No Loyalty to Dead Clients?
posted by Dave Hoffman
I know that this is all perfectly kosher – there’s no disclosure of any confidence, and any potential representation has long-since lapsed. But watch the following and tell me if you agree that this is more than a little bit unseemly? (My sense is someone is trying to avoid a malpractice suit.)
(H/T: TNC)
October 25, 2009 at 5:48 am
Posted in: Legal Ethics
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Responses (10)
Steve - October 25, 2009 at 6:38 am
Also, he may need to react like this to avoid feeling complicit in a wrongful execution. A person will deny the nose on his face if it allows him to continue seeing himself as a basically good person.
shg - October 25, 2009 at 7:45 am
Are you sure it’s “all perfectly kosher?” There are a number of statements made that may well disclose client confidences, and the duty extends beyond the grave, as has been noted by a wide swathe of practicing lawyers who addressed this video right after the interview aired.
I would hope that no law student is taught this is merely “unseemly”, and not a gross ethical lapse.
dave - October 25, 2009 at 7:48 am
I listened, and didn’t hear any confidences — but maybe I missed a few, since it was hard to pay attention to what he was saying when every word out of his mouth was defensive. Yes, of course it is correct that the duty of confidentiality extends beyond the grave! But if he didn’t disclose confidences, and simply argued that his client was guilty after conviction and after death, I don’t see an ethical lapse. Do you?
Mark Bennett - October 25, 2009 at 11:21 am
Dave,
You are entirely wrong about the kosherness of Martin’s statements.
Texas is unusual (unique?) among the states in that everything the lawyer learns in the course of representing a person in a criminal case is privileged; this is true whether the lawyer learns it directly from the client or elsewhere. See http://bennettandbennett.com/blog/2007/08/client-confidentiality-in-texas.html.
So when Martin said that the defense had done pseudoscientific carpet testing that, in his mind, proved Willingham’s guilt, he revealed privileged client information. He might not have known that, though, since most Texas criminal defense lawyers are ignorant of the scope of privilege in Texas too.
Limitations breezed by a long guy ago, this guy has no potential civil liability. Steve’s theory is probably correct: in Martin’s mind, his client must have been guilty because the alternative is too painful to contemplate.
John Steele - October 25, 2009 at 3:35 pm
Mark,
You say “Texas is unusual (unique?) among the states in that everything the lawyer learns in the course of representing a person in a criminal case is privileged; this is true whether the lawyer learns it directly from the client or elsewhere.” I assume you meant “is under the duty of confidentiality” rather than “is privileged.” Btw, most states define confidences in a similarly broadly way. The definitions vary a little but the basic point is that confidences are far broader than privileged information.
The defense lawyer says a lot in that interview and it seems to me that he shouldn’t have said some of it.
shg - October 25, 2009 at 5:28 pm
I see others have beat me to the punch. But allow me to add that Martin’s very “impression” of his client, good or bad, was gained at least in part through private communications between them. It is similarly confidential. To denigrate his client based upon confidential communications is outrageous, and quite unkosher.
Mark Bennett - October 25, 2009 at 5:46 pm
John,
You assume wrong. Please see the analysis in the link I provided.
Guest - October 26, 2009 at 10:28 am
Mark,
You’re da man:
In criminal cases, a client has a privilege to prevent the lawyer or lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.
BTW, to all you goody-2-shoes and ethics observing folks out there… lemme ask you a question: what is Martin supposed to do with ALL OF YOU beating up on him?
John Steele - October 26, 2009 at 11:50 am
Mark,
Thanks. I had been analyzing only the confidentiality rule but now I see, as your blog post suggests, that Texas has that 503(b)(2), which does indeed provide a “privilege” for all facts that come to the lawyer’s knowledge by way of the attorney client relationship. That may indeed be unique.
How does it work in practice? Do criminal defense lawyers in Texas make sure they get client permission to reveal the sorts of non-public information that criminal defense lawyers across the country feel they’re entitled to reveal as they go about defending their clients? (For example, it would be difficult to interview a routine witness in a criminal case without discussing something that is ‘privileged’ under 503(b)(2).)
And how do criminal defense lawyers treat questions from judges? Do Texas criminal defense lawyers routinely assert privilege against the court as to all information that came to the lawyer as a result of the attorney client relationship?
Jeff Gamso - October 30, 2009 at 7:07 am
Jumping in very late here, but there’s also, as I’ve argued/explained elsewhere, the continuing duty of loyalty not to disadvantage the client through information gained during the representation. Insisting that Willingham is guilty because you conducted a test and proved it in the course of representing the guy may not cause the client any personal harm now that he’s dead. But it sure causes reputational harm and disadvantages him in that sense – especially in the face of substantial evidence that there was no crime.
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