Shameful. Utterly shameful.
Those are the words that come to mind with the adoption by the American Bar Association (ABA) of a new ethical provision regarding lawyer-client confidentiality.
I am addressing the inbred hypocrisy of ABA’s decision not the change itself. Disgraceful and reprehensible seem appropriate as well.
First, some background.
I wrote a book (Justice Failed: How “Legal Ethics” Kept Me in Prison for 26 Years, Counterpoint Press, 2017) on an African-American man, Alton Logan, of Chicago, who spent 26 years in prison for a murder he did not commit.
Four lawyers knew that he was innocent. Why? Because a client of theirs had confessed to them that he had committed the killing.
But because of “ethical” standards, the lawyers, in interviews with me, said they could not divulge what their client had told them. They were bound to protect him under Model Rule of Professional Conduct 1.6. They regretted their decision but stood firm stating that they had no choice.
Instead of coming forward, about a month after Alton’s arrest in March 1982, the four signed a 45-word affidavit that Logan was innocent, placed it in a lockbox, which one of the lawyers kept under his bed for 26 years.
For years after the book’s publication, I tried to have the respective provision changed. I argued that the existing ethics code could be fixed without compromising lawyer-client confidentiality. Indeed, Alton and I discuss possible solutions in the book, some coming from the very attorneys who remained silent in his case.
Over several years, I contacted the ABA, wrote to state bar associations, legal ethics committees, launched a petition drive, was interviewed by the State Bar of Michigan and I even appealed to the Michigan Supreme Court, which, I was told, could alter the code, at least in Michigan. After a few weeks, I received an email from the court’s administrator, stating the Court had a “robust” debate on my proposal, but decided to do — nothing.
For the legal community, it is acceptable to knowingly — the key word is “knowingly” — let an innocent person rot in prison.
Now, comes the kicker. The ABA decided March 5 that when a lawyer is a victim of a crime committed by a client, well, lawyer-client confidentiality may not be that important. Specifically, the ABA’s new Opinion 515, states that:
“…a lawyer who is victim of a crime by a client or a prospective client may disclose information relating to the representation to the appropriate authority in order to seek an investigation and potential prosecution of the alleged offender or other services, remedy or redress. To the extent that the information would otherwise be the lawyer’s duty of confidentiality under Model Rule of Professional Conduct 1.6, the information is subject to an implicit exception to the Rule.”
If that were not enough, the new “ethics” proclamation extends to lawyers’ families and even legal staffs. Under those circumstances, the client-lawyer relationship “almost certainly” will end.
The opinion observes that, “It is unreasonable to require lawyers to remain silent when their clients abuse the relationship by committing a crime against the lawyer.”
But it is “reasonable” to let an innocent man like Alton Logan spend the best years of his life — 28 to 54 — festering behind bars.
All this is adopted, accepted and defended — and proudly, I might add — under the banner and guise of justice.
The expression that it all depends on “whose ox is being gored” never had more meaning. Note: ABA opinions are advisory, not binding, unless the recommended policy is adopted by a jurisdiction.
(Incidentally, a “very concerned” federal judge alerted me of the ABA decision because he knew of my interest in the subject.)
When I worked on the book, I asked the attorneys who remained silent about Alton’s innocence if they would have violated lawyer-client confidentiality if one of their loved ones was languishing behind bars for 26 years.
One told me that was an abstract question; it was hypothetical not abstract. A second one admitted he could not answer that question; and a third maintained her position would not change, i.e., she would have let her loved one die behind bars.
(She would not give me contact information for her children, whom, given their mother’s policy, I wanted to interview.) The fourth attorney in this case, citing health issues, said he could not talk with me.
To be clear: I do not object to the new edict. A lawyer subject to a crime certainly deserves to speak out. I object to the hypocrisy of defending policies that let innocent prople die in prison while giving lawyers the needed protection.
I almost forgot: Lawyers also are permitted to violate lawyer-client confidentiality if clients have not paid the respective legal fees. No, I did not make that up. Fees trump innocent lives.
I continue to be stupefied and angry about the institutional obstruction that refuses to fix a policy that could be changed in an hour or so. It ain’t rocket science and lawyer-client confidentiality would be maintained.
I wanted to discuss the new opinion with the ABA and after an exchange of emails with its Communications Division, I received the following reply:
“The ABA does not comment on Formal Opinions — the opinions speak for themselves.” Indeed, sadly they do.
I was advised I might talk to legal ethics experts, but if I do, they will “be speaking on their own behalf and not as a spokesperson for the ABA. Only the ABA president speaks for the association.” Except the president doesn’t speak.
Among the many questions I have:
• What prompted the ABA to issue this opinion suddenly?
• Do the crimes covered by the opinion include misdemeanors and felonies or just the latter?
• What guardrails exist to keep lawyers from threatening to release confidential information and file criminal charges unless the offending clients meet their demands — financial or otherwise?
• Instead of (okay, in addition to) protecting lawyers why hasn’t the ABA worked to fix an “ethics” code that knowingly permits innocent people to rot and/or die in prison?
Incidentally, Alton Logan was “lucky” and was released after the real murderer died in prison for another crime. Following the death, the four lawyers retrieved from the lockbox the affidavit that proclaimed that Alton was innocent and, with affidavit in hand, they managed to secure new court hearings at which Alton was exonerated.
But another man, Lee Wayne Hunt, also innocent and imprisoned under similar circumstances in North Carolina, unfortunately died in prison after serving 30 years.
When the murderer in Hunt’s case committed suicide, his attorney, Staples Hughes, voluntarily testified in court that Hunt was innocent. Cumberland County Superior Court Judge Jack A. Thompson refused to accept the testimony and reported Hughes to the state bar association for violating lawyer-client confidentiality. Justice!
In spending some 10 years with this case, I learned why Lady Justice wears a blindfold. She is hiding her tears.
Those are the words that come to mind with the adoption by the American Bar Association (ABA) of a new ethical provision regarding lawyer-client confidentiality.
I am addressing the inbred hypocrisy of ABA’s decision not the change itself. Disgraceful and reprehensible seem appropriate as well.
First, some background.
I wrote a book (Justice Failed: How “Legal Ethics” Kept Me in Prison for 26 Years, Counterpoint Press, 2017) on an African-American man, Alton Logan, of Chicago, who spent 26 years in prison for a murder he did not commit.
Four lawyers knew that he was innocent. Why? Because a client of theirs had confessed to them that he had committed the killing.
But because of “ethical” standards, the lawyers, in interviews with me, said they could not divulge what their client had told them. They were bound to protect him under Model Rule of Professional Conduct 1.6. They regretted their decision but stood firm stating that they had no choice.
Instead of coming forward, about a month after Alton’s arrest in March 1982, the four signed a 45-word affidavit that Logan was innocent, placed it in a lockbox, which one of the lawyers kept under his bed for 26 years.
For years after the book’s publication, I tried to have the respective provision changed. I argued that the existing ethics code could be fixed without compromising lawyer-client confidentiality. Indeed, Alton and I discuss possible solutions in the book, some coming from the very attorneys who remained silent in his case.
Over several years, I contacted the ABA, wrote to state bar associations, legal ethics committees, launched a petition drive, was interviewed by the State Bar of Michigan and I even appealed to the Michigan Supreme Court, which, I was told, could alter the code, at least in Michigan. After a few weeks, I received an email from the court’s administrator, stating the Court had a “robust” debate on my proposal, but decided to do — nothing.
For the legal community, it is acceptable to knowingly — the key word is “knowingly” — let an innocent person rot in prison.
Now, comes the kicker. The ABA decided March 5 that when a lawyer is a victim of a crime committed by a client, well, lawyer-client confidentiality may not be that important. Specifically, the ABA’s new Opinion 515, states that:
“…a lawyer who is victim of a crime by a client or a prospective client may disclose information relating to the representation to the appropriate authority in order to seek an investigation and potential prosecution of the alleged offender or other services, remedy or redress. To the extent that the information would otherwise be the lawyer’s duty of confidentiality under Model Rule of Professional Conduct 1.6, the information is subject to an implicit exception to the Rule.”
If that were not enough, the new “ethics” proclamation extends to lawyers’ families and even legal staffs. Under those circumstances, the client-lawyer relationship “almost certainly” will end.
The opinion observes that, “It is unreasonable to require lawyers to remain silent when their clients abuse the relationship by committing a crime against the lawyer.”
But it is “reasonable” to let an innocent man like Alton Logan spend the best years of his life — 28 to 54 — festering behind bars.
All this is adopted, accepted and defended — and proudly, I might add — under the banner and guise of justice.
The expression that it all depends on “whose ox is being gored” never had more meaning. Note: ABA opinions are advisory, not binding, unless the recommended policy is adopted by a jurisdiction.
(Incidentally, a “very concerned” federal judge alerted me of the ABA decision because he knew of my interest in the subject.)
When I worked on the book, I asked the attorneys who remained silent about Alton’s innocence if they would have violated lawyer-client confidentiality if one of their loved ones was languishing behind bars for 26 years.
One told me that was an abstract question; it was hypothetical not abstract. A second one admitted he could not answer that question; and a third maintained her position would not change, i.e., she would have let her loved one die behind bars.
(She would not give me contact information for her children, whom, given their mother’s policy, I wanted to interview.) The fourth attorney in this case, citing health issues, said he could not talk with me.
To be clear: I do not object to the new edict. A lawyer subject to a crime certainly deserves to speak out. I object to the hypocrisy of defending policies that let innocent prople die in prison while giving lawyers the needed protection.
I almost forgot: Lawyers also are permitted to violate lawyer-client confidentiality if clients have not paid the respective legal fees. No, I did not make that up. Fees trump innocent lives.
I continue to be stupefied and angry about the institutional obstruction that refuses to fix a policy that could be changed in an hour or so. It ain’t rocket science and lawyer-client confidentiality would be maintained.
I wanted to discuss the new opinion with the ABA and after an exchange of emails with its Communications Division, I received the following reply:
“The ABA does not comment on Formal Opinions — the opinions speak for themselves.” Indeed, sadly they do.
I was advised I might talk to legal ethics experts, but if I do, they will “be speaking on their own behalf and not as a spokesperson for the ABA. Only the ABA president speaks for the association.” Except the president doesn’t speak.
Among the many questions I have:
• What prompted the ABA to issue this opinion suddenly?
• Do the crimes covered by the opinion include misdemeanors and felonies or just the latter?
• What guardrails exist to keep lawyers from threatening to release confidential information and file criminal charges unless the offending clients meet their demands — financial or otherwise?
• Instead of (okay, in addition to) protecting lawyers why hasn’t the ABA worked to fix an “ethics” code that knowingly permits innocent people to rot and/or die in prison?
Incidentally, Alton Logan was “lucky” and was released after the real murderer died in prison for another crime. Following the death, the four lawyers retrieved from the lockbox the affidavit that proclaimed that Alton was innocent and, with affidavit in hand, they managed to secure new court hearings at which Alton was exonerated.
But another man, Lee Wayne Hunt, also innocent and imprisoned under similar circumstances in North Carolina, unfortunately died in prison after serving 30 years.
When the murderer in Hunt’s case committed suicide, his attorney, Staples Hughes, voluntarily testified in court that Hunt was innocent. Cumberland County Superior Court Judge Jack A. Thompson refused to accept the testimony and reported Hughes to the state bar association for violating lawyer-client confidentiality. Justice!
In spending some 10 years with this case, I learned why Lady Justice wears a blindfold. She is hiding her tears.
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