Ethical Conundrum

[BryceC]

It is quite possible that the rule saved his life.

And I'm saying, no it didn't.

I'm 26 years old. If I was in prison for 26 years, I'd be 52. Undoubtedly I would get divorced from my wife. I'd be too old to work a lot of jobs, and I'd be virtually unemployable anyway, without a penny to my name, any friends and family would either be dead or had written me off as a convicted murderer. Plus the fact that 26 years of hard prison time would probably F up any reasonable human being anyway.

I wouldn't give a crap if my life were saved or not. I would rather die that face that scenario.

Regardless, I'm happy for those lawyers that they can sleep at night. Because I wouldn't have a wink for the 26 years the guy was in prison.

 

[jbhtexas]

If you can figure out a way to prevent that it would be great. In the meantime though, does it not make sense to adopt rules and procedures that reduce the error rate, even if those rules might have some adverse consequences in a few individual cases?

I already gave you a solution that would have prevented the problem in this case.

What rules are we adopting to reduce the error rate? The ethical conduct rule currently in place prevents a lawyer from presenting evidence (i.e. a confession) that would prevent an innocent person from going to jail. How can a rule like that reduce the rate of innocent people being erroneously sent to jail?

 

[Seth]

IMO, they needed to 'man' up and find a way to prove who did it without giving up their confidentiality.

-keep.

You're missing the point here I think. Disclosing a client's confidential information in an indirect way is just as bad as doing it directly. If an attorney could shirk his professional responsibility by submitting an anonymous tip, then clients would catch on pretty quickly and quit disclosing everything to their attorneys. Your proposed solution to this situation would be at best a short-term band-aid.

The purpose of the rule is to foster open lines of communication between the attorney and the client. These open lines of communication are necessary for the attorney to represent the client. Without open communication, the attorney can't evaluate the situation and advise the client in the best way possible.

Finally, you've also got to realize that not only does an attorney have a duty to keep client information confidential, but attorneys have a duty to zealously represent their clients. Imagine how ineffective our system would be if clients were constantly worried that their attorneys were going to turn on them, especially in the context of court-appointed defense attorneys. Without these requirements, it would become incredibly difficult for an attorney to best advise and represent his/her clients.

 

[Phaedrus]

If attorneys are bound to report knowledge of criminal behavior, the client would have a consistent expectation of what he could, or could not say to his attorney.

And, these "rules" are not "law". I truly think the ABA has grown too big for their britches, especially in this case.

Attorneys should not be allowed to treat actual knowledge of criminal acts as privileged information. Period. If somehow, this makes it difficult for one who commits criminal acts to build a defense, so what?

 

[jbhtexas]

The purpose of the rule is to foster open lines of communication between the attorney and the client. These open lines of communication are necessary for the attorney to represent the client. Without open communication, the attorney can't evaluate the situation and advise the client in the best way possible.

It should be the client's responsibility to disclose the truth to the lawyer. If the client wants to jeopardize his defense by lying to his lawyer, then leave that up to client to take this risk. I see no possible way to justify sending an innocent man to prison just to give a criminal a warm-fuzzy about talking to his lawyer.

 

[BryceC]

And they knew that because their client, Andrew Wilson, who they were defending for killing two policemen, confessed to them that he had also killed the security guard at McDonald's - the crime Logan was charged with committing.

"We got information that Wilson was the guy and not Alton Logan. So we went over to the jail immediately almost and said, 'Is that true? Was that you?' And he said, 'Yep it was me,'" Kunz recalled.

"He just about hugged himself and smiled. I mean he was kind of gleeful about it. It was a very strange response," Kunz said, recalling how Wilson had reacted.

"How did you interpret that response?" Simon asked.

"That it was true and that he was tickled pink," Kunz said.

"He was pleased that the wrong guy had been charged. It was like a game and he'd gotten away with something. But there was just no doubt whatsoever that it was true. I mean I said, 'It was you with the shotgun-you killed the guy?' And he said, 'Yes,' and then he giggled," Coventry added.

I'm so happy our legal system was able to protect this guy while someone else lost whatever semblance of life he had.

I understand the situation is difficult. I guess the reason why this upsets me is that nothing will be done about it. That poor bastard will just be written off as another casualty of the way we do things. Sorry buddy, we know you're innocent. But you still don't pass go until your case can go through the courts again.

I'm glad criminals like Wilson are able to trust their lawyers while millions of people who don't break the law feel like they have no reason to.

 

[Kyle]

I already gave you a solution that would have prevented the problem in this case.

What rules are we adopting to reduce the error rate? The ethical conduct rule currently in place prevents a lawyer from presenting evidence (i.e. a confession) that would prevent an innocent person from going to jail. How can a rule like that reduce the rate of innocent people being erroneously sent to jail?

Perhaps your solution would work and be sufficient. However, for the sake of argument assume the following:

1. Adherence to the current rule results in greater disclosure by clients than there would be if your proposed change were adopted.

2. That greater disclosure allows a greater number of lawyers to convince their clients to reveal information that could exhonorate someone else than would be the case if your change was adopted.

3. Therefore, overall, more innocent people are kept out of jail by the current rule than would be the case if your revision was implemented.

If those three things are true, I would contend that adherence to the current rule is the proper ethical choice for the profession. Would you agree with my intuition in that regard?

It is a question of fact as to whether those three things I put forth are actually the case. I'm not certain that they are true, but I also definitely cannot say that they are not.

 

[Kyle]

And, these "rules" are not "law". I truly think the ABA has grown too big for their britches, especially in this case.

In what way are they not "law"? They are basically law to the same extent that any other licensing requirements are. The legislature has the authority to change the rules at any time if they felt like it, although they (wisely imo) tend to defer to the judicial branch for making the rules if I'm not mistaken. Iowa's rules were not put in place by the ABA. Iowa, like most states, just used most of the model rules promulgated by the ABA. You can find Iowa's rules linked off of the legislature's webpage.
Iowa General Assembly - Home Page
Click on Iowa Law and then Iowa Court Rules and do an advanced search (or open the presumably huge pdf). The rules I'm referencing are in Chapter 32.

 

[jbhtexas]

1. Adherence to the current rule results in greater disclosure by clients than there would be if your proposed change were adopted.

2. That greater disclosure allows a greater number of lawyers to convince their clients to reveal information that could exhonorate someone else than would be the case if your change was adopted.

3. Therefore, overall, more innocent people are kept out of jail by the current rule than would be the case if your revision was implemented.

If those three things are true, I would contend that adherence to the current rule is the proper ethical choice for the profession. Would you agree with my intuition in that regard?

I do not agree. Your argument fails at #2. The current ethical code forbids the lawyer from releasing the client information to the court for the purpose of exhonorating an innocent third party. While the lawyer might get more info from his client, he may not be able to use the information to insure that justice is carried out for a third party.

The same ethical code the supposedly facilitates the free flow of information between client and lawyer also prevents said information from being used to exhonorate innocent third parties. Therefore, the current rule does not help keep innocent people out of jail, and as such, is not the proper ethical choice for the profession.

 

[Kyle]

1. Adherence to the current rule results in greater disclosure by clients than there would be if your proposed change were adopted.

2. That greater disclosure allows a greater number of lawyers to convince their clients to reveal information that could exhonorate someone else than would be the case if your change was adopted.

3. Therefore, overall, more innocent people are kept out of jail by the current rule than would be the case if your revision was implemented.

If those three things are true, I would contend that adherence to the current rule is the proper ethical choice for the profession. Would you agree with my intuition in that regard?

I do not agree. Your argument fails at #2. The current ethical code forbids the lawyer from releasing the client information to the court for the purpose of exhonorating an innocent third party. While the lawyer might get more info from his client, he may not be able to use the information to insure that justice is carried out for a third party.

The same ethical code the supposedly facilitates the free flow of information between client and lawyer also prevents said information from being used to exhonorate innocent third parties. Therefore, the current rule does not help keep innocent people out of jail, and as such, is not the proper ethical choice for the profession.

You don't play along with hypotheticals very well do you? :wink: Again, assuming for the sake of argument that all of those statements were true, would you agree with me?

I also think you are confused about what is required by the rules. The confidentiality privilege belongs to the client. If the lawyer can convince the client to give up that privilege then the lawyer can reveal whatever information the client authorizes them to. This can and is done in real life. Usually it would occur by the lawyer bargaining with the prosecutor's office for some sort of plea bargain or immunity.

 

[jbhtexas]

You don't play along with hypotheticals very well do you? :wink: Again, assuming for the sake of argument that all of those statements were true, would you agree with me?

If all those statements were true, I could probably agree with you. But they aren't true, at least #2 doesn't seem to work in reality as in your hypothetical, and I have serious doubts about the accuracy of #1. So, what is the point of your hypothetical?

I also think you are confused about what is required by the rules.

I won't dispute that I'm confused (and many other posters here wouldn't dispute that either). But, the bottom line is that a lawyer who may be in posession of information to exhonorate an innocent third party may be restricted by an ethical code from sharing that information with the court, all for the benefit a guilty person. Again, from my perspective, that's not justice.

 

[Kyle]

But, the bottom line is that a lawyer who may be in posession of information to exhonorate an innocent third party may be restricted by an ethical code from sharing that information with the court, all for the benefit a guilty person. Again, from my perspective, that's not justice.

I would agree with you that such a situation, when considered only in and of itself, almost certainly morally requires disclosure. I don't think too many people would argue with that.

The complication comes when you take a step back and try to evaluate the overall effect of adherence to the current rule vs a rule that would require or permit disclosure in such situations. I think the type of argument I made is one that would be made by a lot of people, and is not especially far fetched. In fact, there is a substantial likelihood that all three of statements I used are actually true. It is impossible to say for sure without some sort of evidence (which would be virtually impossible to collect). It is clear that you have great reservations with regards to the truth of those statements, but I don't think you can say with any certainty that they are incorrect. I'm quite certain that there are very intelligent people whose intuition would lead them to the opposite conclusion as yours.

The basic point I'm trying to make is that there is a very plausible and reasonable argument in favor of the rule that is in place. In my opinion, there is also a very reasonable argument from your perspective. But, it is definitely not clear which rule would produce better results. There is a lot of room for reasonable people to disagree. Given that, I would say it is quite unfair to label the profession, or even the lawyers in this case, as obviously immoral.

 

[jbhtexas]

The basic point I'm trying to make is that there is a very plausible and reasonable argument in favor of the rule that is in place. In my opinion, there is also a very reasonable argument from your perspective. But, it is definitely not clear which rule would produce better results. There is a lot of room for reasonable people to disagree.

And while we are disagreeing, innocent people go to jail.

So, it all boils down to this...the ABA has decided that it's best for our country that a criminal feels comfortable talking to his lawyer, even if this requires that an innocent person go to jail.

I'd love to put that up for a national vote...

 

[drmwevr08]

And while we are disagreeing, innocent people go to jail.

So, it all boils down to this...the ABA has decided that it's best for our country that a criminal feels comfortable talking to his lawyer, even if this requires that an innocent person go to jail.

I'd love to put that up for a national vote...

Maybe. Or maybe while we are talking, criminals are disclosing crimes to their lawyers, who are then in turn convincing the criminals to admit to the crimes to cut a deal for reasonable punishment and at the same time, freeing others being held or qestioned in those same crimes.

Once the a/c privilige goes away, these things stop being disclosed and the issue that is bothering you so much (the guy in jail for 26 years) stops happening because we never actually find out he is innocent.

 

[jbhtexas]

Maybe. Or maybe while we are talking, criminals are disclosing crimes to their lawyers, who are then in turn convincing the criminals to admit to the crimes to cut a deal for reasonable punishment and at the same time, freeing others being held or qestioned in those same crimes.

Like I said before, it's in the criminal's best interest to give full, truthful disclosure to his lawyer. We shouldn't have to coddle someone to do what common sense dictates, especially when such coddling might cause an innocent person to go to jail.

Once the a/c privilige goes away, these things stop being disclosed and the issue that is bothering you so much (the guy in jail for 26 years) stops happening because we never actually find out he is innocent.

And you base this statement on what?

 

[Kyle]

Like I said before, it's in the criminal's best interest to give full, truthful disclosure to his lawyer.

Not if his lawyer can turn around and reveal those disclosures to the world.

 

[jbhtexas]

Not if his lawyer can turn around and reveal those disclosures to the world.

Under certain conditions, his lawyer can already do that. I'm just asking for one more condition to be added to that list.

 

[tidbit]

This has been a very interesting discussion on an important topic. A possable solution simply might be to have a judge appointed who would be an advocate for the lawyers, one who would also keep confidential information given to him but on presentation of an innoent victum evidence could present that to other parties to take necessary action.

 

[2Xclone]

Couldn't the lawyers have done something to at least the the case dismissed? It would seem reasonable that the lawyers could say something about knowing the person charged is innocent without revealing the source...but that's probably the problem...is would seem reasonable:no:

 

[2Xclone]

The CBS link for more info on this story:
26-Year Secret Kept Innocent Man In Prison, Lawyers Tell 60 Minutes They Were Legally Bound From Revealing Secret - CBS News
But, but I lose more sleep if I put Andrew Wilson’s neck in the in the noose. In terms of my conscience, my conscience is that I did the right thing"

:chatterbox:

That make me feel much better:wacko: