The drive to right wrongful convictions can sometimes create an ethical tension for civil and criminal attorneys. A lawyer in any kind of practice, but most likely criminal defense, may learn from a client that they committed a crime ascribed to someone else. When an innocent person faces conviction, imprisonment, and in some cases death, an attorney mindful of the injustice occurring to a third party is still bound by the rules of confidentiality to honor their commitment to their client.

Interestingly, one of fiction’s greatest detectives addressed this very issue. In “The Boscombe Valley Mystery,” Sherlock Holmes investigated the murder of a local resident Charles McCarthy. His son, James, had been accused of the crime. Alice Turner, the daughter of John Turner, their neighbor and benefactor, believed in James’ innocence and retained Mr. Holmes. After thoroughly examining the evidence, the inimitable detective confirmed her beliefs. He determined, without revealing to his client, that her father John Turner was responsible, not James McCarthy.

The victim had been blackmailing Mr. Turner over nefarious events from their former lives in Australia. While Mr. Turner, who did not have long to live, was disconcerted over the wrongful accusation of James, he chose to remain silent because he hoped that the prosecution would fall on its own.

However, it was likely that he would expire before James McCarthy’s case was adjudicated. In order to avoid spending his last weeks of life in jail and to prevent his daughter from learning about his secret, Mr. Turner agreed to Holmes’ inventive compromise:

“Holmes rose and sat down at the table with his pen in his hand and a bundle of paper before him. ‘Just tell us the truth,’ he said. ‘I shall jot down the facts. You will sign it, and Watson here can witness it. Then I could produce your confession at the last extremity to save young McCarthy. I promise you that I shall not use it unless it is absolutely needed.'”¹

This Holmesian approach anticipated the difficulties in resolving the thorny issue of protecting confidentiality and preventing a miscarriage of justice. And revealed how this problem can arise in many professional contexts beyond attorney-client.

The post-mortem exculpation has been used with some effect in criminal matters, such as in the case of Alton Logan cited below. But this is only one of many possible outcomes of a most difficult ethical quandary.

The ABA Model Rules of Professional Conduct (ABA MPRC) has changed the landscape of attorney-client relations by creating an exception to confidentiality. Under the MRPC Rule 1.6(b)(1) a lawyer may “reveal” or “use” confidential information “to prevent reasonably certain death or substantial bodily harm.” And Massachusetts’ version extended it further to allow disclosure in order to prevent “wrongful execution or incarceration of another.”

Interpreting this Rule in the context of wrongful convictions is complicated by evidentiary and practical considerations surrounding the potential use of such information. This article will examine resources about several notable cases and the scholarly literature analyzing different approaches to resolving this dilemma.

ETHICS CODES AND RULES

• ABA MRPC Rule 1.6 Confidentiality of Information
  “(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
  (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm . . . .”
• Massachusetts Rules of Professional Conduct Rule 3:07
  “Rule 1.6(b) A lawyer may reveal, and to the extent required by Rule 3.3, Rule 4.1(b), or Rule 8.3 must reveal, such information: (1) to prevent the commission of a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm, or in substantial injury to the financial interests or property of another, or to prevent the wrongful execution or incarceration of another.”

CASES

• 26-Year Secret Kept Innocent Man in Prison, CBS 60 Minutes (Broadcast March 9, 2008; Updated May 23, 2008) (Alton Logan case)
  “This is a story about an innocent man who languished in prison for 26 years while two attorneys who knew he was innocent stayed silent. As correspondent Bob Simon reported earlier this year, they did so because they felt they had no choice.”
  • Alton Logan’s Story, Chicago Public Radio Series
  • South Side Man Finally Free After 26 Years, Chicago Tribune, Sept. 5, 2008

• When Law Prevents Righting a Wrong, New York Times, May 4, 2008 (Lee Wayne Hunt case)
  “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.
  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.”

• Attorney-Client Privilege as Affected By Its Assertion as to Communications, or Transmission of Evidence, Relating to Crime Already Committed, 16 A.L.R.3d 1029
  “This annotation collects the cases dealing with the question of how the attorney-client privilege is affected by its assertion as to communications or transmission of evidence relating to a crime which has already been committed.”

LAW REVIEWS

• Confidentiality and Wrongful Incarceration, 23 ABA Criminal Justice 46 (Summer 2008).
  “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 arm limits around n 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.”
• Convictions of Innocent Persons in Massachusetts, 12 B.U. Pub. Int. L.J. 1, 40 (2002)(George Reissfelder case)
  “This Article draws upon previous works by others, chiefly Edwin Borchard, Michael Radelet, Hugo Bedau, and Constance Putnam, who, in national studies of erroneous convictions, cited and described a number of Massachusetts cases dating from the early-nineteenth century to the late-twentieth century. To their descriptions I have added other cases, mostly from recent years, which came to my attention from the media and other sources. When time and access to materials have permitted, I have attempted to corroborate and supplement secondary accounts by examining trial transcripts, appellate briefs and records, and judicial opinions.
  Part II of this Article sets forth my criteria for identifying and classifying ‘innocence cases.’ In Part III, I divide the relevant Massachusetts cases (thirty-three in total) into three groups (tables), and discuss the cases in each group separately and alphabetically. Table A lists fifteen convicted persons who have been ‘officially’ exonerated. Table B lists twelve convicted persons who have not been officially exonerated, but whose convictions have been reversed in circumstances raising strong doubts about their factual guilt. Table C lists six convicted persons who have won neither official exoneration nor freedom – all, indeed, were executed or died in prison – but as to whom strong, credible claims of factual innocence exist. In Part IV, I analyze and comment upon this data and draw conclusions about its implications for law reform in the Commonwealth. Part V consists of a brief conclusion.”
• Current Development 2008-2009: Model Rule of Professional Conduct 3.8: The ABA Takes a Stand Against Wrongful Convictions, 22 Geo. J. Legal Ethics 829 (2009)
  “The American Bar Association (‘ABA’) has also taken notice of this issue. This year, the ABA added two new subsections to Model Rule of Professional Conduct 3.8 that provide requirements for prosecutors handling a questionable conviction. n20 Rule 3.8(g) requires a prosecutor to disclose any new evidence that may exonerate a convicted defendant. n21 Rule 3.8(h) requires a prosecutor to try to overturn a conviction when he or she receives clear and convincing evidence that the convicted defendant did not commit the offense. n22 New York did not have equivalent provisions in its state rules of professional conduct during Bibb’s trial.
  This Note will examine the additions to Rule 3.8 and how these new additions will change the landscape of criminal prosecution. If these rules are enforced, and prosecutors are sanctioned for violations, the rules will be successful in addressing some of the major problems in prosecutorial ethics. However, there are many institutional problems that will hinder the success of these rules and they must be addressed before the profession can improve ethically.
  Part I will describe the history of the Model Rules of Professional Conduct (‘Model Rules’) and Rule 3.8. Part II will examine the role of prosecutors, the charge that prosecutors should be ministers of justice, and whether these new rules are compatible with that charge. Part III will examine the problem of wrongful convictions and how the new rules will remedy this problem. Part IV will examine the institutional problems that will be an obstacle to enforcement of the Model Rules. Finally, Part V will examine further actions that will improve the ethical conduct of prosecutors.”
• Morales v. Portuondo: Has the Seal of the Confessional. Sprung a Leak?, 42 Cath. Law. 105 (2002)
  “On July 24, 2001 Jose Morales was released from jail by the order of federal district Judge Denny Chin. Morales, as well as his friend Ruben Montalvo, had been convicted in 1989 for the brutal slaying of a young man, Jose Rivera. Throughout their incarcerations, both men vigorously proclaimed their innocence and appealed their convictions numerous times. Finally, upon a second filing of a habeas corpus petition, Morales was able to convince Judge Chin that his due process rights had been violated and that he deserved to be a free man. Thereafter, Montalvo was also released, and Judge Chin has ordered the Bronx District Attorney not to retry their cases.
  The granting of a habeas petition is in and of itself unusual. Of the 24,945 petitions filed in the federal courts in the year 2000, only a handful were granted. The Morales case is all the more unusual because of the evidence Morales used to support his petition. His petition was supplemented with an affidavit from a Roman Catholic priest, Father Joseph Towle, who testified that another young man had both confessed to the Rivera murder and admitted that Morales and Montalvo were not even at the scene of the crime. Father Towle had learned this information after he met in private with this man, Jesus Fornes, shortly after Morales and Montalvo were convicted. At the conclusion of this meeting, Father Towle granted Fornes absolution for his sins.”
• Mr. Prinzo’s Breakthrough and the Limits of Confidentiality, 51 St. Louis L.J. 1059 (2007)
  “Engaging students in the required Professional Responsibility course is not always easy. There are many ways we attempt to overcome this resistance, including bringing in current events, emphasizing remedies other than lawyer discipline, and making use of a number of currently available audio-visual aids, including clips from movies and television shows. In this article, the author describes her use of Mr. Prinzo’s Breakthrough, an absurd, black humor short story by Bruce Jay Friedman, to teach the limits of the obligation of confidentiality.”
• Ordeal By Innocence: Why There Should Be a Wrongful Incarceration-Execution Exception to Attorney-Client Confidentiality, 102 Northwestern Univ. L. Rev. Colloquy 391 (2008)
  “Two recent 60 Minutes stories have shed light on a dilemma that previously remained in the shadows for years, much like the innocent men it affected. In 1982, Alton Logan was convicted of first-degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald’s. What the jury that convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed. The problem was that Wilson confessed to his attorneys, public defenders Dale Coventry and Jamie Kunz, who confirmed with the relevant authorities that they were bound by the rules of professional responsibility not to disclose their client’s confession. Coventry and Kunz did prepare an affidavit detailing Wilson’s guilt and in fact planned to come forward if Logan were given the death penalty. Ironically, two holdouts on the jury seemingly spared Logan’s life by voting against capital punishment, but in fact dealt him the same fate that would befall the affidavit: being locked up—Logan in a prison cell; the affidavit in a lock box. Pained by guilt, the public defenders convinced Wilson to allow them to reveal his guilt after his death, resulting in Logan’s eventual release from prison twenty-six years after he entered.”
• Overriding the Posthumous Application of the Attorney-Client Privilege: Due Process for a Criminal Defendant, 83 Marq. L. Rev. 785 (2000)
  “This Comment will argue that it is a Brady violation for a prosecutor to prevent a defendant from either learning of information gained by an attorney from a now-deceased client or by objecting to such testimony in court. Moreover, a court also commits a Brady violation by refusing to admit such testimony as evidence or by refusing to compel such testimony by a lawyer. Such an argument includes an expansive view of the Brady doctrine, extending the doctrine beyond the mere suppression of evidence to include the courtroom and the prevention of evidence from entering a criminal proceeding.
  In addition, to ensure that an attorney has guidance in such a situation, Model Rule 1.6 should require that a lawyer make such a disclosure if the lawyer knows or reasonably should know that such information could ‘potentially exculpate’ 14 a criminal defendant.
  Part II to follow discusses the United States Supreme Court’s most recent examination of the posthumous application of the attorney-client privilege. Part III examines cases that demonstrate the need for an ‘override’ 15 of the attorney-client privilege and a modification to Model Rule 1.6. Then, Part IV explores cases that should allow a criminal defendant to invoke his or her due process rights to overcome the prohibition of disclosure by a lawyer who is either prevented from or unwilling to disclose client confidences based on the posthumous application of the attorney-client privilege. Last, the intersection between posthumous application of the attorney-client privilege, the Fifth Amendment rights of a criminal defendant, and the Model Rule 1.6 duty of confidentiality will be examined in Part V.”
• Rethinking Confidentiality?, 74 Iowa L. Rev. 351 (1989)
  “A recent study in Tompkins County, New York, questioned laypersons and lawyers about the following attorney-client communication: A client tells a lawyer the location of a ‘missing child’ or kidnapping victim. The client is not implicated in the person’s disappearance, but does not want the lawyer to disclose the information because the client ‘doesn’t want to get involved.’ The client will not accept the lawyer’s assurance that the lawyer could act without naming the client.
  The prevailing New York confidentiality rule requires the hypothetical lawyer to remain silent. Yet 72% of the lawyers responded that a ‘good attorney’ would disclose the whereabouts of the kidnap victim. 3 Roughly 80% of the lay subjects stated that the lawyer should be allowed to disclose. 4 This Article presents the findings of the Tompkins County study and reconsiders attorney-client confidentiality in light of those findings. The Article provides substance to the notion that strict confidentiality rules go too far.”
• Special Threat of Informants to the Innocent Who are Not Innocents: Producing ‘First Drafts,’ Recording Incentives, and Taking a Fresh Look at the Evidence, 6 Ohio State Journal of Criminal Law 519 (2009)(Lee Wayne Hunt case)
  “Fabricated testimony by informants often plays an important role in convictions of the innocent. In this article, I examine the particularly problematic situation of defendants who are innocent of the particular crime charged but are not strangers to crime. As to such defendants, potential informants abound among crime associates, and they have a ready story line that authorities are preconditioned to accept. Independent proof, which could be an antidote, will predictably be lacking. Indeed, that the informant has exclusive, critical knowledge often leads the prosecution to offer particularly tempting deals.
  I focus on the case of Lee Wayne Hunt, a likely an innocent man condemned to spend his life in a North Carolina prison. Hunt, who was the head of a local marijuana distribution ring, was convicted of apparently drug-related murders exclusively by the testimony of informants. The strong reason to believe he is innocent comes from confession of sole guilt by an alleged co-participant made to his lawyer before his own trial for the murders, a confidential communication revealed only after the client’s suicide. Remarkably, relief has been refused.
  To reduce the dangers of fabricated informant testimony, I propose requiring the recording of ‘first drafts’ of informant stories and documenting the full extent of promises made or assumed. Procedures should also be developed for independent prosecutorial review before trial in all cases that depend critically on informant testimony and for independent review of such cases after conviction when facially credible claims are made that would create a reasonable likelihood of innocence if substantiated.”
• Strange Hierarchy of Protections of the “New” Client Confidentiality, 8 St. John’s J.L. Comm. 439 (1994)
  “This Article analyzes these changes in the context of a confidentiality ‘battleground,’ which has pitted lawyers against society through the rather strange hierarchy of protections which have evolved under the Model Rules. The Article presents a series of hypotheticals which are based, in whole or in part, on recent cases. Through analysis of these hypotheticals, the history of protections afforded to clients, lawyers, courts, and the public through the American Bar Association Canons of Ethics (the ‘ABA Canons’), 12 the American Bar Association’s Model Code of Professional Responsibility (the ‘ABA Code’), 13 the Model Rules, 14 as well as the ethical opinions and court decisions interpreting these professional conduct provisions will be revealed. 15 In conclusion, this Article proposes a rethinking of client confidentiality. A remodeled design of client confidentiality is suggested which would, if adopted, afford society and individuals greater protections. The proposed protections would be consistent with those given to clients, lawyers, and the courts, and yet they would not substantially change the adversary system as we know it.”
• Symposium: Executing the Wrong Person, 29 Loy. L.A. L. Rev. 1543-1797 (1996)
  “In the Symposium that follows these introductory comments, the editors of the Loyola of Los Angeles Law Review have assembled an impressive company of thinkers to wrestle with a variation on a well-known hypothetical: What ought a lawyer, a clergyman, and a psychotherapist do when confronted with the knowledge that a stranger is about to be executed for a crime committed by a person with whom each has a professional relationship?”
  • Professionals’ Ethical Dilemmas: Symposium Problem the Wrong Man Is About To Be Executed for a Crime He Did Not Commit, 29 Loy. L.A. L. Rev. 1543
  • Introduction: What Ought To Be Done – What Can Be Done – When the Wrong Person Is in Jail or About To Be Executed? An Invitation To a Multi-Disciplined Inquiry, And a Detour About Law School Pedagogy, 29 Loy. L.A. L. Rev. 1547
  • Excerpts from an Original Screenplay by Jan C. Costello, L.A. Law School, 29 Loy. L.A. L. Rev. 1585
  • To Betray Once? To Betray Twice?: Reflections On Confidentiality, A Guilty Client, An Innocent Condemned Man, And An Ethics-Seeking Defense Counsel, 29 Loy. L.A. L. Rev. 1611
  • Life-Saving Exception to Confidentiality: Restating Law Without the Was, the Will Be, Or the Ought To Be, 29 Loy. L.A. L. Rev. 1631
  • Damned and Damnable: A Lawyer’s Moral Duties With Life on the Line, 29 Loy. L.A. L. Rev. 1641
  • The Hypothetical as a Tool for Teaching the Lawyer’s Duty of Confidentiality, 29 Loy. L.A. L. Rev. 1659
  • Ethical Fairy Tale, 29 Loy. L.A. L. Rev. 1685
  • Confession of Murder: The Psychiatrist’s Dilemma, 29 Loy. L.A. L. Rev. 1691
  • “I’ll Give You Shelter From the Storm”: Privilege, Confidentiality, and Confessions of Crime, 29 Loy. L.A. L. Rev. 1699
  • Ethical Obligations for the Psychiatrist: Confidentiality, Privilege, and Privacy in Psychiatric Treatment, 29 Loy. L.A. L. Rev. 1709
  • Case of the Confidential Confession: Psychiatry, 29 Loy. L.A. L. Rev. 1717
  • Muslim Perspective on the Clergy-Penitent Privilege, 29 Loy. L.A. L. Rev. 1723
  • Confidentiality Obligation of Clergy From the Perspective of Roman Catholic Priests, 29 Loy. L.A. L. Rev. 1733
  • Sacred Secrets or Sanctimonious Silence, 29 Loy. L.A. L. Rev. 1747
  • Resolving The Conflict Between the Ethical Values of Confidentiality and Saving a Life: A Jewish View, 29 Loy. L.A. L. Rev. 1761
  • To Save a Life: Why a Rabbi and a Jewish Lawyer Must Disclose a Client Confidence, 29 Loy. L.A. L. Rev. 1771
  • Between Scylla and Charybdis: When None of the Choices Are Good, 29 Loy. L.A. L. Rev. 1781
  • When Silence Screams, 29 Loy. L.A. L. Rev. 1785

• When the Law Preserves Injustice: Issues Raised by a Wrongful Incarceration Exception to Attorney-Client Confidentiality, Journal of Criminal Law and Criminology, 2010 (forthcoming)
  “In the past few years, two wrongful incarceration cases have garnered especially heightened media attention. Both cases involved lawyers who knew all about the wrongful incarcerations of innocent men but were barred from disclosing exonerating information because of confidentiality restraints with their own clients. The following Article is an attempt to frame some of the concerns presented by a possible wrongful incarceration exception to attorney-client confidentiality. The Article begins in Part One by providing background on the judicial system’s requirements of a lawyer, including attorneys’ ultimate duty to their clients and their obligations under attorney-client confidentiality. Part Two proceeds with an analysis of the wrongful incarceration exception with six subparts. Part A discusses the possible chilling effect of a new exception on attorney-client discussions. Part B considers the proposition that the substantial bodily harm and reasonably certain death exception already captures an exception for wrongful incarcerations. Part C, D, E and F raise some practical issues with a wrongful incarceration exception, including, respectively, the length of conviction that would be required for an attorney to disclose information, the proper timing procedurally for an attorney to come forward, the possibility that a wrongful incarceration exception could violate a client’s constitutional rights against self-incrimination and for effective counsel, and finally, the difference in attorney behavior that could be expected to result from a wrongful incarceration exception. The Article concludes by suggesting a proposal for a new exception that would best solve the issues raised by a wrongful incarceration exception to attorney-client confidentiality.”

1 Sir Arthur Conan Doyle, Six Notable Adventures of Sherlock Holmes 486 (Platt & Munk Publishers: NY 1960).