Saturday, April 12, 2008

Implications of Legal Ethics

This AP article isn't new news, but it's well-written, includes color photos, and arrived on my doorstep today. Here's a snip for your thoughts:

An innocent man was behind bars. His name was Alton Logan. He did not kill a security guard in a McDonald's restaurant in January 1982.

"In fact," the document said, "another person was responsible."

They knew, because Andrew Wilson told them: He did it.

But that was the catch.

Lawyer-client privilege is not complete; most states allow attorneys to reveal confidences to prevent a death, serious bodily harm or criminal fraud. But this case didn't offer that kind of exception.

So when Andrew Wilson told his lawyers that he, and not Alton Logan, had killed the guard, they felt powerless — aware of information that could free a man they believed to be innocent, but unable to do anything with that knowledge. And for decades, they said nothing.

Sounds like a pretty heavy burden to bear. But is there any alternative?


Anonymous Anonymous said...

maybe you should go back to stealing other blogs' news...

4/12/2008 10:15 PM  
Blogger tj said...

haha. i love you too, [anonymous 10:15].

but it's too bad to see that your mother doesn't.

4/12/2008 10:38 PM  
Anonymous Anonymous said...

... once again the N&B mods demonstrate their class and sophistication!

4/13/2008 12:16 AM  
Blogger tj said...

haha- call it quirkiness that comes from reading corporations (and snarky anonymous comments to my posting of links on N&B) while sick.

and don't lump the rest of the N&B mods in with my lack of class or sophistication. i set a low bar only for myself.

4/13/2008 12:36 AM  
Anonymous Anonymous said...

10:15, if you want more exciting news put more anonymous flyers in everyone's lockers or something. Otherwise quit being a downer, your quips bore me horribly.

4/13/2008 1:43 AM  
Anonymous Anonymous said...

This 2L has been reading this blog with some frequency this weekend, and I am a little disheartened that every post has turned into an exchange of personal insults. I personally think this is an interesting dilemna, but if you do not, perhaps it would be better to simply not respond. And you moderators, for your part, certainly don't need to respond to remarks that are off topic.

As to this situation, old news or not, it's heartbreaking. We discussed similar issues in Civil Procedure last year, and I was shocked when I heard that things like this can happen. I suppose the question is whether it is more important to you as a human to reveal the information despite the attorney-client privelege. Having not yet taken Legal Pro, though, I really don't know what the implications would be.

4/13/2008 8:37 AM  
Blogger tj said...

I agree fully 8:37.

But if lawyers routinely sacrifice their careers to rat out their clients, wont clients simply stop trusting their lawyers with the truth? Then the whole system shuts down - both the good parts as well as the bad.

4/13/2008 10:49 AM  
Blogger Patrick said...


Spot on.

In addition to our classmates, this board is also frequented by Admits, professors, and students from other law schools. There are times when it is a blast to be a part of it, and there are times when I am embarrassed and don't want to play anymore.

Add to that the fact that, unlike almost everyone here, I have no protective cloak of anonymity or screen name behind which to hide. If someone were really offended by something on N&B, who do you think the will stop and chew out in the hallway? It's already happened this year. Twice. And it sucks for everyone involved.

I try to just click on by when the insults and childish bullshit starts flying. But thank YOU for NOT doing that. If all the people like you just left, this board would turn into autoadmit. (Or something even worse than autoadmit, given that at Boalt we are a community, not a bunch of strangers . . . )

Anyway your are not alone in those sentiments. To tell you the truth, I don't even think you are in the minority.

Moving on to the post. I think this is the kind of topic we do not discuss enough in law school, or at least not in 1L year. This post reminds me of two things. First, there is this thread from earlier this spring. Second, the formalistic zealous-advocacy-follow-the-rules-because-the-rules-will-set-us-free discussion isn't all that different than the JY discussion. His position is essentially that he served his role as a piece of a greater system, and therefore should not be held culpable by that system. (The second part is my own, but I think that's how the complete argument would be spelled out.)

Despite it's intellectual tidiness, I don't know what I think about that argument. In this case, if the criminal justice system is supposed to deliver, well justice. If lawyer with critical evidence is held up by a procedural rule, isn't there a way to think of "coming forward" as a moral obligation or professional obligation, even if the ETHICAL lines are drawn quite differently?

I suppose this is the distinction between act utilitarianism and rule utilitarianism, and it shows why there are good reasons to be dissatisfied with both.

4/13/2008 11:13 AM  
Anonymous Anonymous said...

Issues like this likely will be discussed if you take J*hn St*ele's Legal Profession class. He is really good about discussing newspaper articles, etc that involve ethical issues for lawyers.

I loved his class. And I had to take it on a Thursday night from 6:20-9 pm, so you know it must be a good class.

But as for the article, the whole thing makes me sad. On the one hand, part of me would like to think I would just say screw it and let the court know the guy was innocent. I would hope that the state bar would at most just put a letter in my file that says I did this and not totally take away my license. But on the other hand, I agree with what TJ said above about the risk of scaring future clients away from trusting their lawyers with this info. It's tough, and I don't envy the position those lawyers were in.

4/13/2008 11:47 AM  
Anonymous Anonymous said...

I almost think the government wants results that make no sense from a "justice" or "truth" perspective but that have all the procedural t's crossed and i's dotted. At least, that's what IIRIRA and AEDPA seem designed to do.

4/13/2008 11:49 AM  
Blogger Armen said...

This story was featured on 60 Minutes in March. There was also a thread on the VC about it. There is no easy answer.

In the VC thread JS comments that legal ethics rules be damned when an innocent man is in prison. I comment that a lawyer's loyalty is to his client. You don't throw a client under the bus simply because your conscience is eating at you.

4/13/2008 11:59 AM  
Blogger Patrick said...

You don't throw a client under the bus simply because your conscience is eating at you


What would happen if you threw your client under the bus? Your conscience would eat at you!

But the innocent dude would have his life back.

4/13/2008 12:05 PM  
Anonymous 2:57 said...

Here once again we have a problem with procedural rules meant to cover every possible fact pattern which actually prevent justice in an unusual, although not impossible, unjust circumstance.

Unfortunately, the penalty for the most expedient solution: "breaking those rules to see that justice done" is, sadly enough, merely the price of the comfort of a lawyer's salary. Surely to advocate such a personal sacrifice is absolutely uncalled for. We ARE lawyers, after all. (huh?)

Thus, while we all agree on the point (normatively speaking, lawyers should be able to prevent injustice in unjust cases like this without getting disbarred), the realistic price of justice may be too high (realistically speaking, we've all got bills to pay).

In arguing that our system should not be changed to avoid such injustice, some will try to hide behind a rather unimpressive molehill made entirely of slippery slopes. Is there a hazard to change the rules to allow lawyers to break confidence? Yes. Is such a hazard threatened by changing our system to allow lawyers to betray a wrongful client, if we ONLY changed the rule so that lawyers would not be disbarred for doing so? Yes.

However, I ask you all, why on earth would you think that we would only "be allowed" to change one part of the system (disbarment regs) in order to provide justice in cases like this? The solutions available to us, through our intellect and training, are much greater than we often give ourselves credit for or and hence, the intellectual license to pursue.

Yes, of course we should change our justice system to make it more just. Yes, also we should avoid the slippery slope (and, *gasp* loss of lifestyle) that so many of us are afraid of. Why not have a court of equity type body by which the judicial branch can grant pardon to both the unjustly imprisoned innocent man AND the morally upright lawyer for proving that innocence? To prevent lawyers from losing clients, the decisions reached in the equity-based adjudicatory process would not be allowed as evidence in any other trail (i.e. the trial of the real malfeasor).

Or, more easily achieved still, why not use our most invested community to solve some of this injustice? Why not have a rule here at Boalt by which the tuition of an alumni who makes such a justice-reifying choice and thus looses their lawyerific lifestyle is completely forgiven, even paid back if it has been paid off? Thereby, although one loses the ability to practice law, the economic damage is mitigated and a new education may be pursued, all while increasing the justice of our system. (Call Socrates, he might disagree on my use of justice here, but I hope that you dear reader, do not).

The point: do not limit yourself to merely thinking that our only choice is to change one part of the system by pretending that every other part of that system has to stay constant. Furthermore, why limit the scope of inquiry to the system writ large? Can OUR COMMUNITY do something about it?

Love and hugs,

Also: mean people make poor sparing partners. I will simply ignore you and your arguments if you choose to pepper your responses with personal insults. ;)

4/13/2008 2:32 PM  
Anonymous Anonymous said...

8:37 here. Glad that there have been some interesting posts on the topic. I certainly did not mean to imply that there is an easy answer to the question, nor that people should be able to flount the rules as per their own choosing (and some of these same themes were hashed out in the earlier thread about John Yoo). However, the situation seems, if nothing else, extremely rough justice for at least one person. I remember that most of my class did respond with incredulity over the fact that someone could sit in jail simply because a lawyer was bound by attorney-client privelege. I still feel the same way.

As to the increasingly frequent ad hominem attacks on this board, I find them unecessary, demeaning to us as a law school, and frankly, a little boring. My suspicion is that many of the anonymous posters are *not* students here. Regardless, most of the insults should just be ignored. And for those of you who are bold enough to post openly, I can only imagine how tough it can be at times.

After taking Legal Pro this coming Fall, perhaps I will have a more nuanced perspective on the topic, but for now my initial reaction stands.

4/13/2008 5:35 PM  
Anonymous Anonymous said...

In the highly unlikely even that 2:57 is for serious, I am going to give a for serious reply. Since I don't know where to begin, I'll just take the comment one paragraph at a time.

P1: Wrong. The discussion is about balancing act utilitarianism with rule utilitarianism. See Patrick, infra.

P2: Wrong. The price is disbarment. That's not a mere salary issue.

P3: Wrong. The realistic price is not merely the price of bills. See P2, infra.

P4: Marginal. Ignoring the stressed metaphor, the paragraph contains two valid, if uninformative conclusions.

P5: Wrong. This paragraph plays fast and loose with rhetoric in that it substitutes conclusions for premises. From the fact that we have not revised the system, it does not follow that we (1) think we have no license, or (2) think we have no intellect.

P6: This paragraph adds the error in P2 to the fallacious reasoning in P5. It also raises issues of procedure on which I am not qualified to answer.

P7: This paragraph also deploys that lovely P2 error (what a gem). Then it proposes to substitute the students at Boalt for every state bar in the country. It concludes by calling me "dear," which makes me shiver.

P8: This paragraph begs me to avoid a conclusion (from P5) that I have never embraced. It then attempts to disguise an empirical question as a rhetorical one, despite the fact that the answer to both is "no."

Signature Line: The signature line builds on the shiver from P7, and creates an overwhelming desire to wash my hands.

Post Script: "Sparing[sic]"

No personal harm intended, 2:57. And no sparing intended either.

4/13/2008 5:55 PM  
Anonymous -2:57 said...

Thanks for keeping it organized! My response:

P1. I apologize for trying to avoid what I see as the sophistry of abstract philosophical categorization. (So I don't have to append every single sentence with "I feel that", you'll forgive me if any adjectival phrases that I use here are matters of personal taste and not necessary due to their objective correctness... all expression is a matter of person choice, there is no objective "correct", etc. etc.) Allow me to make myself clearer: this argument is about deciding which should be prized more: following the procedural rules, as they were theoretically established to provide the most social benefit, or breaking those rules in certain circumstances, as that act may be more socially utilitarian than that achieved by following rules. I fail to see how the words I used in my original post pose a problem different from, as Patrick stated, the moral and intellectual dissonance between rule and act utilitarianism. Furthermore, I respectfully believe that this attempt to take this issue into the academic abstract is an affront to the base humanity of a real man suffering in a real jail. Thats my personal opinion, not a legal argument. Nevertheless, this argument can be about both. I am happy to meet you in the middle, but I am not willing to ignore the inherent moral consequences of using abstract concepts to talk of this unjust confinement of this innocent man and possible solutions to this dilemma.

P.2: I over stated and yes you're right: there are other penalties for taking action in this case, both monetary and social. I believe, normatively speaking, that any social penalty incurred by upholding justice will be offset by the moral reward of doing so. To argue this point any further is arguing the value of aesthetic choices, and I don't remember Kant well enough to do so. You'll forgive me for feeling that justice is more valuable that my friends' and colleagues' respect and any other social cost that I can think of. Furthermore, technically, the monetary price *may* be (but not necessarily is) more than one's salary. Nevertheless, that is to argue that there the exists a monetary price tag of stopping clear injustice, and I substantially disagree with you. The catch: one person who I feel for in this situation is the lawyer with a family, whose loved ones would have to take a hit because s/he upholds the moral tenets by which we all should live. I have faith, however, that the loved ones will make it through, and I for one would have stood by my father despite suffering material want if he had been forced to make a similar choice and had come out on the side of justice. A caveat: I don't want kids, so my views are biased.

P3: The formula established by my analysis still holds whether or not the price which I refer to there is equated with salary.

P4: Funny, I found my metaphor both eloquent and appropriate. But I'll accept a P as a matter of the variable tastes of a strict critic.

P5: I don't believe that any actual attempt at revision was in question there; my use of the active verb "think" indicates this. Indeed, no one here aside from me has offered ANY workable or unworkable solution. Some people have offered the perspective that I challenge (or so went AJO's Civ Pro) and my aim was to merely peremptorily refute those who would offer such a prospective as unnecessarily self-limited, but not necessary unintelligent or unlicensed.

P6 Its unfortunate that, based upon a lack of training, you distrust your own abilities to think clearly and thus you do not allow yourself license to respond to my suggestions. Frankly, I don't give a rats' ass what your training is so long as you are willing to work towards making the system more just rather than accepting unnecessary moral error. And I certainly don't think that knowledge of jurisdiction is going to help you decide morality. Should my suggestions and others at some time be analyzed from a legal procedural perspective? Yes. Are there other ways to talk about this here aside from the discourse of Civ. Pros I and II? Dear God, I hope so.

P7 Indeed, I do propose substituting we the Boalt community for ANY body that would make an unjust decision; thank you for helping me clarify that. However, such an act of downright open revolt is not in and of itself wrong if it increases justice in our society. Lastly, I *am* sorry for being cutesy and patronizing; I'll work on that.

P8 Nice catch on the empirical/rhetorical quandary. I should not have been so rah-rah, but I felt my chest swelling. Humbly, I ask for your forgiveness for my rhetoric. Nevertheless, my lack of evidence for the proposition that we can make a difference is just as lacking that for your answer that we can not. You may be right: no difference will ever be made because we as a community won't do anything to allow disbarred justice providers some sort of safety net for their honorable actions. I may be right in that change has already been made in perhaps just one mind of those here among us that it would be better to sacrifice much property to provide for the liberty of one man. Only time will tell which one of us is right. I sincerely hope that it is not you. I think that you might hold this hope as well.

Signature line: I meant every word.

Postscript: touche(sic). RDRR.

4/13/2008 7:26 PM  
Anonymous John Steele said...

When you are deciding your opinion on this and related fact patterns, I've found it's helpful to use this thought experiment. I'm not taking sides, I'm just separating some questions.

When someone commits a crime, does he have a moral duty to confess it? Should we enact an enforceable legal duty to confess it?

How do your answers to those questions affect the lawyer's duty? That is, does she have a moral duty to confess her client's crime? Should she have an enfoceable legal duty to confess it? If so, how would it work, mechanically and procedurally? And how would it affect future interactions between other clients and other lawyers?

Then you repeat the same exercise but you assume a situation where the client committed the crime but someone else is mistakenly accused of it. Do your answers change when the stakes aren't simply that the culprit goes free but rather that an innocent person pays the price? The stakes are much higher.

For people who want lawyers to reveal client confidences to spare innocent third parties, the difficulty usually lies in squaring up the client's duty and the lawyer's duty. That is, if you believe that culprits should not have a duty to confess their crimes but lawyers should reveal client confidences in a way that implicates or condemns their clients, you have to explain in some detail how it would work if the lawyer and the client had directly opposing duties.

Then you repeat it again but this time the innocent person is on death row. (Note: Massachusetts is unique in having a special exception to the duty of confidentiality for this fact pattern.)

4/14/2008 8:02 AM  

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