Friday, October 7, 2011

DC to consider rule to require disclosure of information to remedy wrongful conviction

The The District of Columbia Rules of Professional Conduct Review Committee is proposing changes in the D.C. ethics rules.  A short summary of all the proposed changes is available here.  A detailed report including the text of the proposed rules and the committee's report is available here.

The most interesting one is the proposal to adopt a new Rule 8.6 "to require all lawyers in the District of Columbia who possess information that raises a substantial question about the innocence of a convicted person to disclose that information to a court, the convicted person’s counsel, and the convicted person, in the absence of other confidentiality obligations of the lawyer."

As the rule states, however, it does not require disclosure of confidential information.  Thus, this rule would not change the result in a situation like Alton Logan's case.

Given that courts often use the text of the rules to express duties in tort law, one - perhaps unintended - consequence of approving this rule will be to open the door to civil liablity for not disclosing the information. And from there, it might not be long before courts begin to consider extending such a duty to cover other information a la Tarasoff v. Regents of the Univ of California. as in Hawkins v. King Cty. Dept. of Rehabilitative Services, 602 P.2d 361 (Wash. Ct. App. 1979).

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