An ethical dilemma

March 10, 2008 at 8:37 am | Posted in law school | Leave a comment

Coming hot on the heels of Saturday’s dreaded MPRE (the Multi-State Professional Responsibility Exam, which most states require for you to sit for their bar exams…), last night’s 60 Minutes had an excellent piece on a dilemma that will be seen very differently by lawyers and non-lawyers.  If you have a few minutes, the link is here.

Two lawyers were appointed as defense counsels for a man who was accused of two brutal murders.  In the course of their representation, he revealed to them that he had in fact committed yet a third murder, for which another man had already been wrongly convicted.  The second man was sentenced to life in prison.  When the first man, the true murderer, died recently, his lawyers finally were able to reveal that their client had actually committed the crime.  Meanwhile, the innocent man had been in prison for 26 years.  The lawyers felt bad for the wrongly imprisoned man, but were utterly convinced they had done the right thing (indeed, they were smart enough to get an affidavit signed at the time their client confessed that he had done it, so that if they were able to come forth with the information at a later date, no one could say they were making it up.  Also, they had secured the murderer’s permission to reveal the information should he die.  Had they not done so, they still wouldn’t have been able to come forth.) 
The lawyers made the point that such confidentiality is essential for the profession, and if you start making exceptions, the whole idea of attorney-client privilege would be undermined, leaving a gaping hole in our justice system.  But where is the line between doing what is right as an attorney and what is right as a person?  (Interestingly, had he been given the death penalty, the lawyers could have come forward.  The professional ethics rules do allow you to reveal information if it would prevent likely substantial bodily harm or death.  However, the rule is a may rule, not a must rule.  Lawyers still have a great deal of discretion.) 
These sorts of problems get discussed all the time in professional ethics classes in law school (often known as the “Hidden Bodies” dilemma or something similar).  Seeing a real-life application of the ethical rules underscored why it is so important to spend time on them in class.  I feel about them the way I do about certain aspects of Sixth Amendment criminal protections.  Sometimes, cases slip through the cracks that should not.  But were the rules not in place to begin with, our justice system as a whole would not be as strong as it is.
Nevertheless, I am not convinced in this case I wouldn’t have risked disbarment to set the record straight.  I just don’t know what I would do.  And I think the decision would be much clearer for a non-lawyer.  (Indeed, Tim was appalled: “Couldn’t they have sent someone an anonymous note?”  The answer being:  even sending such a note would be unethically revealing privileged information, which, in the end [and ironically], would be inadmissible in court anyway.)
Update:  if anyone cares, here’s what the commenters on the WSJ’s “LawBlog” (which also posted on this) were saying today.
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