Staples Hughes, a North Carolina lawyer, was on the witness stand and about to disclose a secret he believed would free an innocent man from prison. But the judge told Mr. Hughes to stop.Hughes continued, testifying that a client, now dead, who had confessed to and been imprisoned for a double murder had told Hughes in confidence that another man, also convicted of the same crime, had nothing to do with it. That is, the other man has been in prison for over 20 years now for a crime he did not commit - and will spend the rest of his life there if nothing is done. Hughes decided that getting an innocent man out of prison was worth breaking the confidence of a dead former client.
“If you testify,” Judge Jack A. Thompson said at a hearing last year on the prisoner’s request for a new trial, “I will be compelled to report you to the state bar. Do you understand that?”
For his trouble in trying to do what certainly would appear to be the right thing, he was accused of "professional misconduct" by Judge Thompson, who refused to consider the testimony and threw it out as hearsay, a decision upheld by the North Carolina Supreme Court this past January. The complaint against Hughes was dismissed the day before the NC Supreme Court ruling - but an innocent man named Lee Wayne Hunt remains behind bars.
The thing is, a lot of those "experts" in "ethics" agree with the judge and approve of Hunt's being in prison.
Legal ethics rules vary from state to state, but many allow disclosure of client confidences [only] to prevent certain death or substantial bodily harm. That means, several legal ethics experts said, that lawyers may break a client’s confidence to stop an execution, but not to free an innocent prisoner. Massachusetts seems to be alone in allowing lawyers to reveal secrets “to prevent the wrongful execution or incarceration of another.”Okay, there's point one: Notice that Freedman says breaking confidence in a "life-and-death situation" is acceptable precisely because it is so rare it makes no difference. It's pretty damn easy to set moral absolutes when you figure any conflict is extremely unlikely to arise. But there's more.
“I prefer to draw the line at the life-and-death situation,” said Monroe Freedman, who teaches legal ethics at Hofstra. “That situation is sufficiently rare that is doesn’t present a systemic threat. If that is extended to incarceration in general, it would end the sense of security clients have in speaking candidly with their lawyers.”
[T]here is debate over how a client’s death affects a lawyer’s obligation to keep the client’s secrets. Most lawyers and courts say the obligation lives on. ...Excuse me? Their reputation? Maintaining the reputation of a dead ex-client is important enough to justify keeping an innocent person in prison, perhaps for the rest of their life? What madness is this?
Both the United States Supreme Court and the North Carolina Supreme Court have said the lawyer-client privilege survives death, though they recognized that narrow exceptions might be possible. “Clients may be concerned about reputation, civil liability or possible harm to friends of family” if their secrets were disclosed after they died, Chief Justice William H. Rehnquist wrote for the majority in a 1998 Supreme Court decision.
It seems to me that the real, the true, justification for attorney-client privilege is enabling the client to speak freely without fear that the attorney will reveal information to the detriment of that client's interests - that is, in the words of another, nobler, profession, the attorney will "do no harm." It also seems to me that it's only in the rarest circumstances that those interests could possibly persist beyond the client's death and certainly should not then include the "interests" of third parties in some way connected to the deceased. And I'm damn sure that concealing the fact that an innocent man is in prison is no way in hell one of those interests.
What we see in cases like these is everything that is wrong with our legal system. It's become ossified in its own procedures, whited sepulchers protecting a secular priesthood with its own rituals to which only the select are privy and in which everyone has their assigned roles (attend most any trial and see how much effort is put in by both judge and lawyers to reduce both clients and jury to passive spectators), a priesthood more concerned with whether the proper rites are carried out than with their effect on real people.
We need a massive, a revolutionary, change in our legal system. No, I'm not talking about doing away with trial by jury or presumption of innocence. (In fact, I think the latter is too often honored less in practice than merely in theory.) I'm talking about a change in how we view that system and how it views itself, that it must be seen as a means to an end, the end of justice, not as - as too many in the field view it today - an end in itself. I will even concede that the system must continue to revolve around law because to do otherwise would give too much influence to personal prejudice. The problem is that now the system, again, regards law as the concern, and dealing with law as the purpose, not as the tool. There must be some way, some way, within that basic structure of trial by jury and presumption of innocence to make justice the central concern, something guided by law but not trumped by it, and uncovered by a process accessible to and understandable by more than a select few.
Today, our legal system offers no such thing. Instead, it offers the facade of justice, not the fact of it; the appearance of justice, not the actuality of it; a symbol of justice, not a system of it. If you want to know how John Yoo could with, apparently, a clear conscience make legal-sounding arguments allowing for torture and virtually unrestrained presidential power to engage in it, just consider the system that produced him.
Footnote: I'm sure that some "expert on legal ethics" could present me with well-digested, shopworn scenarios creating intractable moral choices regarding attorney-client privilege. But as lawyers themselves will say, hard cases make bad law; that is, situations where the choice is hard are bad guides for sweeping general principles. But what has been done instead in cases such as those in the NYT article is almost the opposite: to establish sweeping, rigid doctrines in order to avoid the hard choices altogether. That may be convenient. It may be legal. But it is not just.
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