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Univ. of South Carolina School of Law

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Saturday, June 20, 2009

Ordeal By Innocence, The Aftermath: Alaska Adopts Wrongful Incarceration/Execution Exception To Attorney-Client Confidentiality

Last summer, the Northwestern University Law Review Colloquy published my essay, Ordeal By Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality. I wrote the essay largely in response to the Alton Logan story. As I noted in the essay,

In 1982, Alton Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald's.  What the jury that convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed.  The problem was that Wilson confessed to his attorneys, public defenders Dale Coventry and Jamie Kunz, who confirmed with the relevant authorities that they were bound by the rules of professional responsibility not to disclose their client's confession.  Coventry and Kunz did prepare an affidavit detailing Wilson's guilt and in fact planned to come forward if Logan dwere given the death penalty. Ironically, two holdouts on the jury seemingly spared Logan's life by voting against capital punishment, but in fact dealt him the same fate that would befall the affidavit: being locked up—Logan in a prison cell; the affidavit in a lock box.  Pained by guilt, the public defenders convinced Wilson to allow them to reveal his guilt after his death, resulting in Logan's eventual release from prison twenty-six years after he entered.


The thrust of my essay was that such injustices occur because,

[u]ntil recently, the Model Rules of Professional Responsibility prohibited an attorney from disclosing client information relating to a completed crime in which the attorney's services were not used, meaning that an attorney could not disclose that his client committed a crime for which another man was charged or convicted.  And while the ABA amended Model Rule 1.6(b)(1) in 2002 to permit attorneys to reveal client information to prevent "reasonably certain death or substantial bodily harm," the few commentators to address the issue have curtly concluded that this exception would still not apply to the wrongful incarceration scenario presented by the preceding example[]. Conversely, Massachusetts Rule of Professional Conduct 1.6(b)(1) explicitly permits attorneys to disclose client information to, inter alia, "prevent the wrongful execution or incarceration of another." Th[e] Essay argue[d] that the twenty-six states that have adopted some form of amended Model Rule 1.6(b)(1) can and should read an implied wrongful incarceration/execution exception into their existing rules while the remaining twenty-three states (and the District of Columbia) that have not adopted some form of amended Model Rule 1.6(b)(1) should amend their rules to create such an exception and can do so while causing less violence to the rationales behind attorney-client confidentiality than existing exceptions.

At the time of my essay, Alaska was one of the twenty-three states that had not adopted some form of amended Model Rule 1.6(b)(1). But, as Andrew Perlman over at Legal Ethics Forum reported earlier this month, this all changed on tax day, 2009. On that day, Alaska adopted new Alaska Rule of Professional Conduct 1.6(b)(1)(C), which provides that "a lawyer may reveal a client's confidence or secret to the extent the lawyer reasonably believes necessary...to prevent reasonably certain...wrongful execution or incarceration of another."

And the Alaska Comment to the change makes clear that the Massachusetts rule was the model for the new Alaska rule. According to that Comment,

In paragraph (b)(1)(C), the court included an additional limited exception to the normal rule requiring lawyers to preserve the confidences and secrets of their clients.  This provision is modeled on the similar Massachusetts rule; its core purpose is to permit a lawyer to reveal confidential information in the specific situation in which that information discloses that an innocent person has been convicted of a crime and has been sentenced to imprisonment or execution.

Nice work, Alaska. Hopefully, this change will not be an isolated incident, and we will see several other states start to adopt wrongful incarceration/execution exceptions to attorney-client confidentiality.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/06/last-summer-thenorthwestern-university-law-review-colloquy-published-my-essayordeal-by-innocence-why-there-should-be-a-wro.html

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