Proof that Lawyers Can Survive Without Honor.

 Posted on July 03, 2009 in Uncategorized

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.