Legal Ethics Gone Awry
Adam Liptak reports on the bizarre case of a lawyer who ratted out a then-dead former client in order to free an innocent man from jail and is now facing legal censure.
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.
I understand the importance of attorney-client privilege and respect that it requires making some hard choices that have bad individual outcomes in order to preserve a greater good.
A lawyer’s broad duty to keep clients’ confidences is the bedrock on which the justice system is built, [most legal experts] argue. If clients did not feel free to speak candidly, their lawyers could not represent them effectively. And making exceptions risks eroding the trust between clients and their lawyers in future cases. Experts in legal ethics are quick to point out that the various players in the adversary system have assigned roles and that lawyers generally must tend to a limited one. “Lawyers are not undercover informants,” said Stephen Gillers, who teaches legal ethics at New York University. Indeed, said Steven Lubet, who teaches legal ethics at Northwestern, few clients would confess to their lawyers if they knew the lawyers might some day choose to disclose that information.
That’s fair enough. And, one could argue, society is no worse off since, without the existence of the confidence conferred by privilege, we wouldn’t have had the information to begin with.
But, at a minimum, privilege should die with the client. My understanding is that doctor-patient confidentiality mostly does, as does the bond between reporter and source. Surely, no real harm would come from the same standard holding for attorney-client privilege, at least with respect to these sort of cases.
Via Jonathan Adler who, interestingly, expresses no opinion on the matter.