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Wrongful Conviction and Attorney-Client Confidentiality

By Ken Strutin, Published on January 9, 2010

The drive to right wrongful convictions can sometimes create an ethical tension for civil and criminal attorneys. A lawyer in any kind of practice, but most likely criminal defense, may learn from a client that they committed a crime ascribed to someone else. When an innocent person faces conviction, imprisonment, and in some cases death, an attorney mindful of the injustice occurring to a third party is still bound by the rules of confidentiality to honor their commitment to their client.

Interestingly, one of fiction's greatest detectives addressed this very issue. In "The Boscombe Valley Mystery," Sherlock Holmes investigated the murder of a local resident Charles McCarthy. His son, James, had been accused of the crime. Alice Turner, the daughter of John Turner, their neighbor and benefactor, believed in James' innocence and retained Mr. Holmes. After thoroughly examining the evidence, the inimitable detective confirmed her beliefs. He determined, without revealing to his client, that her father John Turner was responsible, not James McCarthy.

The victim had been blackmailing Mr. Turner over nefarious events from their former lives in Australia. While Mr. Turner, who did not have long to live, was disconcerted over the wrongful accusation of James, he chose to remain silent because he hoped that the prosecution would fall on its own.

However, it was likely that he would expire before James McCarthy's case was adjudicated. In order to avoid spending his last weeks of life in jail and to prevent his daughter from learning about his secret, Mr. Turner agreed to Holmes' inventive compromise:

"Holmes rose and sat down at the table with his pen in his hand and a bundle of paper before him. 'Just tell us the truth,' he said. 'I shall jot down the facts. You will sign it, and Watson here can witness it. Then I could produce your confession at the last extremity to save young McCarthy. I promise you that I shall not use it unless it is absolutely needed.'"1

This Holmesian approach anticipated the difficulties in resolving the thorny issue of protecting confidentiality and preventing a miscarriage of justice. And revealed how this problem can arise in many professional contexts beyond attorney-client.

The post-mortem exculpation has been used with some effect in criminal matters, such as in the case of Alton Logan cited below. But this is only one of many possible outcomes of a most difficult ethical quandary.

The ABA Model Rules of Professional Conduct (ABA MPRC) has changed the landscape of attorney-client relations by creating an exception to confidentiality. Under the MRPC Rule 1.6(b)(1) a lawyer may "reveal" or "use" confidential information "to prevent reasonably certain death or substantial bodily harm." And Massachusetts' version extended it further to allow disclosure in order to prevent "wrongful execution or incarceration of another."

Interpreting this Rule in the context of wrongful convictions is complicated by evidentiary and practical considerations surrounding the potential use of such information. This article will examine resources about several notable cases and the scholarly literature analyzing different approaches to resolving this dilemma.

ETHICS CODES AND RULES

CASES

LAW REVIEWS


1 Sir Arthur Conan Doyle, Six Notable Adventures of Sherlock Holmes 486 (Platt & Munk Publishers: NY 1960).