Tuesday, February 7, 2012

DC considers new rule to allow disclosure to remedy wrongful conviction

The District of Columbia Bar is considering enacting a new rule (designated as Rule 8.6) to require 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 the court, unless the information is protected by the duty of confidentiality.  The rule expresses good intentions, but because it is not crafted as an exception to the duty of confidentiality, I am afraid it will prove to be of minimal value.

It is interesting to note that the ABA Model Rules impose a duty on prosecutors to disclose information that suggests a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted (Model Rule 3.8(g)), but DC has not yet adopted this section of the rule and the proposal for DC Rule 8.6 makes the point that if there is going to be a duty to disclose this type of information it should apply to all lawyers, not just to prosecutors.

DC's proposal is an approach to the issues raised a few years ago by the Alton Logan incident, made famous by a 60 minutes segment (available here).  As you probably remember, in that case two lawyers were told by one of their clients that he (the client) was guilty of the crime for which Mr. Logan was being tried separately.  The lawyers tried to get their client to allow them to disclose the information but he did not consent.  Eventually, the lawyers convinced the client to allow them to disclose the information after the client's death.  He agreed to that, and then proceeded to live for 26 more years which Mr. Logan spent in prison for a crime he did not commit. 

Shortly after the former client's death, the attorneys disclosed the information and Mr. Logan was released.  

Partly in response to this incident, the Ethics Committee of the ABA’s Criminal Justice Section ("CJS") prepared a proposal to amend Model Rule 1.6 to recognize a new exception to the duty of confidentiality which would have allowed an attorney to disclose confidential information about a deceased client that the lawyer believed necessary to prevent or rectify a wrongful conviction. However, the proposal received little support.

A second proposal was then drafted to amend paragraph six of the comment to Model Rule 1.6 to limit the new proposed discretionary disclosure even more by allowing it only in cases where an individual was sentenced to death for a crime that he did not commit and to explain the discretion should be exercised very rarely.  This second proposal was also rejected.

The proposal in DC is fundamentally different because it is actually not an exception to the duty of confidentiality.  Proposed section 8.6(b) seems to say that if the attorney has a duty to keep the information confidential, then the attorney has to abide by that duty.  Interpreted this way, the new rule really would not provide a solution to the dilemma in a case like Alton Logan's.  As it is written, the rule would only apply to a lawyer who obtains the relevant information in a way that is not covered by the duty of confidentiality and it is hard to imagine how that would be the case. 

Here is a link to the current text of the proposal.

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