Commentary: Legal profession’s ethics code in dire need of changing

By Berl Falbaum

A four-year fruitless campaign to try and have a provision of the legal profession’s ethics code changed, led to this column.

I’ll start by asking all the judges, lawyers, and others professionally involved in our justice system a question.

It is this:  Let us assume you were convicted of a murder you did not commit and were sentenced to life imprisonment.

Then you learn that four attorneys knew you were innocent because their client, already serving a life sentence for two other murders, confessed to them that he committed the crime for which you are imprisoned.

But the lawyers remained silent for more than 2-½ decades because the legal code of ethics prohibits lawyers from divulging confidential information they receive from clients.

Question:  Would you commend the lawyers and tell them to remain silent while remaining in prison?

Farfetched?  Not at all.

I wrote a book, (Justice Failed, How “Legal Ethics” Kept Me in Prison for 26 Years, Counterpoint Press, 2017), on Alton Logan, a black man in Chicago, who served 26 years under those exact circumstances.

Logan was wrongly convicted of fatally shooting a McDonald’s security guard, a murder committed by another man, Andrew “Gino” Wilson, who later was arrested and convicted in the fatal shootings of two other police officers.

Wilson confessed to killing the McDonald’s guard, but prohibited his lawyers from divulging his confession.

The lawyers drafted an affidavit stating that Logan was innocent, locked the paper in a strong box and one of the lawyers kept it under his bed for 26 years.
That is not justice, and I don’t care how you try to defend that behavior. It is indefensible, unjust, abominable, unconscionable – use whatever adjective you want – to knowingly, and “knowingly” is the key word, let the innocent rot in jail. That is not ethical; it is the antithesis of ethics.

Indeed, during my research, I discovered that another man, Lee Wayne Hunt, was in prison under the same circumstances.  When his lawyer went to court and testified that Hunt was innocent, the judge would not accept the testimony, stating that he violated lawyer-client confidentiality.

Hunt died in the Maury Correctional Institution in Raleigh, N.C., after serving 30 years for a crime he did not commit.

Logan was “luckier” than Hunt.  One of the four attorneys asked Wilson whether, if he died in prison, they could break their silence.  Fortunately, he agreed.

When Wilson died in prison, his lawyers went to court with the evidence that Logan was innocent and, he was freed. If Wilson had not given his permission, Logan would have remained in prison  because the U.S. Supreme Court ruled in Swidler & Berlin v. United States that lawyer-client confidentiality survives death.

Also, Logan escaped the death penalty because the jury, deciding his fate, voted 10-2 to have him executed, but the death penalty required unanimity from the jury. Two votes saved his life.

Since the book’s publication, I launched a one-man campaign to try and have the ethics code changed.  I believe it would not be difficult to amend the code and still protect privileged information received from clients while setting the innocent free.

In the book, Logan and I offer several proposals which would do just that.  As a matter of fact, three of the four lawyers who kept silent, whom I interviewed, also gave us recommendations on how to change the code.

During the last four years, I have contacted The American Bar Association, state bar associations, and numerous legal organizations, all to no avail.

The State Bar of Michigan, which I contacted in 2017, apparently thought I had a point and established a committee to study the issue.  I was interviewed but since then, every time I checked, I was told the committee was still working on it.  My goodness, U.S. participation in World War II lasted only four years.

The most outrageous provision in the ethics code holds that a lawyer may come forward if the client did not pay outstanding legal fees.  In other words, a lawyer’s fees are more sacrosanct than human life.

So, I ask again, if you (lawyers, judges, etc.) were in prison under these circumstances or – I will expand that to include that not just you but your loved ones were imprisoned while innocent – would you ask the four lawyers to remain silent?  Would you shrug your shoulders and simply accept your fate, no matter how unjust?  Most important, would you defend the code?

That’s what I thought.
Berl Falbaum is a veteran journalist and author of 11 books.