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July 3, 2009 in
Recall the story of the two Chicago PDs whose client, Wilson, confessed to them that he had murdered a security guard, and that Logan, who was doing life for the murder, had not. The two lawyers, Jamie Kunz and Dale Coventry, waited till Wilson died in prison, 25 years later, to reveal the truth and set Logan free. They spoke in May at the ABA’s 35th National Conference on Professional Responsibility in Chicago.
From the June, 17th BNA Criminal Law Reporter:
Kunz told the audience that he has thought frequently and critically about Logan’s fate and Kunz’s part in it. He said he still does not doubt that keeping Wilson’s confession secret was an obligation he had to honor. Under the ethics rules, he said, “I don’t think we had a choice.”
But, just as emphatically, Kunz said he agrees with that professional responsibility, because “by golly, I don’t want to have a choice.”
Kunz said that if the ethics rules give lawyers in his and Coventry’s position discretion to reveal a client’s confidential confession, it may make their dilemma worse because counsel will feel a strong temptation to do so and thus put at risk for life imprisonment or execution a client who trusted them to protect him from just that risk. “I’m going to fight any rule change that puts me in [that] position,” Kunz said.
They didn’t have a choice? This is an outright lie. Kunz had a choice; any time we are self-aware enough to say, “I don’t have a choice”, we have a choice: obey the law, or risk its sanction. Instead of sleeping for 25 years with Wilson’s confession under his pillow (I wonder: how did he sleep?), he could have come clean and faced the music, however unpleasant.
Sure, the legal answer to the question Kunz faced was cut-and-dried. But there’s a difference between the law (disciplinary rules are law) and ethics. When the law and ethics clash, a person has a difficult decision to make: do what’s right, or do what’s legal? Both paths necessarily have costs.
Kunz’s ethical position was not nearly as clear as his legal position. It’s good to keep an innocent man from spending his life in prison, and it’s good to maintain a client’s confidences. Each has very high value. Either choice should weigh on a lawyer’s conscience. Ethical decisions are often like this; the right choice is the one that weighs less.
That right choice might have been to violate Wilson’s trust and set Logan free. If so, among other costs (Wilson might have been punished for the murder) there would have been a legal cost: at its unlikely extreme, this cost could have included Kunz or Logan losing his law license, so that Wilson’s case was his last case.
Ethics are navigational tools for rough seas. The whole point of having ethics is that with them we make the correct choices when times are most difficult. If we avoid or surrender the tough decisions, we don’t need ethics.
To abdicate an ethical decision in favor of a legalistic proscription is not an ethical act. In wishing for rules to relieve him of the responsibility for difficult decisions, Kunz displays cowardice worthy of a functionary of the Third Reich: Kunz was just following orders; he was glad to have the orders to follow so that he didn’t have to have ethics and didn’t have to count the cost; and, moreover, he wouldn’t have it any other way.
Maybe Kunz’s cowardice is not to blame for Logan spending 25 more years in prison than he should have. Maybe, if Kunz had consulted his own ethics, the result would have been the same. But the cost of the decision that he made was that Logan spent the better part of his life in a cell. Because of what Kunz and Coventry did, every time they were having dinner with their families or playing with their children Mr. Logan was locked in a box for something that they knew he had not done.
What would have happened if Kunz had acted ethically and made the decision as a human being rather than as a cog in the government’s machine? He might have done the same thing, and then spent the next 25 years bearing the weight of his decision, properly accepting part of the blame for Logan’s imprisonment. Or he might have done otherwise, and then spent 25 years properly accepting the sanction for violating the law. But he relinquished his ethics to the law, and by golly we’ll never know.
Some may say that I’m being unduly hard on Messrs. Kunz and Coventry. I say not. This weekend we celebrate the actions of a gang including merchants, farmers, doctors, and, not least among them, lawyers, pledging not only their lives and their fortunes, but also their sacred honor to doing what was right, in violation of law and defiance of government. Mr. Kunz and Mr. Coventry, eager to substitute the dictates of the law for those of their own hearts, sold their honor cheaply. Mark the contrast.
Excellent piece Mark.
On a much lower (no pun intended) ethical note: Texas has yet to adopt any version of the 2000 ABA ethical rules relating to having sex with a client. Yeah – that’s right couch fees. However, if a spiritual advisor, medical doctor or mental health provider does so under certain conditions they could get prison time and have.
The Supreme Court presently has two versions to hopefully present to the membership by 2010. Is a “client” no less dependent on a lawyer for their freedom, or custody of their kids just as people in the categories listed above?
Remember: I’m not even talking about a penal code provision – only a mere bright line ethical rule. Now the Bar “Police” have to be crafty and carve out an offense such as unconscionable fee, or conflict of interest. To be sure: nearly all the other States have adopted some version of the ABA standard:
Rule 5.07. Prohibited Sexual Relationships
(a) A lawyer shall not condition or threaten to condition representation of a client or the quality of legal services provided or offered to a client or prospective client on the agreement of any person to engage in a sexual relationship with the lawyer.
(b) A lawyer who personally represents a client shall not commence a sexual relationship with that client during the existence of the lawyer’s professional representation of that client if that sexual relationship exploits the client’s emotional dependency on the lawyer’s professional character as a legal adviser, is reasonably likely to significantly impair the lawyer’s ability to represent the client competently, or otherwise prejudices or damages the client or the client’s interest.
“legalistic proscription”??
Since when is keeping atty-client communications privileged merely a “legalistic proscription”??? I don’t know about TX, but when I took my oath as an attorney, I swore to keep client communications secret.
The attorneys had a duty to their client, first and foremost. They owed no direct duty to the wrongly imprisoned person.
Your moniker is an insult to ape literacy. Have American reading skills deteriorated so far? It’s like you skipped entire paragraphs in my post.
Or are you just trying to ignore the distinction between law and ethics, in vain hope of picking a fight you can win?
Either way, congratulations: you are this post’s least common denominator.
If Kunz had sworn to “preserve inviolate the secrets of [his] clients” as you did in Florida, I suspect that he would have mentioned that in justifying his actions. We could then discuss whether having taken that oath trumps all other ethical considerations. The answer is by no means obvious—our hypothetical Nazi functionary swore an oath to Adolf Hitler—but there is honor in keeping one’s word that is wholly lacking in obedience to the law.
Lawyers have ethical duties as human beings that predate their duties as lawyers. Whether you are a lawyer or a poolboy, it is unethical to allow an innocent man to languish in prison for 25 years when it is in your power to prevent him doing so. Whether that ethical consideration (which is not extinguished with bar licensure) trumps others is an important question, and therefore a difficult one.
Kunz’s answer might have been the same had he followed his ethics rather than the law. But he took the easy route instead. Punting on a difficult ethical question by referring to the law—or to an oath you took before the situation arose—is unethical and cowardly.
(Thank you for the opportunity to rewrite my whole damn post for a lower reading level.)
Bravo, Mr. Bennett. There is natural law grounded in natural rights, and then there are government laws manufactured by politicians and judges (including the Founding politicians). Relative to the former, the latter are of no moral obligation whatsoever, although a prudent man will not completely ignore the likelihood of practical consequences for violating the latter in his moral calculus. On the other hand, one should arguably even go out of one’s way to violate unjust man-made laws in the exercise of one’s natural rights, to diminish public respect for such laws.
I had previously assumed that the mere expression of the above ideas could subject an attorney to discipline (albeit in violation of the First Amendment), given that as a condition of admission to the bar we are required to swear an oath to “support the Constitution of the United States” and to “maintain the respect due to courts of justice and judicial officers.” However, in looking closer at my state’s Rules of Professional Conduct, it seems that the Rule which comes closest to being applicable (unless I’m missing something) is the one that states: “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.” According to the Comment on the Rule, it is only “false” statements by a lawyer which can “unfairly” undermine public confidence in the administration of justice. (Interestingly, Scalia arguably violates this Rule in his written opinions criticizing the opinions of other Justices on a semi-regular basis.)
Refraining from making a statement calling into question the “integrity” of judges “with reckless disregard as to its truth or falsity” should be easy enough, although I agree with the dissenters in the linked judicial opinion that many such statements would be protected by the First Amendment. The moral dimension of judicial decisions and orders is not by a long shot exhausted by the putative “integrity” of the judges making them.
I think your cut and dry analysis leaves out a big part of why the attorney-client privilege is the strongest privilege in the country – because we want clients to trust their attorneys. What do you advocate, a case-by-case analysis by individual lawyers with vastly different moral compasses, or a case-by-case analysis with your moral compass. More is at stake than just the immediate case and I think if you chose to take such a hard line against these two you have an obligation to address the consequences of having lawyers break this privilege whenever they feel that their own qualms interfere with the mandates that protect clients encourage them to be honest. What of the newly minted mother who picks up a client who tells her where the body of the little girl the parents have been desperately searching for is – should she break her privilege? I guess I’m just not a huge fan of discretion when it comes to something of such importance that bears on so many. I hate the result, and there should be an alternative mechanism for avoiding this dilemma, and to be honest I don’t necessarily disagree with you. But there can be honor in sacrificing the something for the whole – surely you appreciate this, ‘you don’t burn down the constitutional barn to kill a rat,’ and nor should you break your duty because you can’t sleep and it produces the same result. To take it a little farther, how is this different then a cop lying on the stand to convict someone that he, a) knows did it, and b) knows will get off but for his lie? Would his lie be inherently immoral, or would it be the right thing to do because the result in the particular instance was more favorable?
All of this would be an appropriate part of the ethical discussion that Kunz should have had, at least with himself. And, as I’ve suggested repeatedly, he might have followed the same course of action after going through the appropriate discussion.
So why is it a problem that he renounces ethical responsibility for his actions (and “I had no choice” is a clear renunciation of ethical responsibility)?
It is a problem because it is founded in a lie. We always have a choice. My next post will demonstrate that, and will explain why it’s wrong ever to allow the rules to make ethical decisions for us.
So I guess my point is, and I’m embarrassed to say, is that I don’t feel entirely comfortable leaving decisions like this in the hands of just anyone. You know how many incompetents are out there and sometimes I’m glad they have clear rules to follow. That’s all, thanks for your post.
Mr. B., Honor for Sale, love the piece, hate the topic because I fear it’s running rampant in Texas. These questions come to mind. * When a lawyer / attorney has a client that he knows to be 100 % innocent of the charges ( but is on probation) is it his duty to fight to the very end or plea out the client for 10 yrs. during luch recess & tell no one what he knows ? ( It has to be unethical to knowingly advise & allow your client to plead nolo contendere to a crime the police report alone shows him to be innocent of) In this scenerio, what should ones ethical responsibility be to the convicted from that moment on in regards to being a human first & so on ? Have you considered these two Bozos for this months award yet? Thanks.
More is at stake than just the immediate case and I think if you chose to take such a hard line against these two you have an obligation to address the consequences of having lawyers break this privilege whenever they feel that their own qualms interfere with the mandates that protect clients encourage them to be honest.
This is the same question I have. Are you honestly advocating that lawyers break their oath, and/or violate ethical rules any time they feel the “higher law” compels them to do so? I haven’t seen any cite for the natural law upon which the higher law in this case is based. For the record, I agree with you, but I don’t see it as so self-evidently true that it’s beyond debate.
Maybe I missed something, but how would their testimony about what their client told them get into evidence to help the innocent fellow? Isn’t it hearsay? And just because they violate their ethical duties, doesn’t the court still have to uphold the privilege and exclude it? If you have a link to an analysis
Also, you seem quite critical of the process by which these gentlemen reached the conclusion they did. Was there something else besides this recent speech/presentation that gives us some insight (beyond the armchair kind) into their thought and logic process?
I read somewhere recently that there are some truths self-evident beyond any need for a cite. That it is good and ethical, when it is in your power, to keep a man from spending 25 years in prison for a crime that he did not commit is, I believe, one of these truths.
I’m taking for granted that the lawyers’ testimony would have freed Mr. Logan as effectively in 1983 as in 2008. If you want to do the admissibility analysis, have at it—one possible outcome would have been that Wilson’s statements to Kunz were admissible in Logan’s favor, but not against Wilson. And oh, by the way, the attorney-client privilege survives the client’s death (by common law, which I believe Illinois follows in such matters), so if it was unethical for Kunz to reveal Wilson’s confidence in 1983, it was unethical in 2008.
You are correct that my critique is of the process, rather than the conclusion. I think Kunz’s craven statements of gratitude at being compelled to a course of action by a disciplinary rule gives us all of the insight into the process that we need.
I haven’t weighed until now, but I’ve wondered about Linus’ question as well.
Certainly you would agree (I think you have as much said so already – or that I can infer it) that if breaking the DRs would almost conclusively not have helped Logan, then not breaking them was the correct course of action.
Let’s not forget that prosecutors, who as a group don’t let insignificant details like proof-of-actual-innocence-by-way-of-DNA deter their efforts to keep a he-had-a-jury-trial-didn’t-he? innocent defendant in prison, might not have cared a whit about the “supposed confession” and might well have figured out a way to keep Logan in prison.
Or maybe not. But it’s gotta factor into the decision.
Also:
The attorneys say they were so tormented over Logan’s imprisonment that they convinced Wilson to let them reveal that Wilson was the real killer after Wilson’s death.
Assuming that’s true (there doesn’t seem to be an affidavit to that effect in the “locked box”) it’s not like they did nothing. And it solves the 1983/2008 conundrum.
Also the lawyers were apparently retired when they came forward, so I tend to take them at their word that their main concern was not simply “Ouch, I might be disbarred”.
But to the extent that your point was that one of the lawyers publicy stated “I had no choice”, when clearly he did… I agree with you.
Dammit. This is one of those comments that went on so long that I’m regretting not just posting it on my own damn blog :)
What clued you in that that was my point? Did you happen to notice that that was my entire point? That I led off by saying that “I had no choice” was a lie, and closed with the lawyers’ eagerness “to substitute the dictates of the law for those of their own hearts”? That I never said or even implied that the outcome would have or should have been different if they had followed ethics instead of the law?
And you’re one of my sharper readers. I despair.
Sorry, accidentally clicked submit while editing. That second paragraph should finish with “(as I’m sure someone has done it on this case) that’d be great.”
I think that if someone feels that they need to hide behind a rule, perhaps because they themselves feel insufficient to weigh the pros and cons, then we might instead applaud their ability to not step into territory that has been thoroughly thought out by others. On the other hand if someone, such as the author, decided to abandon the rule, then perhaps we could look into the justifications for your doing so. To me this is analogous to a rule of evidence issue – we have commentators who have spent many years weighing and carving the rules into what they are today, and it would be absurd to replace that collective wisdom with judicial discretion. When judges begin with their moral compass and twist the rules to achieve the result they want or that they feel is just, they compromise the integrity of the system. I don’t see how someone who feels personally inadequate to make the decision himself, and instead defers to the long established rules, should be seen as a coward.
Mr. B., Thanks for taking time to re-explain your post to death to the ADA’S (former included) & defenders of the dynamic duo in which the post is about. I think one of them (replies) is actually one of the duo. Surely no C. D. lawyer / attorney worth his salt would publicly announce his / her true opinon in this matter (like some have) for it could backfire when & if potential clients research prior to hiring. You have to wonder how some sleep at night, then of course some sleep at the defense table just fine. Please consider some future post re: the wrongfully convicted here in Texas (especially the ones that don’t deal with DNA) obtained with the assistance of our dear ol freind Nolo Contendere.
An imaginary letter from Messrs. Kunz and Coventry to Mr. Logan:
Dear Mr. Logan,
Please allow us to introduce ourselves. We represented Mr. Wilson. He confessed to us back in 1983 that he committed the crimes for which you were punished. We decided not to reveal the information until after he died, meaning you spent 25 years in prison rotting for his deeds. Thank you for your understanding.
Despite unspeakable suffering you probably experienced at the hands of some of the most violent inmates in the State of Illinois, you will be proud to know that we upheld our oath and did not violate attorney-client privelege. We made the CHOICE, 25 years ago, that allegiance to an oath and to our client was more important than honor, integrity and truth. We realize it was inconvenient for you to miss weddings, funerals, birthdays, dinners at home with your family, going to sleep in your own bed and the like. However, we made a CHOICE that your freedom was less important than our client’s.
Once our client died, we still CHOSE not to reveal the truth until a judge told us it was okay. We are now ready to receive the thanks and the gratitude owed us by the State, our brethren in the legal community, and by YOU. While your incarceration was probably a little unpleasant, we have honored our oath and committment to a set of rules not based on justice and truth. Thanks again for your understanding.