In North Carolina, the bar is faced with a difficult question over the limits of confidentiality in a case of Staples Hughes. Hughes revealed a confidential statement made by his late client, who allegedly exonerated his co-defendant, Lee Wayne Hunt in a double murder case.
Hughes’ client committed suicide in 2002 — leaving Hunt to serve two life sentences. The case against Hunt was always circumstantial. In 1986, he was convicted and sentenced to two life sentences for killing Roland and Lisa Matthews in Fayetteville without any physical evidence linking him to the crimes.
Lawyers in Chicago face a similar case, click here.
Now, Hughes faces a charge of unethical conduct, though he says a North Carolina committee recently cleared him (click here).
Hughes is arguing that he is allowed to reveal a confidential statement in light of the ongoing harm to Hunt. The standard rule is (as shown below in the D.C. Bar Rule 1.6) is:
(a) Except when permitted under paragraph (c) or (d), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of the lawyer’s client;
(2) Use a confidence or secret of the lawyer’s client to the disadvantage of the client;
(3) Use a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person.
(b) “Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.
(c) A lawyer may reveal client confidences and secrets to the extent reasonably necessary:
(1) To prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm absent disclosure of the client’s secrets or confidences by the lawyer; or
(2) To prevent the bribery or intimidation of witnesses, jurors, court officials, or other persons who are involved in proceedings before a tribunal if the lawyer reasonably believes that such acts are likely to result absent disclosure of the client’s confidences or secrets by the lawyer.
Hughes’ argument may go too far. If incarceration is the same as bodily injury, it would allow attorneys to break confidentiality in a wide array of cases. Confidentiality is already under great pressure as cases have forced a variety of exceptions to the rule. Moreover, there is a danger of a lack of disclosure or trust if clients believe that their lawyers can break confidentiality under fluid definitions of such harm. Finally, if a lawyer can reveal such information, there may be demands for testimony when another lawyer suspects that such information has been conveyed. Since there is no bar to disclosure, one can imagine prosecutors or other defense attorneys demanding such information.
Recently, the bar dealt with a similar case involving Virginia attorney Leslie P. Smith who was counsel a decade ago for a cooperating witness, William Jones, who wanted to avoid the death penalty for a murder by fingering his co-defendant, Daryl R. Atkins. Atkins got tagged for the murder and the death penalty. However, Smith remained silent about a major problem: he allegedly watched prosecutors coach and conform Jones’ testimony, which was fatally flawed. Smith’s disclosures prompted a commutation of Atkins sentence to life, click here.
For a discussion of the Hughes case, click here.
I am actually thankful to the owner of this website who has shared this great piece
of writing at here.
Susan:
I agree. The confidentiality compact should yield in the face of serious bodily harm, death or unjust imprisonment. Otherwise, the system is just a willing accomplice in the harm done to the innocent, despite its lofty goals.
Mespo, this sounds like a reasonable solution, but not being an attorney or any kind of law professional, I couldn’t say for sure. I simply cringe at the idea of an innocent man having to endure an unjust sentence for a crime it’s looking like he never committed to avoid making a serious breach of ethics.
To me, this is like making a human sacrifice, even though I am well aware that incarceration by itself isn’t bodily injury. But serious bodily injury and worse can and does happen in prison. There are unprovoked assaults by either other inmates or even worse, corrections officers. There is also the terrible lack of medical care in many prisons, which could hasten the end of that person’s life. The idea this could happen to a completely innocent person is simply intolerable and unacceptable, to me anyway.
So, while incarceration alone may not be a major cause for concern, what often happens during incarceration is. There has to be a just and humane solution to this terrible problem, which I hope the law professionals community will be able to arrive at.
JT:
I think a solution here is to expand the confidentiality concept to include permitting disclosures by counsel to prevent fraud on any tribunal. Obviously, the rule allows disclosure to prevent fraud in the case in which the lawyer and his client are participating. That is why a lawyer must withdraw if his client commits perjury on the stand. Why should the rule be any different when, in circumstances, such as these where the client defrauds another tribunal.
What is the wrong with this judge and the prosecutor’s office in this case, that should result, despite an obvious change in circumstance of a twenty year privilege, ie death, and the,(now)unreliable submitted evidence, in an innocent man, continuing to serve time?
http://jonathanturley.org/2007/11/19/fbi-quietly-abandons-bullet-analysis-used-to-convict-hundreds-without-informing-them/
The judge refused to reopen the case, and Hunt remains in prison. His appeal is pending before the state supreme court.
Part of the evidence against Hunt was FBI bullet lead analysis, a now-discredited forensic tool abandoned by the bureau two years ago. The remaining evidence was testimony by Cashwell and another co-defendant, who received reduced sentences for their cooperation. A fourth co-defendant pleaded guilty to lesser charges and received a three-year sentence, the Fayetteville Observer reports.
A hat tip to How Appealing, which posted the story.