Should lawyers always keep their client’s secrets?

 

In Chicago, 1982, a security guard at a McDonald’s was shot and killed. Alton Logan was charged with the crime. There was only one problem – Logan was innocent. Another man, Andrew Wilson, was the killer. Logan would spend 26 years in prison before being released.

We might shrug off unfortunate cases like this as simply bad luck. But there was an additional twist to this story: Andrew Wilson had confessed the murder to his lawyers. They knew that an innocent man was about to go to jail for their client’s crime, but were bound by professional rules to keep the admission secret.

Could rules that require lawyers to watch while an innocent person is sent to prison possibly be justified? Should lawyers always keep their client’s secrets?

 

Why do obligations of secrecy exist?

The traditional justification for lawyers keeping their client’s secrets is that it “promotes the public interest … in encouraging the client to make a full and frank disclosure of the relevant circumstances”. In other words, it promotes candour with lawyers, which allows individuals to be better advised and represented.

Related to this argument, secrecy encourages clients to admit to wrongdoing, which may then enable lawyers to “exercise their powers of persuasion in stopping the conduct.” Another way to understand this idea is that, without secrecy, information may never reach anyone else – and having it reach the lawyer may be better than nothing. For instance, Andrew Wilson’s lawyers eventually convinced him to allow his secret to come out after his death – and it was this information which ultimately exonerated Alton Logan.

Finally, another possible justification for keeping secrets is that it is necessary to maintain the trust of clients in lawyers and the legal system. Perhaps accused individuals would feel wronged by the system unless they were able to have an entirely faithful advocate on their side.

 

The case against client secrecy

Jeremy Bentham believed that lawyer secrecy (also known as ‘privilege’) had no justification and should be abolished. His argument, as summarised by Whitton, was, “if the client is innocent, the lawyer has no guilty secret to betray; if he is guilty, absence of the privilege would cause no injustice.” In other words, it is the revelation of truth that ensures justice.

Bentham is surely right that truth ensures justice. But he failed to grapple with the consideration that, without a guarantee of secrecy, it is very likely that the truth would not even reach lawyers.

As for the argument that confidentiality is necessary to maintain client trust in the legal system, it can be countered that public trust is just as important. And having innocent people go to jail – when lawyers could prevent this – is surely likely to diminish that.

In my view, the best argument for confidentiality is that it can enable information that would otherwise never reach the light of day to reach lawyers, if lawyers are able to do something morally worthwhile with that information. Unfortunately, the very fact of secrecy makes it very difficult to know whether lawyers do, most of the time, achieve morally worthwhile ends with the information that secrecy affords them.

 

Some concluding thoughts on the case of Alton Logan

It’s not clear whether client confidentiality, in general, does more good than harm. Nonetheless, in some circumstances the case for overriding secrecy is compelling. For instance, if a client reveals to a lawyer his plans for killing his wife, it seems clear that the moral calculus tips in favour of helping thwart his plan.

The current rules governing lawyers do provide some exceptions to confidentiality. One exception in Australia arises where necessary to prevent “imminent serious physical harm” to another person. And yet there is no clear guidance on whether a lawyer in that country could betray confidentiality to prevent an innocent person, like Alton Logan, from going to prison.

Thus, the current rules allow a lawyer to reveal a secret to stop someone losing a limb – but potentially not to stop an innocent person going to prison for 26 years (or more). Personally, I would rather lose a limb. Surely the latter interest is just as important as the former.

Most of the time, keeping secrets and putting a client’s case as forcefully as possible are necessary aspects of a system that (usually) achieves just outcomes. But it seems clear that, in circumstances like Alton Logan’s, justice requires that these regular rules be overridden, because a more important principle or interest is at stake. In other words, a duty to the administration of justice should trump the duty to the client.

In my view, the existing rules should be changed. The case for allowing an exception to confidentiality to prevent wrongful convictions is overwhelming.

Finally, I believe that revealing secrets in cases like Alton Logan’s should be compulsory. Making disclosure compulsory avoids benefitting unethical lawyers. If the rules are merely permissive of revealing the secret, criminals would still prefer to do business with lawyers who promise to keep secrets no matter what. Preventing serious injustice should not be optional – and we should avoid commercially disadvantaging those who are willing to do the right thing.

What do you think?

 

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6 Responses to Should lawyers always keep their client’s secrets?

  • Andrews says:

    As much as I would like to agree with you, William, I think the case for permitting or requiring lawyers to disclose confession from clients is not as compelling as you might think.

    In the first place, a confession is relevant to a trial only if made in court. This means that the administration of justice cannot rely on a private confession to one’s wife, neighbour or, for that matter, lawyer. The idea is roughly this: if a person is ready to admit guilt to society, the person is ready to confess in court. Otherwise, the person is just not ready to admit guilt, and therefore is not ready to plead guilty, and so there is no reliable confession going on.

    Now is permitting or allowing lawyers to disclose confessions from clients a way of getting clients to confess in court? Well, if the client was ready to plead guilty anyway, taking this mesure is not necessary. And if the client was not ready to plead guilty, then allowing or requiring her lawyer to disclose a confession might just be faced by a denial from the client. The only way to fight the denial would be to bring the relation between the client and his lawyer under inquiry. But then there is theoretically no limit to how far the inquiry can go, and thus no genuine secrecy in the relationship between clients and lawyers.

    So the furthest we can go in your direction is, I think, to require lawyers to whom a client has confessed an offence to encourage the client to “reproduce” the confession in court. Notice that we don’t need to justify this requirement by referring to the prevention of harm; it is simply justified by the fact that, in court, people should say everything they believe to be true and that is possibly helpful to the trial. Lawyers should make sure that their clients comply with that principle just as judges should make sure that everyone in the court complies with it.

  • William Isdale says:

    Hi Andrews,

    Thanks for your comment. I think a distinction needs to be made between breaking a client’s confidence (not keeping their information a secret) and disclosing a confession (which shows the client to be guilty). I think it may be possible to have a scheme in which a lawyer could break confidence and get the innocent person out of harm’s way, without it having to result in the guilty client being convicted. E.g. this could be a confession done on an indemnity basis. It is surely more important, after all, that an innocent person not go to jail – even if the guilty man does not go there in his place.

    • Andrews says:

      I think a distinction needs to be made between saying that one is guilty and being guilty. Normally, only a judge can decide whether someone (saying she is guilty or not) is guilty. That’s the whole point I am trying to make in my previous comment: from the point of view of the the institutions of justice, saying that one is guilty outside of the court does not entail that one is guilty.

      • Andrews says:

        So in short:

        disclosing a confession (…shows the client to be guilty)

        is not a true statement. Nothing shows anyone’s guilt until assessed by a judge.

  • William Isdale says:

    Nothing in my article turns on that point. We don’t have to conclude that the other person is guilty; we just need evidence (which their confession might provide – e.g. details of physical evidence, not just their confession) that throws doubt on the guilt of the person who is being (probably wrongly) convicted.

  • Andrews says:

    It’s the same thing again: nothing is evidence unless a judge says so. So one of the two has to happen: (i) You get the client to confess in court, but then you need no special ‘scheme’ or exception to lawyers-clients privacy is needed. What is needed is simply than a lawyer persuades her client to do so. Or (ii) you hear the lawyer to whom a confession has been made as a witness; but then either the client will contest the witness, or not. If he does, then you are back at the beginning: you have a challenged piece of evidence like any other, with this difference that now the client is in a stronger position since she can challenge her lawyer’s loyalty. And finally, if the client does not contest the lawyer’s testimony of her own private confession, then it’s plausible that the client would have been ready to confess in court anyway if persuaded to do so (i).

    So no matter how you slice it, I don’t see how you can mount a case for introducing exceptions to lawyers-clients privacy from the possibility of a client confessing to her lawyer..

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