The Tale of the Defense Lawyer Who Knows an Innocent Person Is In Prison — And Doesn’t Say a Word About It
Eugene Volokh quotes a CBS story as follows:
Alton Logan doesn’t understand why two lawyers with proof he didn’t commit murder were legally prevented from helping him. They had their reasons: To save Logan, they would have had to break the cardinal rule of attorney-client privilege to reveal their own client had committed the crime. But Logan had 26 years in prison to try to understand why he was convicted for a crime he didn’t commit….
Lawyers Jamie Kunz and Dale Coventry were public defenders when their client, Andrew Wilson, admitted to them he had shot-gunned a security guard to death in a 1982 robbery. When a tip led to Logan’s arrest and he went to trial for the crime, the two lawyers were in a bind. They wanted to help Logan but legally couldn’t….
The lawyers did get permission from Wilson, to reveal upon his death his confession to the murder Logan was convicted for. Wilson died late last year and Coventry and Kunz came forward. Next Monday, a judge will hear evidence in a motion to grant Logan a new trial.
Volokh states the obvious when he calls this a “very troubling result” but says that the applicable ethical rules don’t allow disclosure. In a separate post, he says that, unlike the majority of his commenters, he doesn’t see violating those ethical rules to be the only ethical choice:
[S]urely it’s not so clear that people have an ethical duty to save another’s life at such great expense. My guess is that if you spent $10,000, you could likely save the life of some sick child in Africa; if you spent $50,000, I imagine this would be even likelier (and perhaps the number is actually a lot less). If you donated a kidney — which will expose you to a roughly 0.03% risk of death, and a slightly larger but still very small risk of complications — you could dramatically reduce a roughly 20% or more risk of death for someone on the kidney waiting list (since that’s how risky it is for him to be on long-term dialysis while he’s waiting for a new kidney). If you find someone who’s near the tail of the waiting list, you might reduce a still greater risk. Yet most of us wouldn’t say, I think, that it’s really your ethical obligation to run such a risk, or bear such a cost, to save a stranger’s life.
Likewise, I don’t think that it’s really your ethical obligation to lose what is likely hundreds of thousands of dollars in future income, by giving up a profession that you spent over a hundred thousand dollars to train for. You might deserve credit for making such a choice (assuming we conclude that the ethical rule you’re violating is indeed unsound). But that’s different from saying that you have an ethical duty to make that choice.
In that post, Eugene’s commenters slam him for allegedly valuing money over a man’s freedom. They also attack his hypothetical as inapplicable because only these lawyers could save the innocent man (well, the actual guilty party himself could have as well), whereas in his hypo, other people could donate the money or the kidney.
But what if they couldn’t? What if only your kidney could save the stranger? Do you have the ethical obligation to give it up?
My take: I’m glad I’m not a defense lawyer, required to follow ethical rules that might be in tension with the imperative of keeping innocent people out of jail. The ethical rules applicable to my profession are designed to be in harmony with that imperative, and that’s a good thing.
And I’d like to think I’d give up that kidney if I were the only person who could save someone — and that I’d give up my job as a defense attorney to save a man’s life from being ruined in prison. After all, it’s not like your career would be ruined — just your career as a defense attorney.
You could still be a prosecutor.
UPDATE: Commenter nk thinks that breaching the ethical duty might get the lawyer disbarred. I don’t think it would, but the possibility is a valid point to consider.
UPDATE x2: DRJ has a good observation: “I wonder if people would feel the same animosity if the person maintaining the confidence were a priest who had been told the secret during confession.”