Lawyer ethics FAIL on my part (and also, why people hate lawyers)

Okay, so I was completely wrong about something I was tweeting about earlier, so I have to clarify.

My original tweet:

was asked in interview this morning whether she'd betray a client's confidence or let innocent man be put to death. Yay law?!?

(The idea was you're a defense counsel whose client told you that they did the crime for which another person has been convicted and is facing the death penalty, and the client refuses to let you tell anyone. What do you do?)

I got a variety of responses, and in responding, I got something completely wrong: lawyers have an obligation of confidentiality to their clients. Which is absolutely correct. BUT I also said that there is no exemption from that duty in confidentiality in the situation described in my tweet. Which is WRONG: There IS an exemption to the duty of confidentiality when it's necessary to prevent reasonably certain death or bodily harm. So, someone facing the death penalty would TOTALLY count.

In my defense, I blanked on that rule for 2 reasons: first, the hypothetical presented to me in the interview stated that if you broke confidentiality, you WOULD be violating the ethical rules and you WOULD be disbarred (that is, the point wasn't to test my knowledge of the ethical rules, it was just to see how I would deal with a conflict between professional ethics and moral code). So in the hypo (though NOT real life!), you have no way out. (I think this is because that exemption is relative recent and so they may have been using this hypo since before there was an out?)

Second, in my Ethics class we talked about a similar situation (a real case), in which two attorneys represented a criminal defendant who told them that he had committed crime X, for which another man was convicted, but who refused to let his attorneys tell anyone. The difference here was that the innocent man wasn't facing the death penalty, just (just!) life in prison. So: no imminent death/bodily harm! So the lawyers couldn't say anything! They finally convinced their client to let them tell the authorities after he died. And so the innocent man sat in prison for 10s of years, until the guilty man finally died and the innocent man could be set free. The lawyers got a HUGE amount of flak for that (and you might argue rightly so), but various criminal defense associations came out in their support - according to the professional ethical code of the legal profession, they did exactly the right thing. I got the hypo mixed up with that case in my head when I was tweeting earlier.

So, I wanted to make sure I clarified that.

But it's funny, because to many people out there, leaving the innocent man in prison would be almost as heinous as letting the innocent man be executed. And therefore the distinction that lawyers see is not one that most non-lawyers would consider especially meaningful. And the fact that I do understand the distinction - and appreciate that confidentiality is the cornerstone of the lawyer-client relationship - means that I've learned that "thinking like a lawyer" thing. Very weird.

Comments

[Another Damned Medievalist]

I can see the lawyerly distinction, even though it's repugnant to me. And I'm glad to know I was right about the exception... which I doubtless got from a tv show (or possibly listening to NPR).

[Seeking Solace]

I sent you an email. :)

[Doctor Moonbeam]

Yeah, that would be one of the sorts of things for which people hate lawyers. I can understand the principle, but I think the application is... questionable.

[Feminist Avatar]

Although given that prisons are not notoriously safe places and could potentially lead to a prisoner being raped/ seriously assaulted and possibly death, you could argue that the imminent danger clause does actually apply in the context of the latter example.

[CC prof]

Wow, a no-win scenario for the rookies. Kind of like the "Kobayashi-Maru" scenario in STAR TREK.

[New Kid on the Hallway]

Feminist Avatar - you might be able to make the argument under special circumstances, potentially, but generally it doesn't really fly, because while in practice prisons are dangerous, their *intent* is just to incarcerate, not to injure/kill, so you can't argue that just going to prison is an imminent danger (because to do so would be to reject the very system you're working within). Perhaps if you had very specific information that Bad Prisoner X had sworn he'd kill Convicted Innocent the instant CI set foot in prison, but you can't simply argue prison itself is an imminent danger. (It's not imminent enough.)