An amazingly horrific story was on 60 Minutes tonight. Here’s the summary:

Alton Logan was convicted of killing a security guard at a McDonald’s in Chicago in 1982. Police arrested him after a tip and got three eyewitnesses to identify him. Logan, his mother and brother all testified he was at home asleep when the murder occurred. But a jury found him guilty of first degree murder.

Now new evidence reveals that Logan did not commit that murder. But as correspondent Bob Simon reports, the evidence was not new to two attorneys, who knew it all along but say they couldn’t speak out until now.

Attorneys Dale Coventry and Jamie Kunz knew … [Logan] was innocent. 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.

Link.

So the attorneys felt bound by the duty of confidentiality to their client and sat idly by while an innocent man was first convicted of murder — he was spared the death penalty by a 10-2 vote — then locked up for 26 years (maybe longer, he’s not out yet). They claim they would have been able to act if he had been given the death penalty but they were otherwise obligated to abide by their client’s wishes. Here is the ethical rule they say bound them; Rule 1.6 of the Illinois Rules of Professional Conduct:

RULE 1.6. Confidentiality of Information

(a) Except when required under Rule 1.6(b) or permitted under Rule 1.6(c), a lawyer shall not, during or after termination of the professional relationship with the client, use or reveal a confidence or secret of the client known to the lawyer unless the client consents after disclosure.

(b) A lawyer shall reveal information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm.

(c) A lawyer may use or reveal:

(1) confidences or secrets when permitted under these Rules or required by law or court order;

(2) the intention of a client to commit a crime in circumstances other than those enumerated in Rule 1.6(b); or

(3) confidences or secrets necessary to establish or collect the lawyer’s fee or to defend the lawyer or the lawyer’s employees or associates against an accusation of wrongful conduct.

This is what attorneys refer to as an “ethical dilemma” and normal people translate as “fucking bullshit.” The notion that there is a rule prohibiting these “Officers of the Court” from using information in their possession to spare a man the loss of 26 years of his life all because the actual criminal told them the facts is asinine. To then call that rule “ethical” is to heap insult upon injury. There is nothing remotely “ethical” about it.

Take a look at that “ethical” rule again. Although the secret or confidence is considered so important that it can’t be divulged — even anonymously — to save another person’s life it can be divulged if this jackass client of theirs had failed to pay his bill. Here the Defendant was indigent so the situation presumably couldn’t apply but that’s not the point. Even the statement that they could have violated the confidence if he was given the death penalty is wrong. That situation does not fit the exception as it would not have been the client threatening to “[commit] an act that would result in death…”.

Law students and ethics professors will debate and discuss this rule ad nauseum and inevitably reach the learned conclusion that the Rule, for better or worse, is right. But that is viewing the rule from the rule’s perspective, in the abstract. In this instance the rule was wrong. Even if it meant violating the Rule (and risking potential disbarment), these attorneys should have divulged this fact. I understand this would not be the case in every circumstance but the precepts behind the death or bodily harm exception should permit or allow for some action on their part. If they don’t then morals should have stepped in and filled the gap. If your profession refuses you the right to help this man, maybe your profession is in need of some change.

The silliest aspect is that, in this instance, no one benefited from this rule. An innocent man was convicted and a guilty one went free. Society was at risk. It didn’t “enhance a person’s willingness to confide in their attorney,” it enhanced a guilty persons’ willingness to enjoy a snide joke with his counsel (the piece indicated the actual killer thought it was funny). Should they be allowed to use that information to his disadvantage? No. Should they be allowed to use that information to save the innocent man’s life? Yes. There are numerous double-blind mechanisms that could have been employed to ensure this information was not used against him. Even if those mechanisms wouldn’t be as effective as forcing the person to testify, it would have been something.

The long and short is that the rule is designed to protect the attorneys first and the client second. And even as far as clients go the real long term beneficiaries of the Rule aren’t the innocent clients, they’re the guilty ones. There is nothing remotely “ethical” about it.

A man is really ethical only when he obeys the constraint laid on him to help all life which he is able to succor, and when he goes out of his way to avoid injuring anything living.

Albert Schweitzer.

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