Imagine that you represent a man accused of a bank robbery. He is in jail and you’re in your office. You receive a letter from this client in an envelope marked “Legal Mail”. That envelope contains within it another sealed envelope with a letter directing that the second sealed envelope be delivered to the client’s cousin. You:
a. Leave the envelope sealed and tell the client you won’t/can’t send that on, or;
b. Open the envelope, read the contents, discover that he’s attempting to fabricate an alibi and tell the client that you won’t forward the letter and that he shouldn’t be sending letters like that, or;
c. Open the envelope, read the contents, discover that he’s attempting to fabricate an alibi, turn the letter over to the prosecution, move to withdraw from representation and then testify against the client at his trial.
Corvet T. Williams’ lawyer Dennis Ryan chose option (c). At the criminal trial:
He testified that the letter was a “blatant attempt to get me involved in smuggling something out of the jail that in turn would be a potential instrument for obstruction.”
Williams appealed, claiming that his former lawyer had violated confidentiality, the attorney-client privilege and rendered ineffective assistance of counsel. The 7th Circuit, in an opinion [PDF] written by Judge Posner, clumsily rejects these claims.
First, Judge Posner asserts that a communication intended to be revealed through a third party is not confidential. Putting aside the fact that it was never revealed to the third party, but I’m not too concerned about this holding. He then moves on to the privilege. At the time of this incident, the following rule was in effect:
LR83.51.6. Confidentiality of Information
(a) Except when required under section (b) or permitted under section (c), a lawyer shall not, during or after termination of the professional relationship with the client, use or reveal a confidence or secret of the client known to the lawyer unless the client consents after consultation.
(b) A lawyer shall reveal information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm.
(c) A lawyer may use or reveal: (2) the intention of a client to commit a crime in circumstances other than those enumerated in LR83.51.6(b);
Curiously, the Northern District of Illinois has now adopted the ABA Model Rule which allows for such disclosure only when necessary to prevent death or substantial bodily harm, the rule that is in effect in Connecticut1.
The rule in effect at the time clearly provides for a discretionary disclosure on the part of the lawyer. There was no danger of the client committing an act that would result in death or serious bodily injury. So under sub (c) above, the lawyer didn’t have to do anything. He just chose to, for reasons that are unknown but can be easily surmised.
Judge Posner goes to great lengths to argue that while the lawyer could have simply talked to his client and dissuaded him from attempting to commit a crime, he certainly wasn’t required to try that first. As the dissent by Judge Hamilton persuasively argues, the consequences of such a rule are disastrous for the adversarial process.
Our adversarial system remains afloat partly because of a certain amount of begrudging trust placed by the defendant in his lawyer – to speak nothing of the always present tension between the indigent defendant and his public defender. To approve, without a hint of reproach, the actions of a lawyer who goes running to the State to tattle on his client serves to solidify the long-standing rumor that defense attorneys are nothing but another cog in the wheel of the prosecutorial system, beholden to their powerful overlords for scraps of food.
We all have encountered clients who have monumentally stupid ideas and theories of their cases. Some might even attempt – in a false sense of street bravado – to boldly proclaim that witnesses won’t show up to testify. It’s our job to protect the client’s interests, their rights guaranteed against the Constitution and, more often than not, protect them from themselves. After all, if criminal defendants were capable of sound judgment and restraint, most of us would be in another line of work.
I’m not saying that the lawyer should have continued to represent Williams. Certainly he felt used and duped by this unusual occurrence (he must be new to criminal defense), but the objection is in the manner in which he then proceeded. Had he talked to Mr. Williams, explained his position and then simply sought to withdraw, citing confidentiality, letting Mr. Williams get on with his criminal trial, this wouldn’t be an issue. Rather, his first reaction was to file a motion to withdraw, with an affidavit that laid out his own client’s criminal conduct. Both the majority opinion and the dissent cite the following sentence from Nix v. Whiteside as proof of support for their positions. You decide which is the correct interpretation:
“It is universally agreed that at a minimum the attorney’s first duty when confronted with a proposal for perjurious testimony is to attempt to dissuade the client from the unlawful course of conduct.”
The answer is clear to me, but Judge Posner disagrees and he may well be a smarter man than I.
Ryan’s duty of loyalty lay not with his client, but with the Court or perhaps his own ego. In that, he failed at the very thing which he was retained to do: represent his client.
The system cannot persist if we place our own interests above that of the client. How is the system to remain adversarial if lawyers like Ryan are permitted to turn on their clients at the slightest provocation. We already operate under a world of mistrust and apprehension. We are charged with being arms of the State, pawns of the prosecution and conviction-pushers. Pejorative terms like “public pretender” are thrown about with alarming regularity. Yet, it would take the threat of contempt to even get me on a witness stand to testify against a client for something of this nature. And even then, some would demur.
Williams may well be guilty of the robbery and the attempted perjury and tampering of a witness. He didn’t need his lawyer, in whom he placed his faith and confidence, to assist in that judgment. Ryan failed Williams and he failed the system. Would you trust him to represent you?
H/T: Legal Ethics Forum.
1What’s interesting about the Connecticut rule is subsection (c)(2):
(2) Prevent, mitigate or rectify the consequence of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used;
I don’t see this in the Model Rules, but I think it pertains to an ex-post facto act by the lawyer. For example, if Williams’ letter had been sent on and the witness had falsely testified to the alibi and Ryan discovered if after the fact, he may reveal the confidence to undo his being used as a conduit for criminal activity. But certainly not before.