Bad Law Makes Tragic Cases: Is Rule 1.6 Unethical?

Posted on Categories Legal Ethics, Marquette Law School, Uncategorized, Wisconsin Law & Legal System

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.

2 thoughts on “Bad Law Makes Tragic Cases: Is Rule 1.6 Unethical?”

  1. 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.

    In a vacuum, that argument works. However, that assumes people don’t actually talk to one another at any point in society. More than once I’ve seen innocent people who hear about someone’s case without hearing all of the details (such as, for example, when they’re arrested and held in a cell overnight while awaiting charging) and assume they have to be careful what they say to their lawyer for fear he has to disclose it. And that’s with this provision on the books! Plus, what about the person who is guilty of a crime, but not the crime they’re being charged with? Should we be saying defense attorneys must now pick and choose whether it’s relevant to the case or not?

    But, of course, the real problem with your argument comes with the whole “Fifth Amendment right against self-incrimination” thing. Unless the prosecutor’s promising immunity, you can’t be compelled to give incriminating testimony. Based on your logic, couldn’t we also say that anyone who keeps quiet during a trial must in fact be guilty, since someone who was innocent would have no problem standing up under oath and saying “I didn’t do this!” Yet I can think of no person who would suggest that it’s ethical for a prosecutor to highlight this fact in a closing argument.

    I took Professor Schneider’s LGL course, and I maintained even then that I would be more than willing to go to the grave with that confidence. Defense attorneys need to be able to provide the best representation possible for their clients, or the system fails, and they can’t do it if they have to gift-wrap the conviction if the client says too much to them. Do I feel bad for the parents of those victims? I absolutely do. But I don’t see anyone bemoaning the victimized families of those defendants the State unreasonably throws the book at; how is that different, exactly?

  2. Andrew,

    If an accused hears jail talk of other people’s crimes, and then tells his lawyer, how is the accused harmed if the lawyer gets that information to the authorities in a manner that conceals who his client is? This is what I suggest should be the practice.

    If the above client assumes he should say nothing, how is the case harmed?

    If the above client withholds information about his or her own situation in order to conceal information about someone else’s case, then the lawyer has failed to explain their relationship adequately.

    No, defense attorneys should not be picking and choosing; if they receive information about evidence of past crimes, they must get that information to the authorities. In exchange the prosecutor may not use the fact that they got this information from the accused against the accused.

    The Fifth Amendment is not implicated. If a client tells his attorney the location of evidence, the client has compromised their own confidence. This is not much different from giving the murder weapon to your defense attorney. Current rules already require the evidence be turned over.

    Please realize that this rule change does not encompass every confidence, and should be limited to cadavers, stolen property, and (perhaps) weapons or other instrumentalities of the crime. Under current rules, if the client delivered to the attorney any of the above relevant to the current charge, the attorney is REQUIRED to turn it over. All I would change is to require the same for past crimes.

    Under my suggested change, the accused still enjoys a presumption of innocence and need not testify at all. If the accused does testify, the prosecutor on cross would not be permitted to ask if the accused provided the evidence.

    I agree that “[d]efense attorneys need to be able to provide the best representation possible for their clients,” which means that the defense attorney makes sure their clients are treated fairly under the law no matter what they are charged with. The system does not fail if the accused is rightly convicted.

    Families of wrongly-charged persons are victims, too. No disagreement. But they are not helped by making additional victims. And if the accused actually committed the offense, then his family is HIS victim, not the System’s.

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