I am just finishing up Law Governing Lawyers with Prof. Schneider. I did wonder before the class first met why the course was not called something like “Legal Ethics”; after all, even our text is entitled “Ethical Problems in the Practice of Law” by Lerman and Schrag.
It didn’t take long to discover that the law governing lawyers, while usually ethical, occasionally requires behaviors that cannot possibly be squared with any ethical system.
The one that stands out most is Rule 1.6 in the Model Rules of Professional Responsibility. In Wisconsin, this Rule is codified as SCR 20:1.6 Confidentiality.
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in pars. (b) and (c).
[paragraphs (b) and (c) omitted.]
The rationale behind the Rule is that effective representation depends on the client’s candid communication with his or her attorney, which depends on trusting the attorney to keep the client’s confidences. Everyone has a right to fair treatment by the law ensured by effective representation. I get that, and at first glance, there is no apparent ethical dilemma. If clients tell their attorneys about ongoing or impending criminal acts, paragraphs (b) and (c) require or allow reporting.
But deeper reflection in class drew out a serious ethical dilemma from tragic cases in which lawyers are given information about past crimes, which does not fit the given exceptions and withholding of which is difficult to justify. The most tragic cases are child killers whose victims have not been found. When the killers tell their attorneys where the bodies are, can the attorneys be compelled tell the families or the police? From several cases, the answer is ‘No’.
Prof. Schneider put it to us: what would we do if our client tells us he’s murdered people and where their bodies are? Would we look for the bodies to verify our client’s statements? If we found them, would we tell anyone? Would we tell the families of missing children where their bodies were if we knew? My class debated this at length. For some, their obligation to their client trumped all other considerations. For others, the obligation to not assist their client’s concealment of his victims was decisive. Many students said they’d “find a way” to help the police find the bodies anonymously.
“Tragic cases make bad law”. But in this situation, bad law makes for tragic cases. Lawyer trustworthiness and client confidentiality are necessary. But what kind of coherent ethical system mandates trustworthiness and at the same time excuses acts or omissions which inflict avoidable harm on innocent persons? Rule 1.6 might be ethical in typical cases, but its limited exceptions may demand behaviors that are not ethically defensible, allowing (if not requiring) lawyers to assist clients in the on-going infliction of suffering and loss on innocent persons–-which I think fairly describes the horror of not only losing a child, but not even knowing if they are dead or alive.
And who benefits from the absoluteness of this rule? Only criminal defense clients who have actually committed crimes, and their zealous attorneys. I understand that the law must regard all defendants as presumptively innocent, but that is a legal fiction. In fact, sometimes the client is actually guilty. If your client tells you where the bodies of their victims are, then the client is actually guilty. We all benefit from the assurance of lawyer-client confidentiality, but most of us don’t have bodies or stolen loot to conceal. Only the actual guilty do.
Requiring lawyers to disclose to the police the locations of cadavers and stolen property does not adversely affect the representation of actually innocent clients, only the actually guilty. If a client withholds information relating to a criminal act the client actually committed, and that withholding compromises the effectiveness of the representation, then who is harmed? Only an actually guilty client.
Ensuring that a client is treated fairly by the criminal process regardless of what the client is charged with is not the same as ensuring acquittal regardless of what the client actually did. I am not untroubled by my argument above, but if someone’s interests must be sacrificed in the pursuit of justice, why not those of the guilty who are hiding bodies or loot?
Most of the term I have chewed on this problem, wondering what a workable and fair solution would look like. Then my LGL course dropped one in my lap.
Rule 3.4. Entitled “Fairness to opposing party and counsel,” SCR 20:3.4 among other things codifies the obligation of lawyers to disclose evidence given to them by their clients. In one case, State v. Olwell, 394 P.2d 681 (Wash. 1964), an attorney was sanctioned for not turning over a weapon given to him by his client. The rationale is that if the attorney holds on to the evidence, there is no chance the police would find it short of searching the lawyer’s office. Under the rule, the lawyer has turn it over. In exchange, the Court held, the prosecution must make every effort to conceal from the jury who gave them the weapon. Similarly, under People v. Meredith, 631 P.2d 46 (Cal. 2981), a lawyer gave similar evidence to the police and withdrew without incurring sanctions. In the District of Columbia, such evidence can be turned over to the D.C. Bar counsel who then gives it to the police without revealing where they got it.
There is the basis of an answer. Require attorneys given information about evidence of past crimes in the form of cadavers or stolen property to turn that information over to the police or a Bar Counsel and withdraw. The source of the evidence must be protected by the Bar Counsel or the prosecutor depending on how the process is structured.