A Problem in Privilege II

Facts of the case

Thesis: The attorneys took the best course of action under the circumstances. The confidentiality rules did not fail here.

Alternative courses of action

Breaking the confidentiality rules

Suggestions from this wiki

The central problem: immunity for Wilson

Should the rules be changed?

The Massachusetts rule

Why that rule would do more harm than good

1. Facts of the case

In January 2008, defense attorneys Dale Coventry and Jamie Kunz disclosed an admission made by their client Andrew Wilson, which indicates that an innocent man, Alton Logan, has spent 26 years in jail for a murder that Wilson committed. Wilson made this admission to his attorneys in 1982, shortly after Logan had been charged with the murder. He did not confess unbidden; the attorney for Logan's codefendant Edgar Hope had approached Coventry and Kunz, informing them that his client claimed Wilson was the killer and that Logan had nothing to do with the crime. Coventry and Kunz asked their client if he was the killer. According to Kunz, "Wilson said, 'Yeah' or 'Uh-huh,' nodded, grinned, and said 'That was me.'"

Acting upon this revelation, Coventry and Kunz drew up an affidavit stating that a privileged source had confided to them that Anton Logan was innocent. Then they obtained consent from Wilson to release the information upon his death. When Wilson died a few months ago, the attorneys released the affidavit. Logan now awaits a ruling as to whether he will be granted a new trial. Although it is abhorrent that an innocent man has now languished in jail for 26 years, Kunz and Coventry took the best possible course of action. Additionally, the rules of privilege and confidentiality operated successfully here, even if the criminal proceeding failed.

2. Alternative courses of action

As an initial matter, we can rule out the possibility that Coventry and Kunz should simply have broken the confidentiality rules. First, their affidavit would not have been admissible in a retrial of Logan because of the rules violation. Releasing the affidavit would have created a story for the media, and public opinion could have influenced the governor to grant clemency, but even if this action would have helped get Logan released, it would have been an ethical and moral breach of the confidence that Kunz and Coventry promised to Wilson. Further, it would have placed Wilson's life in jeopardy; if the prosecution had subsequently decided to try him, he could have faced the death penalty, since he was already in prison for a different murder. It is true that the affidavit would not have been admissible in a trial of Wilson, but Kunz and Coventry would still be reneging on their duty to not only avoid placing Wilson in legal jeopardy but to act as his zealous advocate.

My colleagues have offered several other ideas on this wiki. AdamCarlis suggested convincing the district attorney that it would be politically unwise to prosecute Logan, or finding a piece of evidence that would undermine the state’s case without implicating Wilson. Adam also noted, however, that such approaches could only be undertaken with Wilson’s permission, since they could expose Wilson to renewed investigation. ChristopherBuerger proposed identifying a procedural error (which error would have to be prejudicial, as Adam noted) that could allow Logan’s conviction to be quashed on appeal. But this suffers from the same problem as Adam’s suggestion.

Ultimately, as TheodoreSmith stated, under any scenario in which Kunz and Coventry assisted in Logan's exoneration, they would be violating their duty toward Wilson unless Wilson received immunity or the case were considered irrevocably closed by the police and prosecutor. We can presume that a prosecutor would be loath to offer such immunity. This is where Christopher’s suggestion of playing on the prosecutor’s personal or political ambitions might prove useful, by doing things such as investigating for personal information she would like kept quiet. Perhaps such blackmail could be used to procure Wilson’s immunity.

Barring that type of improbable scenario, and presuming that immunity would otherwise be unobtainable, Kunz and Coventry pursued their best remaining option. They honored their promise to Wilson, but were still able to get Logan released eventually.

3. Should the rules be changed?

The Chicago Sun-Times has urged Illinois to consider adopting a provision such as Massachusetts’ Rule of Professional Conduct 1.6(b), which permits an attorney to reveal confidential information “to prevent the wrongful execution or incarceration of another.” While the exception that allows an attorney to disclose confidential information in order to prevent wrongful execution is well-accepted, Massachusetts is the only state that allows such disclosures in cases of wrongful incarceration.

Illinois would not be well-served by adopting such a rule. Giving the attorney such latitude to reveal confidential information turns the attorney-client relationship into a potentially adversarial one. As defense attorney William J. Martin notes, "If a lawyer is an agent for the police or law enforcement, that's just a total distortion of what the adversary system is all about." Under a Massachusetts regime, if lawyers began confronting their own clients in order to exonerate other people, clients would simply conceal their secrets. Of course the same could be true with regard to the "wrongful execution" exception, but that rule is defensible on the ground that execution is an irreversible mistake. Still, that exception may be unwise for the same reason that the Massachusetts exception is.

This case presents an instance where the confidentiality rules have helped unearth the truth rather than conceal it. Without the privilege rules, Logan's innocence would likely have not been revealed. The system failed by convicting Logan to begin with, and justice could have been meted out long ago had the state granted Wilson immunity. Despite those real system failures, we should not blame the rules of confidentiality for this travesty, and we should laud Coventry and Kunz’ efforts in obtaining Wilson’s consent to release his admission after death.

-- TedKreit - 04 Apr 2008

• All very well, but you have only shown that Coventry and Kunz could not have released the affidavit they drew concerning Wilson--that, and disposed by the way of some suggestions by colleagues that were, frankly, irrelevant. You have not shown that Coventry and Kunz had no better way to handle the situation originally. They are either to be credited, as you try to credit them, with having secured eventual justice, or they are to be criticized for not finding a way to secure the release of Logan without prejudicing their client in the first place. You have acquitted them on that point hastily, without analysis, and, arguably, wrongfully. At any rate you have not considered the subject thoroughly, as I told you before. It's not my job to tell you what you should have looked for: you're the one claiming exhaustive thinking here. Drop the Massachusetts bullshit, the "some have claimed, ... but I don't think so" march-up-march-down space-wasting, and put your head back in the situation as it stood when the decision to draw the affidavit was made.