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Ethics

By David Oscar Markus

Here's a little ethics question for my SDFLA readers on Monday morning:

Should the attorney-client privilege survive a client's death when revealing that client's statements (that he was the murderer and not the guy on death row) would save a man from death row or from life imprisonment (or any imprisonment)?

Those are the questions Adam Liptak examines in this NY Times article from a real life example. It's pretty dramatic that the judge is threatening the lawyer for revealing his dead client's statements:

STAPLES HUGHES, a North Carolina lawyer, was on the witness stand and about to disclose a secret he believed would free an innocent man from prison. But the judge told Mr. Hughes to stop.

?If you testify,? Judge Jack A. Thompson said at a hearing last year on the prisoner?s request for a new trial, ?I will be compelled to report you to the state bar. Do you understand that??
But Mr. Hughes continued. Twenty-two years before, he said, a client, now dead, confessed that he had acted alone in committing a double murder for which another man was also serving life. After his own imprisoned client died, Mr. Hughes recalled last week, ?it seemed to me at that point ethically permissible and morally imperative that I spill the beans.?
Judge Thompson, of the Cumberland County Superior Court in Fayetteville, did not see it that way, and some experts in legal ethics agree with him. The obligation to keep a client?s secrets is so important, they say, that it survives death and may not be violated even to cure a grave injustice ? for example, the imprisonment for 26 years of another man, in Illinois, who was freed just last month.

This is a classic law school hypo, and it's interesting to see how it is playing out in the real world. Monroe Freedman, the ethics guru, is quoted a bunch in the article. He would draw the line at saving someone from death row, but not life imprisonment:

Most experts in legal ethics agree that lawyers should be allowed to violate a living client?s confidences to save an innocent man from execution, but not to free someone serving a prison term, however long.
?I prefer to draw the line at the life-and-death situation,? said Monroe Freedman, who teaches legal ethics at Hofstra. ?That situation is sufficiently rare that is doesn?t present a systemic threat. If that is extended to incarceration in general, it would end the sense of security clients have in speaking candidly with their lawyers.?
The questions get more complicated when the client has died.

So, SDFLA readers, what do you think?

And have a happy Cinco de Mayo!

Full post as published by Southern District of Florida on May 05, 2008 (boomark / email).