Patterico's Pontifications

11/24/2007

Another North Carolina Legal Ethics Question

Filed under: Law — DRJ @ 9:08 pm



[Guest post by DRJ]

Legal ethics is a difficult topic. For one thing, not many people believe lawyers have ethics. (They do. Really.) For another, the application of ethics rules sometimes results in outcomes that don’t seem to make sense.

The Duke lacrosse/Nifong case is a good example of a case that made people wonder about legal ethics. Now there’s another North Carolina case that deals with ethical questions. It involves a lawyer named Staples Hughes, who like Nifong is a NC lawyer, but he’s an appellate defender rather than a prosecutor:

“Lawyer Staples Hughes was trying to do the right thing when he disclosed information that could help prove a man innocent of murder. Now it may cost him his law license.

Hughes, the state’s appellate defender, disclosed earlier this year that his client, a co-defendant in the murder, had confessed 20 years earlier that he alone killed Roland and Lisa Matthews in Fayetteville.

After his client, Jerry Cashwell, died, Hughes spoke up. The confession, coupled with challenges to how bullet evidence was analyzed, could get a new trial for Lee Wayne Hunt, who was convicted of the slayings 21 years ago and sentenced to life in prison.

It also puts Hughes in a fight for his career. During a hearing to seek a new trial for Hunt, a Cumberland County Superior Court judge said he would file a complaint with the N.C. State Bar over Hughes’ testimony about the confession. As Cashwell’s attorney, Hughes was bound by attorney-client privilege to keep the confession secret. But Hughes believed that his duty to Cashwell died with his client.

Judge Jack Thompson rejected Hughes’ testimony, and Hunt’s bid for freedom. Hughes was later notified that a bar grievance had been filed against him.

“It crossed my mind a thousand times that somebody might report me to the bar,” Hughes said. “I’m sure he thought he was doing what he thought was right, and I thought I was doing what was right under the circumstances. It was a sobering moment.”

The underlying case involved multiple defendants, all with criminal records:

“Hunt had been a notorious drug dealer in Fayetteville but maintained from the start that he had not murdered the Matthewses. In March 1984, the couple were found shot and stabbed to death in their home on a rural road in Cumberland County. About one year later, Hunt, Cashwell and Kenneth Wayne West were arrested and charged with the murders.

Hughes interviewed Cashwell at the Cumberland jail in the weeks after the arrest. That’s when Cashwell confessed that he was the sole killer. Hughes, a young public defender assigned to the case, was stunned, but he couldn’t tell anyone.

“All of a sudden, time just stands still in a way,” Hughes said. “I don’t know whether ethical behavior is always the same as being a moral hero. Maybe if I were some moral hero, I would have told. But it was very clear-cut to me that the only ethical course was that it was not in my client’s interest to reveal it, and of course I did not.”

Cashwell was tried first, convicted of the double murder and sentenced to two life terms. Hunt was tried later and convicted in October 1986. He also received two life sentences.”

Hughes recalled the way he felt as Hunt was tried and convicted:

“The only physical evidence connecting Hunt to the crime was a bullet lead analysis conducted by the FBI. It appeared to show that crime-scene bullets matched those in a box that Hunt owned. Scientists now say the bullet lead analysis that the prosecutor relied on is misleading and should not be used as evidence.

The remaining evidence against him was from Hunt’s co-defendants: drug dealers who had agreed to testify against Hunt in exchange for immunity or reduced prison time for their roles in the crime.

“It was awful, because I know what’s going on in the courtroom down the hall from my office is a bunch of fabrications,” Hughes said, recalling his reaction to Hunt’s trial years ago.”

The ABA’s website summarizes the basic ethics rules for disclosure of past crimes which require confidences to be maintained even after the client dies:

“Confidential information is to remain confidential throughout the representation, and thereafter, even after the death of the client. Along with the basic principle of maintaining the privacy of client information, a key precept of ethically maintaining confidentiality is that the information not be used to the detriment of the client, but rather only to advance the client’s interests.”

There are exceptions to the rule against disclosure of confidential information but they vary from state to state. In general, there is an exception to “permit disclosure that will prevent death or substantial bodily injury” or to “rectify the consequences of a crime or fraud that injures the financial or property interests of another.” In addition:

“Other exceptions to the confidentiality rule include disclosure that is authorized by law, disclosure impliedly authorized by the client in order to effectuate the representation, disclosure for the lawyer to seek legal ethics advice and disclosure by the lawyer in self-defense against a claim by the client.”

None of these exceptions helped Hughes out of his ethical dilemma. Fast forward to 2002, when Hunt had been incarcerated for 16 years and Cashwell committed suicide in prison:

“With his client dead, Hughes said, he immediately thought of revealing Cashwell’s secret. But he decided to wait, knowing that the Supreme Court was considering a crucial ruling on an unrelated case in Wake County that explored whether a dead person’s confidentiality trumped the search for justice.

In 2003, the Supreme Court said that a judge can force a lawyer to reveal confidential statements from a dead client. The decision helped crack the arsenic poisoning case of Eric Miller, leading to his wife’s arrest and conviction.

Bolstered by that decision, Hughes eventually decided he would reveal his dead client’s confession. In 2004, Hughes called Rich Rosen, who is known for handling cases for prisoners who insist they are wrongly convicted, and said he had evidence that could help prove Hunt’s innocence.”

Hunt filed a motion for new trial with Rosen’s assistance and Hughes’ testimony. The trial and appeals courts denied Hunt’s motion and the case is apparently pending appeal to the NC Supreme Court. In the meantime, Hughes is fighting to retain his bar license before the NC bar association, and the result is unclear:

“Hughes’ case represents the larger ethical dilemma many lawyers face, said Jim Coleman, a professor at Duke University Law School. There is no clear right or wrong, he said.

“On one hand, you have the attorney-client privilege and the value it has because it protects the client,” Coleman said. “And on the other hand, you have the question about justice, and the fact that you have information that can prevent the miscarriage of justice.”

Those who followed the Duke lacrosse case may recognize Prof. Coleman’s name as one of the few Duke professors who objected to the presumption of guilt afforded the lacrosse players. In a way, both cases illustrate that the law may seem concrete but applying it can be a delicate balancing act.

— DRJ

27 Responses to “Another North Carolina Legal Ethics Question”

  1. He should have spoken up 20 years ago. Letting an innocent man go to prison is despicable. He should have withdrawn from representation of Cashwell and offered himself as a witness in Hunt’s case. There is no Sixth Amendment issue if the revelation of the privileged information is not used against the client himself. I also believe that it falls under the crime/fraud exception.

    nk (09a321)

  2. Legal ethics is indeed a subtle subject. Ironically, the courts that try cases involving alleged ethical infractions are the most unsophisticated in the system.

    Stephen R. Diamond (4890af)

  3. Was the lawyer’s client one of the co-defendants who testified against the wrongly convicted man? One presumes not, or the lawyer would have knowingly suborned perjury, and this current action makes it seem unlikely that he would do that.

    At any rate, I think that being wrongfully convicted and sent to prison would constitute “substantial bodily injury,” which would bring the disclosure within permissible bounds. The judge who referred him to the bar should be ashamed of himself. The client is dead, and an innocent man is in prison for a crime which he did not convict. If any referral is justified, it is for waiting too long to make the disclosure, not for making it at all.

    PatHMV (0e077d)

  4. It is troubling that he waited so long. I also wonder why he didn’t seek an anonymous ethics opinion from the Bar (if available) or the ABA.

    DRJ (973069)

  5. PatHMV,

    I think Cashwell testified against Hunt. It’s not entirely clear but the article listed 3 defendants: Hunt, Cashwell, and Kenneth Wayne West. Later in the article, it states the”remaining evidence against [Hunt] was from Hunt’s co-defendants,” presumably Cashwell and West.

    The article says Hughes knew the evidence against Hunt was a fabrication so it’s hard to understand how Hughes could stand by and allow testimony he knew was a fraud on the court.

    However, we don’t know what the North Carolina ethics rules provided at that time. It may be that there wasn’t a fraud exception. Or perhaps Hughes wasn’t as certain then that Cashwell was telling the truth as he is now.

    DRJ (973069)

  6. An appellate defender is a state employee. After twenty years his state pension has vested. So now he gets an attack of conscience and the opportunity to seem a hero. (Sneer)

    nk (09a321)

  7. There are a number of legal questions here, but no serious ethical ones. Just because we refer to something called “legal ethics” doesn’t mean it has anything more to do with ethics than “professional wrestling” has to do with wrestling. The extreme amount of lawyer-client confidntiality we permit and enforce is, according to my sense of ethics, extremely unethical.

    Now I know lawyers will respond that no alternative is possible that won’t cause the end of the free world, but that’s a crock. I wish lawyers would stop lecturing people, and start engaging seriously with the issues.

    LTEC (be0691)

  8. If Hughes was a young public defender at the time he was representing Cashwell, my guess is he was too green to seek practical solutions out of the ethical box he believed himself to be in at the time. Something unclear from the above is whether any appelate actions on behalf of Cashwell were underway before, during or after Hunt’s conviction, which might have had a role in Hughes’ disclosures.

    I agree with LTEC, though, that there is usually a practical way out of situation. Then again, I’m not a lawyer, I’ve just spent time around them.

    daleyrocks (906622)

  9. I have to admit that a lot of us looking at the law profession from the outside view lawyerly “ethics” as somewhat self-serving. Lawyers make money by getting criminals off (in general, not in this particular case), so they have an interest in having ethical rules that will make criminals hire them.

    I propose that in a genuinely ethical system both sides on the court would be ethically bound to seek a truthful verdict, not just the prosecutor. This doesn’t just apply to attorney/client privilege but to the course of a trial –a lawyer should not try to convince a jury of something that he personally believes to be false and that his client has told him is false, and this means that he should not try to raise “reasonable doubt” about something that he believes is true and that his client has told him is true. I care little for the argument that criminals cannot participate in their own defense if they can’t tell their lawyer the truth. Their goal is to get away with their crimes and there is nothing ethical about helping them do this.

    Of course, I don’t mean that all lawyers who follow the official ethics of their profession are wrong in doing so because there is also an ethical obligation to follow guidelines that we agreed to follow. I have sympathy for lawyers who find themselves awkwardly balancing between immoral professional ethics and genuine ethics.

    Doc Rampage (ebfd7a)

  10. “For another, the application of ethics rules sometimes results in outcomes that don’t seem to make sense.” indeed, one could argue that the application of rules doesnt make sense in the justice system itself. the problem IMO is the system is to hung up on its rules. the system doesnt have time for justice you see, they are to busy with their process and rules.

    james conrad (7cd809)

  11. There’s a reason lawyers and journalists are both becoming increasingly held in contempt, and self-serving “ethics” rules like this one and the rules that journalists participate in a criminal conspiracy are a big part of it.

    Skip (c69414)

  12. I remember an argument within the ABA some years back on attorney-client privilege. The decision (or discussion–can’t recall whether it was adopted or not) was that attorney-client privilege does not apply if the client hasn’t paid his attorney’s fees.

    That’s when I really stopped appreciating attorney ethics (even though individual attorney’s can be ethical).

    ManlyDad (d62cf6)

  13. The problem is not that lawyers don’t have ethics, it’s that legal ethics do not in the slightest resemble anything ethical. The ABA rule is typical. It protects lawyers at the cost of innocent persons. The privacy rights of a dead criminal are a wonderful excuse to avoid doing justice. And embarrassing attorneys. And Judges.

    The system protects the professions. There is no reason to leave legal ethics in the hands of the bar association any more than there is an excuse to leave medical ethics complaints in the hands of the medical profession. There will be no accountability in the legal realm until ethics are reviewed by people without a vested interest in the appearance of perfection.

    Ken Hahn (7742d5)

  14. Doesn’t one have to have standing to file an ethics complaint?

    I mean, wtf does the judge care?

    Can I just wander around court rooms filing ethics complaints?

    Scott Jacobs (a1de9d)

  15. Yikes. A lot of folks here seem to have either serious misconceptions of legal ethics in a criminal context, serious misconceptions about how the legal system works, or are seriously naive.

    Yes, it is a complicated topic, and to paraphrase, bad situations make bad ethics.

    But one of the easier ones: that a client doesn’t pay means that that client is breaking a contract, and can be considered to no longer be a client. (More complicated than that – there are duties to the court, etc.) To analogize, if you stop paying your roofing contractor halfway through a job, are they ethically bound to ensure you don’t suffer water damage? I believe the rule is that information under ACP before the termination of services is still under ACP, but information disclosed thereafter is not. Which is as it should be – otherwise, one would need to keep paying lawyers forever, and a retainer in perpetuity to not disclose information is called “blackmail” (in itself an interesting legal conundrum, but that’s a different topic).

    Anyway, some here propose a system that “seeks truth”, as opposed to our current system in which a defendant’s advocate seeks all legal means to defend against the state accuser. That turns our entire criminal justice system on its head. In order to do so, you’d have to redefine close to a 1000 years of an incrementalist system that led us here. I certainly don’t defend our system as perfect – those who “get off on a technicality” and those who rot in prison unjustifiably until vindicated are just rare, vivid examples of smaller injustices that happen as a matter of course. But to demand at ACP on the defense side goes away would simply tip the balance to an already extremely powerful state.

    fishbane (1f2790)

  16. Doc Rampage #9,

    An attorney can’t perpetrate a fraud on the court. Thus, s/he can’t let a client testify to something false or put on any evidence that proves something s/he knows is false. My guess is Cashwell didn’t testify in his own case, and I don’t see how Hughes could stop Hunt’s prosecutor from calling Cashwell to testify.

    We have to make choices in any system. The choice we’ve made is to protect confidences clients tell their lawyers. There are exceptions to this rule but this isn’t one of them. Of course, as the article points out, a North Carolina court in another case did expand the rule to permit an attorney to break a confidence after the client died. That’s why Hughes decided he had a legal basis to divulge Cashwell’s statements.

    This is one more example of how the law evolves – not solely because of judicial fiat but as a slow process to respond to public concerns for justice.

    DRJ (973069)

  17. James Conrad #10,

    We don’t have much choice, do we? The law is a rule-based system, not a pure equity-based system. We have this system because equity can be erratic depending on the consistency and wisdom of individual judges. America has many fine judges but I would rather trust our freedoms to a system of laws, not men.

    DRJ (973069)

  18. Manly Dad #12,

    I don’t know the rule for every jurisdiction but I think it’s widely-accepted that the only time attorney/client privilege is waived when a client doesn’t pay fees is in a lawsuit between the attorney and client over attorneys’ fees.

    DRJ (973069)

  19. Scott #14,

    The confidence was revealed in the judge’s presence so that makes it his job to report it.

    DRJ (973069)

  20. The failure was neither in the rules nor in the system. It was in the attorney to properly utilize them. He should have consulted with his supervisor. That is permitted because he is deemed co-counsel or even lead counsel. They should have gotten an opinion from the Bar Association. It has lawyers on staff to do precisely that. That is also an exception to the confidence/privilege rule. The third step should have been a motion for an in camera hearing with the judge trying Hunt’s case. One more exception established as a means to test confidentiality/privilege. The judge would then have decided if there was enough there to impinge on Hunt’s due process and broaden the inquiry by bringing in the prosecutor and Hunt’s attorney under a protective order which would have bound them to silence.

    nk (09a321)

  21. DRJ, #18 – and then only to the extent required to litigate the dispute over fees.

    SPQR (26be8b)

  22. SPQR,

    Yes, that’s true. Good clarification.

    DRJ (973069)

  23. But… The client is dead. What harm does this breach cause?

    Scott Jacobs (a1de9d)

  24. Here is my beef with the legal profession, and the legal system as a whole. This dominated Thanksgiving dinner, since Mom and Pops are both lawyers. Our system has become so adversarial that there is no longer any type of search for the truth. Each side is attempting to outgame their opponents. Discovery is an arduous process with answers that are often only barely relevant to the rogs, outside of name, address, and birthdate, and I have seen those objected to.

    The truth is no longer sought. Each sides version of the truth is presented, and in some cases, the actual truth is prevented via discovery rules, or rules of evidence. The civil justice system is even worse, and fortunately, we never went down that path.

    JD (33beff)

  25. “Legal Ethics.” Yeah, stand by and watch an innocent guy go to prison because of your “higher duty to principle.

    I disagree with DRJ’s statement. Lawyers don’t have ethics, they have what sociologists call “in-group morality” — like the Hells Angels. That’s why they look so ethical to one another, and so corrupt and despicable to the muggles.

    Look at the SC Supreme Court jiggling the bar exam to make up for a pol’s daughter not studying. The SC Bar was cool with that.

    How about the way that bar “courts” (in camera, of course) bend over backwards to avoid inconveniencing the most corrupt and incompetent lawyers?

    How about Yagman teaching “ethics” to lawyer larvae? How about Lynne Stewart explaining how to further your client’s criminal enterprise — for continuing-legal-ed credit? (Of course, if you take my definition of “legal ethics,” this kind of “instruction” is inevitable).

    I’d suggest these things are shameful, but yours is a profession as far beyond shame as it is beneath respect. Despite Hollyweird’s fascination with lawyers as heroes — talk about two professions that deserve each other. Sorry ’bout that.

    Kevin R.C. O'Brien (742f73)

  26. I see that the privilege goes winging away into the yonder when a client sues his attorney also.

    Nice.

    spongeworthy (45b30e)

  27. Kevin you do have a way with words! 🙂

    BTW how about this legal profession calling out those shining examples like Nancy Dis-Grace and Wendy McMouth-Murphy? What is it that responsible and respectable members of this club won’t stand up and call them the outright incompetent liars they are!

    Remember folks we USED to have a Justice system, it got jailed by lawyers, and replaced with a Legal system.

    TC (1cf350)


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