When we think about ethical problems, we use our imaginations: “What if I….”  So in Professor Perlman’s post: “What if I was in jail for a crime I did not commit?”  That imaginative engagement is crucial to allow us to feel empathy, and to structure our decisions so that the interests that matter get taken into account.

But if we are going to use our imaginations to empathize, we cannot stop at the innocent accused in jail.  Imagine you are a young man growing up in inner city poverty, gradually embroiled from age 14 in gang life and gang violence.  At 16, high on crystal meth, you assault another young man on the street, beating him senseless.  After you fumble your way home, you decide to straighten up your life.  But the beating is in the news, and you’re scared.  You drop by a local law clinic and tell the lawyer you want his advice.  But the lawyer tells you, “I want to help you, but remember that if you tell me anything about a crime you might have committed, and someone else gets charged with the crime, I may go to the authorities.”  Or suppose the lawyer doesn’t tell you that, but after you speak to him, someone else is charged and he takes your secrets and gives them to the police.

In the first case you will likely not seek advice at all, and in the second case you will feel betrayed, and will know better than to seek legal advice another time.
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I’m delighted to be here on a brief visit from my usual blogging home at www.legalethicsforum.com. I write and blog about issues facing lawyers and the legal profession, and I want to take this opportunity to discuss a narrow issue that raises larger questions about the role of attorneys in an adversarial system.

To frame the issue, imagine that you are a criminal defendant and sentenced to life in prison for a crime that you did not commit. Now assume that the lawyer for the real culprit knows that you are innocent and can prove it by disclosing her client’s confidential information. That attorney’s client, fearing a lengthy jail sentence, instructs the lawyer not to disclose the truth. Should the lawyer nevertheless be allowed to disclose the information to save you from an underserved lifetime in prison? Or must the lawyer follow her client’s instructions and conceal the truth?

This scenario arises only rarely, but it raises a fundamental question about the nature of the attorney’s role. When (if ever) should a lawyer be permitted to sacrifice a client’s legal interests in order to help a third person? Keep in mind that, in this fact pattern, the lawyer is not breaking any law by concealing the information. The only question is whether the lawyer should be permitted to disclose the information as a matter of professional ethics.

Currently, only two states (Alaska and Massachusetts) permit disclosure under these circumstances. They permit, but do not require, a lawyer to disclose confidential information “to prevent the wrongful execution or incarceration” of another person.

In my view, all lawyers should have the same discretion as lawyers have in Alaska and Massachusetts. It goes without saying that an attorney should have a duty to protect a client’s legal interests, but in extreme cases, the rules should take into account the interests of third parties. For this reason, the relevant ABA Model Rule of Professional Conduct already permits lawyers to disclose confidential information to prevent reasonably certain death or substantial bodily harm and to prevent serious financial harms to third parties.

These exceptions correctly recognize that lawyers should have the discretion (but not the obligation) to disclose confidential information to prevent serious injuries to other people. These exceptions are narrowly tailored, and appropriately so, but they correctly balance a lawyer’s client-centered duties with the legitimate interests of third parties. And they also do part of the work of the Alaska and Massachusetts rules; by giving lawyers the discretion to disclose confidential information to prevent death, the Model Rule seemingly permits an attorney to disclose confidential information to prevent a wrongful execution. The Model Rule, however, is of no use to you, the prisoner with the lifelong prison sentence.

Given that lawyers are already permitted to disclose confidential information to prevent serious bodily harm or death, the rules should explicitly permit lawyers to prevent the equally troubling fate of a wrongful incarceration. Again, the rules should give substantial weight to a lawyer’s duties to a client, but in the unusual case where a lawyer knows of a wrongful incarceration, other interests can sometimes trump that duty. Such a scenario will not arise often, but when it does, the rules of professional conduct should recognize that a lawyer’s obligations do not and should not run exclusively to the client.