Ethics

Legal ethics professors like to ask students whether a lawyer should be allowed to disclose a client's confidential information in order prevent the wrongful execution or incarceration of another person.  The issue, it turns out, is not simply a good classroom hypo; there are a number of reported cases where lawyers have faced this very question.

The question, in fact, has arisen twice recently, in North Carolina and in Illinois.  Just this evening (Sunday), 60 Minutes ran a compelling story about the Illinois case, which involves the apparent innocence of a man named Alton Logan.  (Thanks to my colleague, Gabe Teninbaum, for the tip.) 

According to the 60 Minutes account, another man, Andrew Wilson, confessed more than twenty years ago to committing the crime for which Logan was convicted.  The only problem for Logan: Wilson confessed to his own lawyers, not to the police.  Wilson's lawyers sat on the information, until Wilson died recently, and then disclosed the decades-old confession to Logan's counsel.  Logan's lawyers are now seeking a new trial based on the confession. 

You can watch the story below, or if you'd prefer, you can simply read the transcript.

Throughout the story, the reporters note that Wilson's lawyers had an ethical obligation to keep their client's confidences during the time that Wilson was alive.  Indeed, that's probably a correct statement of the law in Illinois. 

But as we have discussed elsewhere on this blog, and as Monroe Freedman teed up nicely in his discussion of the similar North Carolina case, the law is not as uniform as the 60 Minutes story suggests.  Indeed, Massachusetts has an unusual exception that permits lawyers to disclose confidential information to prevent the wrongful incarceration or execution of another person.  Although the Massachusetts provision is apparently unique, cases like Alton Logan's suggest that other states might consider a provision of this sort, or at least some variation of it.  As the comments after Monroe's post explain, there are some potential problems with the Massachusetts provision, including the level of knowledge that lawyers should have before disclosing, but the benefits of such an exception probably outweigh the costs.

Addendum:  When I cover this issue in class, students sometimes look to Model Rule 1.6(b), which allows lawyers to disclose confidential information to prevent reasonably certain death or substantial bodily harm, and they ask an excellent question.  Namely, is incarceration "substantial bodily harm?" 

I don't think this is what the rule drafters had in mind when they re-drafted 1.6(b) a few years ago, but I do think that you could make an argument that long-term incarceration involves bodily harm, either specifically or more generally.  Specifically, you could argue that incarceration comes along with a much higher risk of being subjected to violence.  And more generally, you could argue that the very fact of incarceration is a sort of significant bodily injury.  Not the strongest arguments, mind you, but they do seem plausible.

Does anyone think that either of these arguments would fly if a lawyer disclosed confidential information in order to prevent the wrongful incarceration of another person, and the disclosure occurred in a state that had adopted Model Rule 1.6(b)?  I think the Model Rules exception would certainly allow disclosure to prevent execution; such a disclosure would be necessary to prevent reasonably certain death. The ambiguity, it seems to me, is with incarceration.  What do you all think?