Attorney/Client Privilege Keeps Innocent Man in Prison

Attorney-Client Privilege :

The attorney-client privilege is the oldest privilege recognized by Anglo American Jurisprudence.

There are very few exceptions to the sacred privilege and in all but one state, a lawyer may not reveal confidential communication even if the information would free an innocent person, wrongfully convicted of a crime.

I viewed an unusual privilege issue on Law and Order last night. Yes, I am a Law and Order junkie! What can a lawyer do, legally, if her client confides that she killed a certain person and the lawyer subsequently learns that an innocent person is is imprisoned as the perpetrator of that crime? Tough one?

I confide in you as my lawyer that I murdered Jane Smith. Six months later, Rick Bond is arrested, tried, convicted and sentenced to life in prison for murdering Jane Smith.  You know that Rick Bond is actually innocent because I am your client and I confessed to you that I did it. The law prohibits you from revealing your clients's confidential communication. What do you do?

Watching this particular episode of Law and Order made me queasy. Law and Order is fictional, but the issue addressed is very real. If a lawyer reveals the privileged communication he or she is throwing away their career, livelihood and everything they have worked so hard to become and could also be charged with a crime.   If the lawyer remains true to his or her oath, does not violate this sacred privilege and follows the law, an innocent man will spend the rest of his life in prison. It get worse. Even if the lawyer follows his or her conscious and reveals the privileged information, if it is revealed without a waiver from the client, the information is useless in a court of law.

In the past several years, the fictional plot explored on Law and Order has haunted real lives. Two wrongful conviction cases have been spotlighted in the media. Both cases involved lawyers who were privy to confidential information conveyed to them by clients that would help free wrongfully convicted men, but both lawyers were barred from coming forward. They were prohibited from coming forward and sharing information that would help free innocent men. These lawyers were bound by the very same judicial system that advocates life, liberty, freedom, justice, truth, and the pursuit of happiness

In one of those cases the offending client allowed his attorney to reveal information that would free the innocent man, upon his death. The lawyer did so, but not until after the wrongfully convicted man spent two decades in prison. The second case has a much more chilling result.

Staple Hughes, a North Carolina attorney, revealed his clients's privileged communication in 2004, after his imprisoned client died. Hughes hoped to free the wrongfully convicted, Lee Wayne Hunt from his life sentence. Hughes, stated that his his now dead client, confessed that he and he alone committed the double homicide for which Hunt was serving a life sentence. Hughes kept his client's confidence for twenty-two years while Hunt was serving a life sentence for a crime he did not commit.

 Hughes felt it was "ethically permissible and morally imperative" that he come forward with the exonerating information, once his own client died.  The law, unfortunately disagrees. An attorney is bound by the attorney- client privilege even after the death of his or her client. Because Hughes did not receive his client's consent to reveal the confidential information upon his death, Judge Jack Thompson of the Cumberland County Superior Court in Fayetteville, North Carolina refused to consider  Hughes' testimony during the 2007, hearing for a new trial. The judge stated, "Mr. Hughes has committed professional misconduct." The judge reported Hughes to the North Carolina Bar for violating attorney-client privilege and Lee Wayne Hunt remains in prison despite the exculpatory evidence showing his innocence. You can read summaries of both cases and find links to the actual court cases here.

The principle of confidentiality is set out in the legal ethics rules in each jurisdiction and in ABA Model Rule 1.6. Model Rule 1.6 Comment [2] states: “A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation. ... This contributes to the trust that is the hallmark of the client-lawyer relationship.” American Bar Association

What is your opinion on the law that prohibits an attorney from revealing confidential information? Should there be an exception if the information will free a wrongfully incarcerated person? Or would an exception to the rule hinder a client's ability to freely and openly discuss facts and circumstances with his or her attorney without fear of disclosure?

This blog is not intended as legal advice.


  1. Very sad. I think the only way it would ever be allowed is if the guilty party could not be charged with the crime for admitting it. Of course, that leads to all kinds of issues as well.

  2. Unfortunately, that IS the law. In a sort of related case, did you ever hear about Donald Gates? He spent 28 years in prison for a rape and murder that he did not commit. DNA overturned his conviction.

    That said, the law is imperfect but it is what it is. Perhaps there is a grand plan that is in effect that finds people in these awful situations.

  3. This is one of situations cases in which there are several significant ethical issues, as well as legal ones. Particularly, in this situation, the law has failed to provide justice to one party, while actually protecting the guilty on the other side. In ordinary situations, this would make the lawyer an accessory to the crime. But lawyers live in a different world, in some professional ways.

  4. This post is very moving... I feel so sorry for the innocent ones who are accused of crimes they did not commit. Unless the truth comes out, they are almost helpless. May God bless them.

  5. Great post. I agree that confidentiality is important, but where a lawyer chooses for ethical reasons to violate it, that information shouldn't be disregarded. I guess I've never really understood the concept of "tainted information." It makes sense that Hughes came forward, and he probably knew there would be heavy consequences for doing that, and okay. But does that mean that the information he provided is not worthwhile? Once the information is out there, it should be considered, regardless of whether a lawyer violated the law in order to provide it.

    It's complicated? It's complicated.

  6. The law is so complicated and complex, but I think that if a lawyer is willing to risk their career for the sake of an innocent party being cleared of guilt, the evidence should be admissible and heard by a Judge. Especially after the death of the guilty party. Death should be the exception.

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