Ethics and the law – when can a lawyer “dob in” a client?

By Legal Eagle

A while back, a non-lawyer friend asked me out of curiosity if a lawyer could (or should) report a client to authorities if the lawyer knew or suspected that client was committing fraud. It’s a little complicated. One’s first thought may be: “Surely the primary duty of a lawyer is to uphold the law, and therefore the lawyer should report the client to authorities?” But in fact, there are competing duties to the court, to society and to one’s client. A lawyer’s communications with a client are subject to a duty of confidentiality, and accordingly, if the lawyer “dobbed in” the client to authorities, this may breach the legal code of ethics. The rationale behind the duty of confidentiality is that clients would be reluctant to give full and frank instructions or to trust their lawyers if there was not such a duty. Thus, there is a complex weighing-up process of different interests and duties, and the “ethical” response is not always clear.

It seems that this precise issue has recently arisen in the US in a number of cases. As this New York Times article relates, a lawyer who breaches client confidentiality may face the risk that he is guilty of professional misconduct, even if the client is dead and the breach may lead to the freeing of an innocent man.

The case involved the murder of a couple in Fayetteville, North Carolina in 1984. Three men were arrested and charged with the murders: Jerry Cashwell, Lee Hunt and Kenneth West. Staples Hughes, a state defence lawyer, was assigned to defend Cashwell. During an initial interview, Cashwell confessed to Hughes that he had committed the murder by himself, with no assistance from the other men. Cashwell committed suicide in prison in 2003. Hunt was also convicted with murder, and is still subject to life imprisonment. He has always protested his innocence. He provided an alibi at trial, but was convicted in part because of a scientific analysis called comparative lead bullet analysis, which tied the crime scene bullets to a box of bullets owned by Hunt. This analysis is now said to be misleading and unreliable. 

Hunt’s lawyers sought to overturn his conviction before the Superior Court in North Carolina by challenging the bullet evidence, but also by leading evidence from Staples Hughes as to his former client’s confession. As Hughes commenced giving evidence, the judge warned him that he was going to have to report Hughes’ breach of client confidentiality to the State Bar as professional misconduct. This was despite the fact that Cashwell was dead. In the event, Hughes was cleared of professional misconduct.

However, the case raises the tension of the lawyer’s duty to his or her client and the lawyer’s duty to society. In the US, there seems to be agreement that client confidentiality can be breached where it would save someone from execution, but it gets a little more hazy when the person is not sentenced to death, but to life imprisonment. If the client is still living, it seems confidentiality must be maintained. I do think that Hughes did the right thing by testifying in favour of Hunt; Cashwell could no longer be harmed by the breach of confidentiality, as he was dead.

I tend to think that if I had been in Hughes’ position in the first place, I would have told Cashwell that he should exonerate the other defendants. Perhaps Hughes did tell Cashwell to do so. We don’t know. I do know that I would probably have refused to act for Cashwell thereafter – yes, it’s true, I don’t have the stomach to be a public defence lawyer. I would also have sought advice from the Ethics Committee of my law society, so that I could be more certain that my actions were in good conscience and in accordance with ethical legal practice. But it’s a very difficult problem. No wonder I’ve always avoided the practice of criminal law with a 10 foot barge pole – it’s issues like these which have always troubled me.

(Other sources used: Innocence Network and The News and Observer)

2 Comments

  1. Evan
    Posted May 8, 2008 at 11:48 am | Permalink

    Interesting matter.

    I also believe Hughes did the right thing, both morally and in terms of his duty to his late client.

    I can’t accept that privilege persists even after a client’s death. That’s gotta be nonsense. Looks like the North Carolina State Bar saw it the same way.

    Hizzonner sounds like a real prick, though. One of your black-letter Barwick types, no doubt.

    As for continuing to act for some turd who ‘fesses-up to you that he dunnit, there’s no problem with that. Provided, of course, he doesn’t hop the Box and try to give false testimony.

    You can’t let him do that.

  2. Posted May 27, 2008 at 9:33 pm | Permalink

    I confess not to having thought too deeply about this hoary old chestnut before, but on reading this post, I wondered — If a man is guilty and tells you so, why should there be any confidentiality in that? Why should an officer of the court assist the guilty criminal in his trial after solemnly pleading that he is not guilty? I know the lawyer cannot put forward any positive case which suggests the client is innocent, and must be content with putting the Crown to its proof. But the safeguards of the criminal law are mainly against wrongful conviction. If the client is guilty, there is no danger of that.

    Not everyone who says they are guilty is guilty of course. Some people are nuts, some would prefer to avoid jail than to avoid conviction, and some people don’t understand that though they did what they are alleged to have done, that does not in law make out the crime they are charged with. But those concerns do not justify the obligation of confidentiality in the solicitor, or the privilege enjoyed by the criminal. They require some lesser set of safeguards.

    It might be said that if there were no confidentiality in admissions of guilt, no one would tell their solicitors they were guilty, and that would be socially undesirable because at least now lawyers whose clients tell them they’re guilty are significantly constrained in how they can put the clients’ case. But the response is obvious: people already have an incentive not to tell their solicitors that they are guilty.

    Why is it permissible for a lawyer to assist a man she knows to be guilty with his plea of not guilty, and subsequent defence but it is not permissible for the same lawyer to suggest alternative case theories which explain all the proven facts but inconsistent with her instructions in order to cast doubt on the Crown’s case? There is no bright line between the two scenarios is there? Isn’t it a question of degree?

2 Trackbacks

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