The “classic ethical bind”
Eugene Volokh mentioned an interesting dilemma: an attorney knows his client committed the crime for which another person has been convicted. Should the attorney breach the attorney-client privilege and reveal this fact to save the man who was wrongly committed?
California is unique, I believe, in having written its attorney ethics rules into state law (as opposed to a professional code of ethics, which is issued by a “profession” instead of the state). And California’s ethics statutes also seem to put an attorney like this into a real bind. Section 6068(e)(1) of the state’s Business and Professions Code says that a California attorney must “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” The only exception to this is to prevent a future crime involving death or substantial bodily harm. So far as I know, the exact meaning of “every peril” has never been addressed by a state court, but it sure sounds like it includes everything up to and including the threat of death. The courts have said that “This obligation is a very high and stringent one…. By virtue of this rule, an attorney is precluded from assuming any relation which would prevent him from devoting his entire energies to his client’s interests. Nor does it matter that the intention and motives of the attorney are honest.” Anderson v. Eaton, 211 Cal. 113, 116 (1930).
Yet section 6068(h), just a few lines down, declares that it is an attorney’s duty “Never to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.” Surely a person wrongly committed to prison, and lacking any other path to justice except for the evidence this attorney has, is a person who is defenseless or oppressed. The consideration of being disbarred, it would seem, should not be factored in when an attorney considers what to do in such a situation. For that reason, I think Prof. Volokh’s discussion in this post is actually beside the point. An attorney’s professional ethics—as distinguished from morality; an important distinction in this context, I believe—prohibit him from considering how his ethical decision would affect him personally, or his ability to “do good” in the future.
That said, I think if it were up to me I would have to say that 6068(e)(1) is more specific than 6068(h) and therefore trumps, in two ways. First, it refers to a specific client—a particular person, and the standards governing that person’s case—as opposed to the more general terms “the oppressed” or “the defenseless.” Second, 6068(h) addresses “reject[ing]” a person’s “cause,” which suggests that it is referring to an attorney’s deliberation over whether to take up a case or an issue in the first place, while 6068(e)(1) addresses an existing relationship which the attorney has already formed with a particular client. This interpretation is consistent with section 6068(d) which requires attorneys “[t]o employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth…” Note that the truth is only required for during the “maintaining” of an existing cause.
So I would have to stay quiet. (The attorney can, of course, urge his old client to confess, for whatever that’s worth.)
