by Katherine Scardino I have been reading about the bizarre situation involving two criminal defense attorneys (pictured left) who represented a man who admitted to his attorneys that he committed a crime for which another person was convicted. The innocent person, Alton Logan (pictured below left), is currently in prison and has been for the last twenty-five or so years. Back then, the man who actually committed the crime (below right) wrote out a statement, gave it to his attorneys, and instructed them to keep that document in a safe place. He did not grant them permission t
o disclose this information. Their client recently died. The attorneys believed that because of the attorney-client privilege they were bound to honor their client’s wishes and keep quiet for more than two decades.The attorney-client privilege prevents a person’s attorney from disclosing any confidential communications "made for the purpose of facilitating the rendition of professional legal services to the client." In Texas, this is under our Texas Rules of Evidence, Rule 503(b)(1). This rule is subject to ethical considerations if violated; i.e., for an attorney, that means a lawsuit or a grievance, something that could affect your livelihood.
This is a narrow question - very tight boundaries: The attorneys know information that could potentially release an innocent person from prison but they are ethically and legally bound to keep it confidential. The attorney-client privilege is dissolved only upon the death of their client, which happened in this case to eventually provoke the disclosure by the two attorneys. What would you do in same or similar circumstances? Could your conscience support this knowledge for twenty-five years? Would you "leak" the information to a police officer or someone in the criminal justice system in the hopes that more investigation could be done? Should the lawyers have told the authorities as soon as they knew this information?
Before you answer, consider this exception to the privilege:
(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.
So, in my mind, the question becomes - Is it a "fraud" to allow an innocent person to languish in prison for many years? I believe that it is. If the attorney is attempting to assuage his guilty conscience by divulging information that is clearly a "confidential communication," then this is the only exception that might, just might, apply. The exception may help the conscience of the poor soul who is bearing this burden of knowledge, but there would be no guarantee as to a legal result if the client sued him.
I, as a criminal defense attorney, do not believe I could "sit" on this information and let an innocent person remain incarcerated for a crime I knew he did not commit. I believe I would have to step forward and suffer the consequences, whatever they may be. I would justify this disclosure by claiming, at least in my own mind, that it was fraudulent to keep silent about my knowledge. This information would eat at my soul. I could not contain it.
What would you do? If you are a regular citizen, and you had information that would clear a man’s name, you would freely come forward. If you are an attorney, it isn’t that simple. Seriously, what would YOU do?
