EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, May 3, 2011

Article Of Interest: Jean Fleming Powers' Comparing Exceptions to Privilege and Confidentiality Relating to Crime, Fraud, and Harm—Can Hard Cases Make Good Law?

Back in 2008, I wrote an essay for the Northwestern University Law Review Colloquy entitled, Ordeal By Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality. The piece was inspired by the Alton Logan case (blogged about here, here, here, and here), in which Alton Logan languished in prison for 26 years while two attorneys failed to reveal that their client told them in confidence that he committed the crime for which Logan had been convicted. The attorneys kept mum based upon the duty of confidentiality owed by lawyer to client, and my argument was that an existing exception to the duty of confidentiality should be read to allow disclosure of client confidences in cases like the Alton Logan case. Specifically, Model Rule of Professional Conduct 1.6(b)(1) provides that

A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm....

My claim was that this exception should be read to create a wrongful incarceration/execution exception to attorney-client confidentiality. I think that if an individual like Alton Logan is convicted and sentenced to die, it is easy to see the argument that a lawyer revealing that his client admitted committing the crime for which Logan was convicted would or at least could prevent reasonably certain death. But what about if an individual like Logan is sentenced to something less than death? Would disclosure be reasonably necessary to prevent reasonably certain death or substantial bodily harm? This argument was a bit more of a stretch, but I claimed that the answer was "yes" because 

-in comparison to the non-incarcerated, inmates face an increased risk of physical violence based upon factors such as the concentration of violent individuals, overcrowding, prison culture, the inability of prisoners to physically separate themselves, the prevalence of drug use, and prison guard brutality;

-inmates experience heightened rates of communicable diseases contracted vis a vis the general population, perhaps explained by prison overcrowding (and prisoners accordingly living in close quarters) and compounded by generally poor medical screening and treatment in prisons;

-the consensus that inmates are subjected to an increased risk of same sex rape, with one study revealing that 98% of an inmate sample was aware of at least one sexual assault occurring in the previous year.

So, is this an argument that most states are likely to buy? Well, Alaska did the following year, but I doubt that most states will follow suit. So, if states aren't willing to buy this rationale, what is the alternative? According to the recent article, Comparing Exceptions to Privilege and Confidentiality Relating to CrimeFraud, and Harm—Can Hard Cases Make Good Law?, 79 UMKC L. Rev. 61 (2010), by Jean Fleming Powers, a professor at the South Texas College of Law, the answer is to create an exception to attorney-client confidentiality when an attorney feels that revealing confidential information is reasonably necessary to prevent a significant loss of liberty.

Professor Powers begins the article by discussing the Alton Logan situation and then discusses several other thorny ethical factual scenarios that confront lawyers. And, if you want some good hypotheticals to discuss in a Professional Responsibility or Evidence class, by all means check out the article for all of Professor Powers' discussion of these scenarios (and the differences between attorney-client confidentiality and the attorney-client privilege).

In this post, however, I want to focus upon the scenario presented in the Alton Logan case: A client tells his attorney that he committed the crime that led to another man's incarceration. According to Professor Powers,

The rules already allow revelation to prevent death or substantial bodily harm. This article suggests that revelation should also be allowed to prevent a significant loss of liberty. Such an exception would include wrongful incarceration for any significant time period and prevent the extreme miscarriages of justice in wrongful conviction cases in which the conviction involves incarceration of the defendant. Adding this exception is consistent with both the importance placed on liberty in this country and with other current exceptions. For example, in the so-called "self-defense" exception, an attorney is allowed to reveal confidential information to defend himself against claims even of third parties, even if all that is at stake is civil liability. Surely allowing revelation to prevent loss of liberty to an innocent third party is consistent with that exception. Likewise, the Model Rules recently added limited exceptions for the prevention of substantial financial harm. It appears that the then prevalent culture of corporate misdeeds and the resulting widespread financial harm, such as in the Enron situation, had a lot to do with the exception. As dramatic as the consequences of such cases may have been, they pale in comparison to the plight of a wrongfully incarcerated innocent person. Thus, if the financial harm exceptions are justifiable, and do not (apparently) undermine in any significant way the willingness of clients to confide in their attorneys, certainly a loss of liberty exception would also be justified.

I strongly agree with this analysis. Indeed, it could even be argued that wrongful incarceration in and of itself would cause the wrongfully incarcerated person substantial financial harm, justifying disclosure. But explicitly recognizing that a loss of liberty justifies disclosure makes this analysis clearer and would also allow disclosure in other situations currently not covered by Model Rule of Professional Conduct 1.6(b)(1). As Professor Professor Powers notes

A loss of liberty exception could further provide relief in another potentially difficult area-kidnapping cases. While kidnapping could result in death or substantial bodily harm in some cases, that result will not always be as clear as the current rule would seem to demand and thus may not fit within that exception. However, it can fit within the loss of liberty exception: One who has been kidnapped is not free to return to his original location and thus has significantly lost his liberty. This reasoning, along with the fact that kidnapping often involves some risk of death, bodily harm, or other demonstrable harms in addition to the urgency of the situation, justifies an exception for kidnapping cases. Because the loss of liberty is the clearest result of a kidnapping, it should be included within the loss of liberty exception. 

Again, I agree with this analysis and think that it can be couched in due process terms. The exception to confidentiality for death or substantial bodily harm protects life. The exception to confidentiality for substantial financial injury protects property. And, an exception to confidentiality for a significant loss of liberty would protect liberty.

I asked Professor Powers what led her to write the article, and she responded,

I wish I had a great story to tell about this, but in fact it was the culmination of some ideas and concerns that I had been thinking about for some time: the importance of understanding and maintaining the distinction between privilege and confidentiality, the disconnect that sometimes occurs between an attorney's professional obligations and the public's perception about what is the right thing to do, and the importance of looking at the purpose of rules to find better ways of applying them.  Ultimately, my interest was pretty much as I indicated -- to find ways of dealing with some difficult issues that seem to cry out for a solution.  I hope this helps -- I tend to puzzle over issues for some time before putting them on paper, and by the time I do I think I end up bringing more than one of my pet concerns to it.  



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