Ethics hypothetical Forum

[burvowski]

I'm just a 0L, but I was wondering how all of you (0Ls, 1Ls, etc) would act if in this legal situation. This is based on an actual case, so I think those of you already in law school have probably thought about and discussed it:

You are a lawyer who has taken an oath to maintain all of your clients' confidentiality. There is a murder trial going on that you are not involved in. The prosecution's case is largely based on the testimony of one witness. The witness claims they saw the murder happen.

The jury convicts the defendant and sentences him to death. Before the execution, the witness approaches you for legal counsel and says that he is worried that people/lawyers will flock to the region to try to convince the courts that he (the witness) is actually the one who committed the murder. You ask "if you're innocent, what do you have to worry about?" The witness replies that he isn't, and that he was actually the one who committed the murder, and that he had lied to the courts. You decide that you cannot and won't represent him.

The question is, do you break the relationship of confidence between him and you and tell the courts that he was actually the one who committed the murder, or do you keep your oath to maintain the attorney/client confidentiality and knowingly allow an innocent man to be excecuted?

[merichard87]

Aren't all lawyers required to abide by all laws? Ethically wouldn't you have to report this miscarriage of justice?

[jayn3]

0L response....if you refuse to take the case, then why would he be your client?

[Tautology]

Do defense attorney's really ask bone-headed questions like "if you're innocent, what do you have to worry about?"

[burvowski]

Do defense attorney's really ask bone-headed questions like "if you're innocent, what do you have to worry about?"

That was paraphrasing

[RVP11]

I'll give a 1L/2L answer: it looks like all the elements of attorney-client privilege are met.

Credit to Wikipedia:

Although there are minor variations, the elements necessary to establish the existence of the attorney client privilege are:

1.The asserted holder of the privilege is (or sought to become) a client; and
2.The person to whom the communication was made:
1.is a member of the bar of a court, or his subordinate, and
2.in connection with this communication, is acting as an attorney; and
3.The communication was for the purpose of securing legal advice.[3]
There are a number of exceptions to the privilege in most jurisdictions, chief among them:

1.the communication was made in the presence of individuals who were neither attorney nor client, or disclosed to such individuals,
2.the communication was made for the purpose of committing a crime or tort,
3.the client has waived the privilege by, for example, publicly disclosing the communication.

But see:

When an attorney is not acting primarily as an attorney but, for instance, as a business advisor, member of the Board of Directors, or in another non-legal role, then the privilege generally does not apply

[PKSebben]

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[PKSebben]

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[PKSebben]

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[jayn3]

0L response....if you refuse to take the case, then why would he be your client?

If he is communicating with you for legal advice, he's a client entitled to confidentiality.

mmk. i accept the title of n00b 0L.

[burvowski]

The question is not attorney / client privilege, but rather duty of confidentiality. Noob 0Ls.

Woops, my bad.

So what would you all do yourselves in this situation? No one has has really attempted to answer that yet

[Matthies]

The witness replies that he isn't, and that he was actually the one who committed the murder, and that he had lied to the courts. You decide that you cannot and won't represent him.

The question is, do you break the relationship of confidence between him and you and tell the courts that he was actually the one who committed the murder, or do you keep your oath to maintain the attorney/client confidentiality and knowingly allow an innocent man to be excecuted?

ABA Model rule of ethical conduct 3.3 would cover this. He admitted to you during the consultation that he lied to the court (tribunal). Under 3.3 (see comment 10) a lawyer is required to disclose to the court, even information normally confidential, when the lawyer knows the client committed perjury. You don't have a choice. You can tell your client that he either has to admit to the tribunal he committed perjury or you must. The only counter argument could be that the proceeding is "final" in which case you could argue 3.3 does not apply, but the inmate would have to have had all his appeals and (I would argue any clemency denied by the governor) for it to be a final judgment. In the end I would doubt a lawyer would get dinged on that technicality in this hypo. http://www.americanbar.org/groups/profe ... e_3_3.html

[PKSebben]

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[romothesavior]

I don't know how the law would come down (I'll let you practicing lawyers and students discuss that), but I know what I would do from a moral standpoint.

[PKSebben]

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[Tautology]

I would be a prosecutor and avoid such ethical dilemmas.

[Mr. Pablo]

I like this kind of thing, I like the ambiguity. This is the kind of thing that makes me excited about school.

/waiting for the other foot to drop

[romothesavior]

I don't know how the law would come down (I'll let you practicing lawyers and students discuss that), but I know what I would do from a moral standpoint.

I'm interested in hearing this. I'm really not sure what I would do. I see it both ways.

I see it both ways too, but I would disclose the information. Confidentiality is a very important aspect of attorney/client relations, but when the life of an innocent human being hangs in the balance, I think there is an even more important ethical obligation. It is an age-old philosophical question of "letting die" vs. killing; perhaps you aren't the one who told the lie to put this guy on death row, and perhaps you aren't the one delivering the lethal injection, but you have the power to save an innocent life and I think you have an obligation (not legal, but moral) to do something about it. Disbar me if you want, and maybe this other guy never gets charged for the crime, but I'd never want to live with the knowledge that I allowed an innocent man to die. I could personally never look at myself the same, and my confidence in the American legal justice system would be shattered.

This situation is different than one where a defense attorney knows his client did the crime, but gets him off. In such a scenario, we as a society have decided that the burden should be on the state, and the state failed to meet their obligation or failed to follow procedure. Or perhaps the jury just flaked out (see: O.J Simpson). In that situation, I think the defense did their duty to justice and fought for their client, and the prosecution should be held accountable for letting a guilty man off the hook.

And thanks for that link, I'm reading it now. Very interesting. This is definitely a very major weakness of our system, and it is kind of scary to think about.

[romothesavior]

I would be a prosecutor and avoid such ethical dilemmas.

+1. I could never be a PD or a defense attorney. I'm thankful there are people who do this job, and I don't want to disparage their role in the system, but it isn't for me.

[Tautology]

I would be a prosecutor and avoid such ethical dilemmas.

+1. I could never be a PD or a defense attorney. I'm thankful there are people who do this job, and I don't want to disparage their role in the system, but it isn't for me.

Yeah, I could never do it. Defending guilty people is really not something I could do. Even worse than that though, losing a case where I believed my client was innocent would just be devastating. At least DA's get to exercise some discretion.

[Matthies]

I am not sure 3.3 applies because the lawyer didn't not offer the evidence nor was the witness the lawyer's client at the time of the perjury.

I'd read 3.3(a) (3) as making it an affrimative responasebality to report known perjery after the fact, it would not be hard for the lawyer to say ask "if you're innocent, what do you have to worry about?" made jhim acleint (since no lawyer in his right nind is going to ask this in a cleint couslaing sesion, you don't get into the facts until you have discussed confidentaility, for istances like this). Likewise you could argue he was not a client, and blureted out a confession to you before you agrred to represnt him and hence it not privlaged. I'd clock myself in rule 3.3 anyway.

[burvowski]

How about this: (I didn't come up with it, obviously, another lawyer suggested it to me)

Model Rule of Professional Conduct 1.6 - Confidentiality of Information
(b) 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;

[Tautology]

I am not sure 3.3 applies because the lawyer didn't not offer the evidence nor was the witness the lawyer's client at the time of the perjury.

I'd read 3.3(a) (3) as making it an affrimative responasebality to report known perjery after the fact, it would not be hard for the lawyer to say ask "if you're innocent, what do you have to worry about?" made jhim acleint (since no lawyer in his right nind is going to ask this in a cleint couslaing sesion, you don't get into the facts until you have discussed confidentaility, for istances like this). Likewise you could argue he was not a client, and blureted out a confession to you before you agrred to represnt him and hence it not privlaged. I'd clock myself in rule 3.3 anyway.

Are you drunk already?

[Matthies]

I am not sure 3.3 applies because the lawyer didn't not offer the evidence nor was the witness the lawyer's client at the time of the perjury.

I'd read 3.3(a) (3) as making it an affrimative responasebality to report known perjery after the fact, it would not be hard for the lawyer to say ask "if you're innocent, what do you have to worry about?" made jhim acleint (since no lawyer in his right nind is going to ask this in a cleint couslaing sesion, you don't get into the facts until you have discussed confidentaility, for istances like this). Likewise you could argue he was not a client, and blureted out a confession to you before you agrred to represnt him and hence it not privlaged. I'd clock myself in rule 3.3 anyway.

Are you drunk already?

Dude I'm dyslexic get off my skirt

[Leeroy Jenkins]

I am not sure 3.3 applies because the lawyer didn't not offer the evidence nor was the witness the lawyer's client at the time of the perjury.

I'd read 3.3(a) (3) as making it an affrimative responasebality to report known perjery after the fact, it would not be hard for the lawyer to say ask "if you're innocent, what do you have to worry about?" made jhim acleint (since no lawyer in his right nind is going to ask this in a cleint couslaing sesion, you don't get into the facts until you have discussed confidentaility, for istances like this). Likewise you could argue he was not a client, and blureted out a confession to you before you agrred to represnt him and hence it not privlaged. I'd clock myself in rule 3.3 anyway.

Are you drunk already?

he's dyslexic, you inconsiderate jackass