s+ecific research on the conditions of

an in*ate(s i*+rison*ent, an attorney could ar$ua3ly never #now with the 5reasona3le

certain ty 7E1 re:uired under /odel ule 1. 34 that disclosin$ the confidential infor*ation

would +revent su3stantial 3odily har*.

'he issue a3ove raises a third concern with re$ard to rofessor /iller(s ar$u*ent.

rofessor /iller assu*es the ethical wei$ht to co*e forward with wron$ful conviction

infor*ation is e:uivalent to that of co*in$ forward with infor*ation that +revents su3stantial

3odily har* inflicted 3y one(s own client. &t first $lance, this *ay see* li#e an o3vious +oint,

since the +revention of su3stantial 3odily har* is ostensi3ly of +ara*ount value in either

situation. 6owever, whether or not attorneys will feel e:ually co*+elled to co*e forward when

their own client is the har* doer versus an un#nown actor in a +rison facility is de3ata3le.

&n attorney *ay feel *uch *ore co*+elled and *orally o3li$ated to disclose

confidential infor*ation when his client ? a +erson with who* he has a relationshi+ ? is directly

res+onsi3le for inflictin$ su3stantial 3odily har* on an innocent third +arty. "ased on his

relationshi+ with his client, the attorney can try and $au$e the li#elihood of 3odily har*, the

$ravity of the +ossi3le in>ury, and, therefore, the need for his disclosure. Bn the other hand, the

attorney has no relationshi+ with the fellow +risoners or security $uards +otentially causin$ the

har* on the innocent in*ate. 8hile the attorney(s research *ay reveal so*e i*+ortant

infor*ation a3out the +revalence of disease or the +ossi3ility of violence in the +rison, the

attorney is still further re*oved fro* the har* i*+osed on the innocent third +arty than he is

when dealin$ with his own client(s intentions to inflict har*. rofessor /iller fails to

1 / BD L UL S B< B< (L CBNDUC' . 1. 34 14 200 4.

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ac#nowled$e in his analysis the +ossi3ility that attorneys *ay react differently to the two

situations.

/oreover, in the wron$ful conviction scenario, the innocent in*ate had an o++ortunity to

+resent a defense in court, and his su3se:uent e-+osure to har* is the result *ore 3roadly of the

>udicial syste*(s error. Bur >udiciary does not $enerally i*+ose a duty on attorneys to co*e

forward with evidence in cases where they are not re+resentin$ any +arties .E2 In fact, *ore

3roadly s+ea#in$, there is no $eneral o3li$ation for +ersons to re+ort cri*es. E; &lthou$h lawyers

have assu*ed certain res+onsi3ilities as advocates 3efore the law, they have 5hardly a$reed to

3eco*e law enforce*ent officers.7E%

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without any li*itation as to who*, one could ar$ue that the attorney who re*ains silent in fact

adheres to the +rinci+les invo#ed 3y the ethical rules.

&lthou$h the +revention of su3stantial 3odily har* is certainly an i*+ortant and valua3le

consideration in the decision to disclose confidential infor*ation that would e-onerate an

innocent +risoner, the analysis a3ove su$$ests it is not the only factor to consider. rofessor

/iller(s analysis is co*+ellin$ 3ecause it hi$hli$hts the i*+ortance of +reservin$ hu*an life,

which is certainly a++lica3le to incarceration and should 3e considered when for*in$ a wron$ful

incarceration e-ce+tion to confidentiality. 6owever, it fails to ac#nowled$e so*e of the

shortco*in$s involved in *or+hin$ an old rule to include a new ri$ht. 'he sections 3elow

outline so*e of the other +ro3le*s associated *ore 3roadly with introducin$ a wron$ful

incarceration e-ce+tion, althou$h so*e of the* certainly a++ly to rofessor /iller(s analysis.

Part II$!$ *ini(u( 0entence Re2uire(ents

Bne issue +resented 3y a +ossi3le wron$ful incarceration e-ce+tion is the len$th of

sentence that *ust 3e $iven to an innocent in*ate 3efore an attorney should either co*e forward

with e-oneratin$ evidence or should 3e $iven the ri$ht to do so. &lton Lo$an(s life sentence ?

and his twenty si- year i*+rison*ent is an e-tre*e case for which *any ar$ue there was a

*oral *andate to co*e forward. "ut what ha++ens when an innocent in*ate is sentenced to

thirty days, or >ust one dayH Is the *oral +rero$ative still >ust as stron$ when the +rison ter* is

reducedH If not, at what +oint should lawyers co*e forwardH

hysical violence and sa*e se- ra+e can and do occur as soon as the first day of

incarceration. E) &s such, if the *oral +rero$ative is to save an innocent fro* su3stantial 3odily7 United States v. "ailey, %%% U.S. ;E%, %21 1E 04 "lac#*un, J., dissentin$4 5& youthful in*ate can e-+ect to 3e

su3>ected to ho*ose-ual $an$ ra+e his first ni$ht in >ail, or, it has 3een said, even in the van on the way to >ail.74KChristo+her D. /ann, Forecasting Se0&al #7&se in .rison% The .rison S&7c&lt&re of Masc&linity as # 5ac6drop for9)eli7erate Indifference: , E2 J. Cri*. L. Cri*inolo$y 12), 19; 9%, 1 E )2 20024 citin$ Donna "ror3y,

e*ar#s at the 5Not art of the enalty7! ndin$ risoner a+e Conference Bct. 1E, 200144.

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har* ? as the /odel ules su$$est E and rofessor /iller stron$ly advocates ? then an attorney

should ar$ua3ly 3e $iven the ri$ht to co*e forward with evidence even for a sin$le day

i*+rison*ent. /oreover, the social sti$*a cast u+on a for*er convict for servin$ any ti*e in

+rison *ay 3e severe enou$h to warrant an attorney(s ri$ht to co*e forward with e-oneratin$

infor*ation as early as a sin$le day confine*ent.

& ri$ht to co*e forward, however, does not always translate into an attorney(s decision

to co*e forward, and /odel ule 1. currently allows the attorney discretion to co*e forward or

not thou$h *any states i*+ose a *andatory rule4. EE &ssu*e under an e-tre*e scenario that

disclosin$ confidential infor*ation would save an innocent fro* servin$ one day in +rison, 3ut

would i*+rison one(s client for life. &lthou$h such a scenario is incredi3ly unli#ely, one could

i*a$ine in a state with a 'hree Stri#es ule, one additional felony conviction could land one(s

client in >ail for life while savin$ an innocent in*ate fro* servin$ >ust a year. Under such a

scenario, would attorneys still co*e forwardH If the wron$ful incarceration e-ce+tion were a

*andatory rule re:uirin$ lawyers to disclose e-oneratin$ infor*ation, then at what len$th of a

+rison ter*, and under what conditions, should lawyers 3e re:uired to co*e forwardH

Under /odel ule 1. 34 14, an attorney *ay reveal infor*ation only when his client

intends to s&7stantially har* his victi* 100 ? a rather hi$h standard of cul+a3ility re:uired of the

client. 'he /odel ules do not allow disclosure of all har* reco$niAin$ that 5in so*e situations

the 3enefits of confidentiality *i$ht outwei$h those of disclosure.7 101 If the hi$h standard of

8

/ BD L UL S B< B< (L CBNDUC' . 1. c*t 200 4.

'he *andatory disclosure rule is the *inority rule, currently +resent in twelve statesT ethical codes! &riAona,Connecticut,

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cul+a3ility in /odel ule 1. 34 14 was e-tended to the wron$ful incarceration e-ce+tion, then

an attorney could only co*e forward if his client was e:ually cul+a3le, i.e. if he co**itted a

cri*e that resulted in the su3stantial 3odily har* or death of a victi*, for which an innocent was

servin$ the sentence.

'he +ro3le*, of course, with focusin$ on cul+a3ility is that the intended focus of the

e-ce+tions is on the har* i*+osed on the innocent victi*, not the cul+a3ility of the client. &s

the co**ent to /odel ule 1. says, +er*ittin$ attorneys to 3rea# confidentiality is in

reco$nition of the 5overridin$ value of life and +hysical inte$rity.7 102 &s such, it does not *atter

how cul+a3le one(s client isK all that *atters is the +revention of su3stantial 3odily har* and

reasona3ly certain death. 'hus, as soon as the ris# of har* is +resented, attorneys should

ar$ua3ly have the ri$ht to disclose confidential infor*ation even if this *eans a sin$le day of

confine*ent on 3ehalf of an innocent +erson.

Li*itin$ attorneys to disclose confidential infor*ation only if an innocent has 3een

sentenced to a s+ecified ter* such as a felony conviction, for e-a*+le4 runs the ris# that an

innocent in*ate will suffer 3odily har* 3ecause an attorney was 3arred fro* co*in$ forward for

the reduced sentence. Certainly, as the +rison sentence $rows, there is an increasin$ li#elihood

of e-+osure to +hysical har*, and a hei$htened de$ree of ris# for contractin$ a disease, 3ut such

har* *ay occur *uch sooner. Settin$ a +redeter*ined sentence re:uire*ent *eans that an

innocent in*ate *ay 3e forced to serve ti*e while another is freed, si*+ly 3ased on a relatively

ar3itrary cutoff. &lthou$h a $reater sentence *ay i*+ly a 3i$$er i*+in$e*ent on freedo* and

autono*y over ti*e, any +redeter*ined distinction 3ased on +rison ter* still disre$ards the

1!2 / BD L UL S B< B< (L CBNDUC' . 1. c*t. 200 4.

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+ossi3ility of 3odily har*, financial loss, social sti$*a, and su3stantial loss of freedo* that *ay

occur with any i*+rison*ent.

"ecause of the +ro3le*s associated with a +redeter*ined *ini*u* sentence

re:uire*ent, any e-ce+tion for wron$ful incarceration should not i*+ose a *andatory +rison

ter* for an attorney to disclose confidential infor*ation to free an innocent in*ate. &llowin$ an

attorney the discretion to co*e forward for any +rison len$th allows hi* or her to +ro+erly

wei$h the +otential for 3odily har*, financial loss, and the infrin$e*ent on freedo* and

autono*y an in*ate *ay suffer a$ainst the ri$hts of his client 3efore co*in$ forward with

confidential infor*ation. Si*ilarly, the current e-ce+tions to the /odel ules allow attorneys

the discretion to disclose with relatively few constraints as to when and under what

circu*stances, 10; su$$estin$ that +erha+s attorneys are in the 3est +osition to wei$h the ethical

issues +resented with disclosin$ confidences. &lthou$h affordin$ attorneys the discretion to

co*e forward for any +rison ter* *ay not 3e the ideal solution, and *ay very well result in

*any attorneys choosin$ not to co*e forward +articularly for shorter +rison ter*s, it is the 3est

o+tion that +ro+erly considers the ill effects that *ay result with any +rison ter* and the ri$hts of

a client to trust in his attorney(s confidentiality.

Part II$&$ Procedural Issues: #he Right #i(e to &isclose

In considerin$ to disclose confidences a3out a wron$ful incarceration, an attorney *ust

consider when durin$ a >udicial +roceedin$ to disclose the infor*ation. rofessor /iller asserts

that attorneys should 3e a3le to disclose client infor*ation 3ecause of the lar$e +ercenta$e of

defendants detained at so*e +oint durin$ the +re trial +eriod .10% Since defendants are often

1!3 See / BD L UL S B< B< (L CBNDUC' . 1. 200 4.

1!4 /iller, s&pra note )2 , at ;E .

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detained even durin$ +re trial +roceedin$s, and are thus e-+osed to the threat of su3stantial

3odily har*, attorneys should 3e a3le to co*e forward 3efore the trial has even 3e$un. In fact,

there is so*e su++ort for this sense of i**ediacy to disclose in /odel ule 1. 34 14 which

re:uires that the 5client(s announced cri*inal act 3e li#ely to result in imminent death or

su3stantial 3odily har*.7 109 &dditionally, assu*in$ the lar$e costs of liti$ation, those states that

+er*it or re:uire attorneys to disclose client infor*ation to +revent su3stantial in>ury to the

financial interest of another should ar$ua3ly allow attorneys to co*e forward as early as the +re

trial +hase of the +roceedin$s.

&n i**ediate disclosure rule +resents a few issues, however, in those states that re

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*urder trial. 10 /iller(s client, d$ar 6o+e, told /iller he did not #now &lton Lo$an and had

never seen hi* 3efore the two were arrested .10E revented fro* disclosin$ the confidential

infor*ation under Illinois ethical rules, /iller told Lo$an(s attorney that he re+resented an

innocent *an. 110 6e also told @unA, &ndrew 8ilson(s lawyer, that 8ilson was the actual

shooter in the case a$ainst Lo$an, which insti$ated 8ilson(s lawyers to :uestion his role in the

shootin$. 111 6ad /iller co*e forward to the court to declare Lo$an(s innocence, he *i$ht have

i*+licated his own client. In fact, a rule that would re:uire such disclosure could violate a

client(s ri$ht to effective counsel under the Si-th &*end*ent and the ri$ht a$ainst self

incri*ination under the

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order to +revent financial in>ury, and there is no reason to 3elieve that such reluctance would not

also a++ly durin$ +re trial +roceedin$s, even when the lar$e e-+ense of liti$ation loo*s.

Des+ite attorneys( reluctance to disclose infor*ation durin$ or 3efore trial, once an

innocent defendant has 3een sentenced it can 3e :uite difficult to a++eal his conviction. /ost

+rosecutors $enuinely 3elieve in the $uilt of +ersons that a >ury has found $uilty 3eyond a

reasona3le dou3t. 11% Bnce a defendant is convicted, the +resu*+tion of innocence fades, and a

+rosecutor no lon$er ado+ts a +rotective +osture towards the defendant .119 /oreover, as a +olicy

*atter, 5the reo+enin$ of a closed case invites +u3lic distrust of the accuracy of the cri*inal

>ustice syste*.711

New evidence often 5lac#s the rin$ of truth7 and *ay 3e considered a last

ditch effort on the +art of the convict hi*self to avoid incarceration .11) resu*a3ly, defense

attorneys understand the difficulty of introducin$ new infor*ation to e-onerate a client. 'heir

reluctance to co*e forward early in a +roceedin$ should 3e 3alanced 3y the difficulty in hel+in$

an innocent defendant once he or she has 3een convicted. &lthou$h a wron$ful incarceration

e-ce+tion need not necessarily indicate at +recisely which +oint an attorney should co*e

forward, attorneys +resented with confidential, e-oneratin$ infor*ation *ust face these issues

when decidin$ when to co*e forward with confidential, e-oneratin$ infor*ation.

Part II$E$ Effective !ounsel3 0elf Incri(ination and 4se I((unity

114

8illia* 6odes, (hat 1&ght to 7e )one>(hat "an 7e )one>(hen the (rong .erson is in 4ail or #7o&t to 7e E0ec&ted* #n Invitation to a M&lti )isciplined In

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"y 3rea#in$ confidentiality and disclosin$ incri*inatin$ infor*ation a3out her client, an

attorney ar$ua3ly violates her client(s Si-th and oy the ri$ht . . . tohave the &ssistance of Counsel for his defence.7 5'he +ur+ose of the +rivile$e is to encoura$e clients to *a#e fulldisclosure to their attorneys.7

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privileged infor*ation. 12; &s such it is essential to deter*ine whether a client(s confession to his

attorney of a cri*e for which an innocent is either on trial or servin$ a sentence falls within the

real* of +rivile$ed infor*ation. Under the Su+re*e Court(s Standard 90;, a confession of

one(s $uilt to an attorney in order to receive le$al advice is a +rivile$ed co**unication. 12% &

confession does not declare one(s intent to co**it a future cri*e, and thus does not fall under

the cri*e fraud e-ce+tion of the attorney client +rivile$e .129 /oreover, if the trial is on$oin$

such as the co defendants hy+othetical a3ove, the confession is 5intrinsically and ine-trica3ly7

related to the cri*e for which the defendant is 3ein$ tried, hi$hli$htin$ the i*+ortance of its

+rivile$ed status.12

Since the disclosure of +rivile$ed infor*ation already +roves the denial of the client(s

ri$ht to counsel, the second +ron$ of rofessor Su3in(s analysis is unnecessary to analyAe, and

disclosure violates a client(s Si-th and

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a++ly to the situation in which an atte*+t is *ade to co*+el infor*ation fro* a +otential

defendant, 3ut how these +rinci+les a++ly to atte*+ts to co*+el attorneys to +roduce

incri*inatin$ testi*ony a3out their clients.7 12

'he Su+re*e Court addressed the relationshi+ 3etween the

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'hus the :uestion is whether a client(s confession of a cri*e to his attorney for which an

innocent is either 3ein$ tried or is servin$ +unish*ent is a4 5a *atter that could not have 3een

co*+elled fro* the client7 and 34 a *atter that was discussed with an attorney 5for the +ur+ose

of +rovidin$ +rofessional services.7 1;% &s discussed a3ove, the second criterion is *et 3y

assu*in$ that clients $enerally confess their $uilt to attorneys in order to receive +rofessional

$uidance. Under the first +ron$, confessin$ to a cri*e is the :uintessential self incri*inatin$

revelation +rotected under the

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testi*ony, it 5only +rohi3its usin$ the infor*ation in a cri*inal +rosecution.7 1;E If a client,

however, decides to disclose the truth a3out certain conduct, the

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rule that would essentially $rant a $uilty defendant a $o to >ail free card, des+ite on$oin$

investi$ations a$ainst hi* or her. 1%

rofessor Su3in(s ar$u*ent, however, does not ade:uately ne$ate the +otential a3use of

use i**unity to for$o +unish*ent 3y a $uilty defendant. If a client #nows that disclosin$

incri*inatin$ +rivile$ed infor*ation could $rant hi* i**unity, then there would 3e incentive to

confess since there would 3e no su3se:uent +unish*ent for the cri*e he co**itted. &lthou$h

such a3use could 3e avoided in cases where there were on$oin$ investi$ations 3y the ti*e the

confession was disclosed, it would 3e +ro3le*atic in cases where the +rosecution was actually

+rosecutin$ so*eone else for the cri*e ? e-actly the situation +resented 3y a wron$ful

conviction.

rovidin$ incentives for $uilty clients to disclose infor*ation that would free innocent

*en and wo*en is, of course, not alto$ether *ali$n. "ut, the sacrifice society *ust +ay in

e-chan$e is $rantin$ $uilty *en and wo*en i*+unity, which could 3e +articularly difficult for

the victi*s of such cri*es, and which would leave +otentially dan$erous cri*inals on the streets.

&nother draw3ac# of the use i**unity rule is that it could +rovide incentives for innocent

clients to confess to cri*es to their attorneys in order to save their $uilty friends fro*

incarceration. &ssu*in$ the innocent client could sufficiently +rove he did the cri*e, then 3oth

+arties would wal# away without servin$ any ti*e in +rison. &lthou$h such a confession would

3e ris#y, so*e clients *ay 3e willin$ to ta#e the ris#, +articularly if they owe so*ethin$ or are

o3li$ated to the $uilty defendant in any way.

Des+ite these draw3ac#s, use i**unity *ay 3e the 3est and only o+tion availa3le under a

wron$ful incarceration e-ce+tion. 8ithout use i**unity, as shown a3ove, clients(

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Si-th &*end*ent ri$hts could 3e violated 3y co*+ellin$ disclosure of incri*inatin$ infor*ation

3y one(s own attorney. iven the constitutional violations tri$$ered 3y an attorney(s decision to

disclose incri*inatin$ infor*ation, use i**unity *ay 3e a cost society decides is worth the

3enefit of freein$ innocent *en and wo*en fro* servin$ sentences they do not deserve.

Part II$5$ Would A )ew Rule *a6e Any &ifference7

ven after the +ro*ul$ation of a new e-ce+tion, it is :uestiona3le whether a new rule

would *a#e *uch difference in lawyers( 3ehavior anyway. Dale Coventry, for e-a*+le,

reiterated ti*e and a$ain how i*+ortant his client(s trust and confidentiality was in *a#in$ his

decision to re*ain silent until 8ilson(s death. 1%) Under a discretionary rule, it is :uestiona3le

whether Coventry would disclose his client(s confession, since his client(s trust was ulti*ately of

+ara*ount value. /assachusetts is the only state in the country that currently has a wron$ful

incarceration e-ce+tion. Co**ent E& to the /assachusetts ule e-+lains that the e-ce+tion

5+er*its a lawyer to reveal confidential infor*ation in the s+ecific situation where such

infor*ation discloses that an innocent +erson has 3een convicted of a cri*e and has 3een

sentenced to i*+rison*ent or e-ecution.7 1% &s of the writin$ of this &rticle, I could find no

re+orted instances of a lawyer *a#in$ disclosure under this rule. &lthou$h it is +ossi3le that

there have 3een no cases to re+ort, it *i$ht very well 3e that lawyers are choosin$ to re*ain

silent des+ite the e-ce+tion.

'here is so*e evidence that even a *andatory rule would not *a#e *uch of a difference

in lawyers( 3ehavior. 1%E &ccordin$ to Leslie Levin(s study of New Jersey lawyers, only a3out147 Interview 3y David Gellen with Dale Coventry, in Loyola University, Chica$o, Il. Nov. ;, 200 4.

148 / &SS. . B< (L CBNDUC' . 1. 34 14 c*t. E.

14 8hether an e-ce+tion would in reality +roduce *uch 3enefit to the wron$fully accused or convicted even if alawyer did disclose confidential infor*ation is another concern worth e-+lorin$. In fact, 5if a lawyer were to reveala deceased client(s confession to a cri*e for which another had 3een char$ed or convicted, there are a nu*3er of

###"iii

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half of the lawyers who were re:uired to disclose under New Jersey(s ule of rofessional

Conduct 1. to +revent death or su3stantial 3odily har* actually *ade disclosures. 190 &lthou$h

lawyers offered a nu*3er of reasons for not disclosin$ client infor*ation to +revent har* to

another, *ost of these reasons related to a 3asic disa$ree*ent with the disclosure rule .191 &lso,

the lawyers who did not disclose client infor*ation to +revent har* often indicated that they did

not do so 3ecause of the +erceived i*+ortance of *aintainin$ client trust .192

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art of the reason lawyers can re*ain silent des+ite *andatory rules is 3ecause it is

nearly i*+ossi3le to +olice their 3ehavior. If 3oth a client and attorney re*ain silent a3out a

confession, then there is virtually no way to +olice the lawyer. Under such conditions, attorneys

*ay 3e *ore li#ely to 3ehave accordin$ to what they 3elieve is ri$ht or wron$, instead of what

the ethical $uidelines re:uire. In fact, Ja*ie @unA, one of &ndrew 8ilson(s lawyers, clai*ed

that if &lton Lo$an had faced the death cha*3er instead of life in +rison, she would have co*e

forward re$ardless of the ules of rofessional Conduct .19 'here is so*e evidence that clients,

even those who understand confidentiality rules to 3e a3solute, 3elieve that their lawyers will

3ehave accordin$ to their +ersonal sense of what should 3e #e+t confidential.19)

ud$e 3efore revealin$ 8ilson(s confession in court. Sharon Cohen,

M&rder =erdict Sealed 7y Silence , L.&. ' I/ S , &+r. 1;, 200 .

#l
http://findarticles.com/p/articles/mi_6997/is_/ai_n28501019http://findarticles.com/p/articles/mi_6997/is_/ai_n28501019http://findarticles.com/p/articles/mi_6997/is_/ai_n28501019

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!onclusion:

u3lic res+onse to wron$ful incarcerations and e-ecutions reflects dee+ resent*ent and

disa++roval of this very serious flaw in the >udicial syste*. In addition to DN& tests which hel+

e-onerate the innocent, a wron$ful incarceration e-ce+tion could add another safe$uard for the

innocent. 1 2 'he *edia e-+losion and the su3se:uent +u3lic dis$ust with &lton Lo$an(s 2 year

incarceration 1 ; su$$est that the +u3lic would favor an e-ce+tion. &lthou$h all of the issues

+resented a3ove should 3e carefully considered, the +u3lic(s outra$e is certainly a factor to

consider in the decision to +ro*ul$ate a new rule, since after all, lawyers are *eant to act on the

le$al 3ehalf of the +u3lic(s will.

& cou+le of +ro+osals have already 3een +resented. rofessor /iller(s contri3ution ? the

analo$y to su3stantial 3odily har* discussed a3ove ? certainly adds to the #nowled$e +ool .1 %

'he 3i$$est stren$th in his ar$u*ent co*es throu$h the /odel ules( assertion that the

+revention of su3stantial 3odily har* is an overridin$ concern over confidentiality .1 9 Bne of the

3i$$est flaws, thou$h, is that incarceration *ay involve *uch *ore than su3stantial 3odily har*,

such as the loss of freedo*, autono*y, and the ri$ht to a *eanin$ful +ersonal e-istence.

&lthou$h so*e additional concerns with his analo$y are listed in Section 'wo a3ove, rofessor

/iller certainly raises so*e valua3le considerations which should 3e conte*+lated in

introducin$ a new e-ce+tion.

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&s e-+lained in art II.&., one of the *ain concerns with introducin$ any e-ce+tion to

attorney client confidentiality is the effect on discussions with clients. &s one court +ut it, 5the

effectiveness of counsel is only as $reat as the confidentiality of its client attorney

relationshi+.7 1)0 & new e-ce+tion could da*+en discussions and +revent clients fro* divul$in$

the truth to their attorneys. 1)1 Not only would this hurt clients in their le$al re+resentation, 3ut 3y

inhi3itin$ truthful discussions, it would +revent attorneys fro* 3ein$ in a +osition to convince

clients to disclose e-oneratin$ infor*ation the*selves. In the end, the effect of reducin$

confidentiality could +roduce few, if any, 3enefits since lawyers would no lon$er #now the truth

anyway.1)2

Bn the other hand, the effects of confidentiality on client discussions are difficult to

:uantify, 1); and a new e-ce+tion *ay have no effect on client discussions. Clients are not always

aware of the +recise constraints on confidentiality, and they often still s+ea# candidly with their

attorneys. 1)% 'he +recise i*+act on client discussions is nearly i*+ossi3le to *easure, 3ut an

assault on the candid conversations re:uired of effective le$al re+resentation should not 3e ta#en

li$htly.

'hou$h not a solution to all of the issues raised a3ove, the 3est rule *ay 3e one that

would allow lawyers the discretion to disclose confidential infor*ation for a wron$ful

incarceration. 'he /odel ules( current e-ce+tions to confidentiality afford an attorney $reat

leeway in the decision to disclose confidential infor*ation. 'he e-ce+tions allowin$ attorneys to

reveal infor*ation concernin$ future cri*es 5have 3een $iven very 3road discretion with

17!

eo+le v. "el$e, ; /isc.2d 1 , 1 E 1E)94.171

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virtually no definition of the +rovisions( ter*s and sco+e.7 1)9 'he /assachusetts ule allowin$

disclosure to +revent 5the wron$ful e-ecution or incarceration of another7 +rovides no $uidance

as to when an attorney should co*e forward, the len$th of sentence, or the +ossi3ility of use

i**unity. Such discretion +erha+s su$$ests that attorneys, in the end, are in the 3est +osition to

re$ulate such decisions. In fact, co*in$ forward with confidential infor*ation too soon in a

+roceedin$, or to save an innocent defendant fro* servin$ a very short sentence, would result in

$rave conse:uences to the defense attorney(s re+utation and client loyalty and trust. Bn the other

hand, co*in$ forward too late could result in the *edia 3ac#lash that Coventry, @unA, and

6u$hes faced thou$h, it is unclear whether their +rofessional careers have 3een i*+acted 3y

their decision to #ee+ confidences for so lon$4, and +erha+s *ost i*+ortantly, could wei$h

heavily on lawyers( consciences.

&llowin$ attorneys the discretion to co*e forward when and if they thou$ht it was

a++ro+riate would allow attorneys to a++ro+riately $au$e all of the co*+etin$ interests that

+resent the*selves in a wron$ful conviction e-ce+tion. &ny 3lac# letter law that set in stone

when, if, and under what circu*stances an attorney should co*e forward would detract fro* the

various issues +resented 3y the situation. & discretionary rule with few e-actin$ constraints *ay

3e the only o+tion that would reflect the $ravity of issues +resented. Inherent in a discretionary

rule is the +ossi3ility that lawyers will choose not to co*e forward, 3ut it is a +rice that *any

>urisdictions with si*ilar discretionary rules for the su3stantial 3odily har* and i**inent death

e-ce+tions already choose to +ay in order to ensure that clients are $iven the effective

re+resentation the constitution $uarantees. Si*ilarly, it is a +rice worth +ayin$ in the case of

wron$ful incarcerations.

SSRN-id1447516 (2)

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