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.
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.