Monday, May 05, 2008


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!


Anonymous said...

Why didn't the lawyer ask his client for a release upon the client's death?

Anonymous said...

The Rules state that a Lawyer Must Reveal Information when he reasonably believes it's necessary to prevent a death or substantial bodily harm to another. Life in prison is de facto substantial bodily harm to another. I've been to death row. I've seen and sat in ol' sparky. Death would be an easier way out than life in prison. Making a distinction between death and life in prison for a "bright line rule" on whether to disclose is ridiculous. This lawyer did the right thing.

Anonymous said...

While he appears to be well meaning, I disagree with 8:32am. If you allow lawyers to spill the beans to get someone else out of jail, the attorney-client privilege would quickly become meaningless.

I think that life and death situations and the sort of post client death situation discussed above are as much of an erosion of the attorney-client privilege as could be allowed before effectively losing the privilege all together.

Rumpole said...

I have no problem with revealing a dead client's secrets to serve the ends of justice. Lets those high-minded ethics professors spend a week at Starke as a prisoner and then opine that incarceration is different from the death penalty. Incarceration for an innocent person is a daily slow death.

And quite frankly depending on the circumstances, I would do everything in my power to convince my living client to reveal the confidence in some manner to protect the innocent.

It's easy to stand behind a principle until that principle throws away the life of a human being. These are problems that are solvable. How about a scenario allowing the person with the secret to meet with a judge in camera- and if that judge is satisfied, the information obtained is used to exonerate the person in jail and the Judge becomes bound to keep the secret as well as the attorney? There are many ways to solve these issues, but turning a blind eye and letting an innocent person waste away in prison is NEVER one of them.

Anonymous said...

As Justice Potter Stewart stated, “Any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice.” Hawkins v. United States, 358 U.S. 74, 81 (1958) (Stewart, J., concurring).

Well said, Justice Potter Stewart.
Further, who is anybody kidding about client/lawyer confidentiality??
The Patriot Act made that concept obsolete. IF a RULE, such as The Patriot Act allows breach of attorney/client privilege for governmental interests, isn't the interests of justice, more important than certain governmental actors??? If the rule of attorney/client privilege is not ENFORCED across the board, it is ARBITRARY AND CAPRICIOUS.
If it is arbitrary and capricious, it is against DUE PROCESS, and if it denies DUE PROCESS, it is not going to pass the constitutional restrictions that is the highest law of the land.

Anonymous said...

Once the client is dead there is no prejudice to that client in revealing a communication that will spare another person from unjust punishment.