Tuesday, March 6, 2012

The Injustice in the State's Codes of Ethics Guiding Attorneys' Conduct

Today in my Legal Ethics class, we watched this video on a man named Alton Logan who was wrongfully accused and wrongfully imprisoned for 26 years for a murder he did not commit.  And the reason he stayed imprisoned was because the attorneys representing the true murderer, according to the code of ethics governing attorneys of the state they resided in, gave them attorney/client privilege.  The man these attorneys represented confessed to them that he was the one who committed the murder and not Alton Logan.  Yet according to these two attorneys, who's actions I feel are unconscionable and cannot condone, they could not leak this info or tell this info to anyone given the attorney/client privilege established in the code of ethics.  And they claim that even if they had come forward and disclosed this evidence so as to prevent Alton Logan from being wrongfully convicted and imprisoned, the evidence would not be submitted before the court because it was a breach of attorney/client privilege.  To this I believe they are wrong, for perhaps if the law enforcement and prosecution had been made known of this info and searched for evidence that the other man committed the murder instead of Alton Brown, then some valid evidence could have been found that could have cleared Mr. Logan's name.  The two attorneys claim they would have come forward with the info if Alton Logan had been sentenced to death, but since he wasn't, they decided they couldn't.  

I believe this is an instance where we have bad law to blame, not just these two attorneys and what I see to be their protection of their careers.  I believe, because of this one instance, that we need to rewrite the code of ethics for every state so that this is another exception to the code of ethics regarding attorney/client privileges.  There are already exceptions to this privilege, which privilege is often used interchangeably with the rule of confidentiality, found in Rule 1.6 of Chapter 13: Rules of Professional Conduct, under the Utah Judicial Council Rules of Judicial Administration, found on www.utahbar.org at least in the state of Utah.

The text reads as follows:

"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:
(b)(1) to prevent reasonably certain death or substantial bodily harm;
(b)(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of which the client has used the lawyer’s services;
(b)(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud and in furtherance of which the client has used the lawyer’s services;
(b)(4) to secure legal advice about the lawyer’s compliance with these Rules;
(b)(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or
(b)(6) to comply with other law or a court order."

Thus, there are lawful exceptions to being able to disclose information that would otherwise be protected under the attorney/client privilege.  Why is the instance of an innocent person being wrongfully convicted for a crime he/she did not commit and being wrongfully incarcerated, not one of these exceptions?  IT VERY BLOODY WELL SHOULD BE!  If an attorney has a client that confesses to a crime committed, and an innocent person is being tried for the committing of that crime in his/her stead, then I believe the attorney not only should be allowed to disclose this otherwise confidential info that is the confession to the crime, but that they have a moral obligation to do so.  I even think it should be required by law that attorney's disclose such information so as to protect the innocent from false accusation, trial, conviction, and punishment. This is a case of poorly written code, and should be reversed as soon as possible so that no other innocent men or women be wrongfully accused, tried, and convicted of a crime he/she did not commit and imprisoned for that wrongful conviction.  

I hereby call on the Utah courts, given their constitutional grant to create the judicial codes and Rules of Professional Conduct, to revise this section of the Utah Code of Professional Conduct, Rule 1.6 in particular, to include as an exception to the rule of confidentiality between an attorney and his/her client, along with the other already mentioned exceptions, the following:
"A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

-To prevent an innocent person from being wrongfully accused, tried, convicted, or punished by law, by incarceration or any other criminal or civil punishment, including fine, for a crime or civil infraction he/she did not commit."

This or something to this effect should be included, in the very least, as an exception to the rules governing attorney/client privilege, also known as the Rules of Confidentiality between attorneys and clients.  And not only should it be included as an exception, but I believe it should be a lawful requirement for attorneys to disclose such otherwise confidential information in such an incident of the innocent being wrongfully convicted and punished.


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