Sunday, June 28, 2020

New Jersey considers adopting exception to duty of confidentiality to prevent or remedy wrongful convictions

Long time readers of this blog might remember an incident reported a few years ago out of Chicago that involved two lawyers who came forward to disclose that they knew that a man named Alton Logan had been convicted (and sentenced to life) 26 years earlier for a crime he did not commit.  The lawyers had not disclosed the information sooner because they had obtained the information from one of their own clients, who had confessed to them that he had committed the crime for which Alton Logan had been convicted.

At the time of the confession, the lawyers tried to obtain consent from their client to disclose the confidential information, but they were only able to get him to consent to disclose after his death...  and then he proceeded to live for another 26 years.

When the lawyers finally came forward, the incident got national coverage (including a segment in the TV show 60 minutes) and sparked a debate on whether states should recognize an exception to the duty of confidentiality to allow lawyers to disclose information when reasonably necessary to prevent or remedy a wrongful conviction.

Attempts to amend the ABA Model Rules for this purpose have never progressed very far within the ABA, but there are three states that currently recognize such an exception (Massachusetts, Alaska and North Carolina).  Soon there may be four.

The New Jersey Supreme Court recently published a task force report with a recommendation to adopt an exception to the duty of confidentiality to require lawyers to disclose information that demonstrates that an innocent person has been wrongly incarcerated.

The recommendation, however, was not unanimous and there is a strong dissenting opinion. Also, the task force members who were in the majority were divided on whether the exception should be mandatory or permissive.

You can read the report here.

Recognizing that lawyers who reveal client confidences to remedy a wrongful incarceration necessarily harm their own client, the majority concludes that that disclosure of such information strongly serves the interest of justice and enhances public confidence in the criminal justice system. "On balance," the report states, "an exception for this purpose is justified because the suffering of the wrongly incarcerated person is great, while the universe of confessing clients is likely to be exceptionally small."

The exception to the duty of confidentiality related to wrongful convictions in two of the three states that currently have such an exception is permissive.  In North Carolina, there is a mandatory duty to disclose, but it has such restrictions that make the duty a very limited one.

Interestingly, the New Jersey task force members who support the adoption of a new exception to the duty of confidentiality were divided on whether the new rule should be mandatory or permissive.  The majority proposed a mandatory duty to disclose, but again, this was not a unanimous position.

In contrast, a strong minority of the task force, including representatives of the Offices of the Attorney General and Public Defender, opposes a new exception to the duty of confidentiality arguing that lawyers should not disclose (much less be forced to disclose) information that is likely to expose their clients to criminal liability because the proposed exception would require lawyers not only to betray their clients, but also to inflict direct harm on them.

This is a very difficult question for me because I can see the strengths in both sides of the argument and, for that reason I have changed my mind back and forth thinking about it over time.

Given the inadequacies of our criminal justice system, I find the argument for an exception compelling but I can also see the obvious clash with one of the most fundamental values that we hold as a profession.

So, help me decide.  What do you think?

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