When the Law Preserves Injustice: Issues Raised by a Wrongful Incarceration Exception to Attorney-Client Confidentiality
affiliation not provided to SSRN
August 11, 2009
Journal of Criminal Law and Criminology, 2010
In the past few years, two wrongful incarceration cases have garnered especially heightened media attention. Both cases involved lawyers who knew all about the wrongful incarcerations of innocent men but were barred from disclosing exonerating information because of confidentiality restraints with their own clients. The following Article is an attempt to frame some of the concerns presented by a possible wrongful incarceration exception to attorney-client confidentiality. The Article begins in Part One by providing background on the judicial system’s requirements of a lawyer, including attorneys’ ultimate duty to their clients and their obligations under attorney-client confidentiality. Part Two proceeds with an analysis of the wrongful incarceration exception with six subparts. Part A discusses the possible chilling effect of a new exception on attorney-client discussions. Part B considers the proposition that the substantial bodily harm and reasonably certain death exception already captures an exception for wrongful incarcerations. Part C, D, E and F raise some practical issues with a wrongful incarceration exception, including, respectively, the length of conviction that would be required for an attorney to disclose information, the proper timing procedurally for an attorney to come forward, the possibility that a wrongful incarceration exception could violate a client’s constitutional rights against self-incrimination and for effective counsel, and finally, the difference in attorney behavior that could be expected to result from a wrongful incarceration exception. The Article concludes by suggesting a proposal for a new exception that would best solve the issues raised by a wrongful incarceration exception to attorney-client confidentiality.
Number of Pages in PDF File: 45
Keywords: wrongful conviction, wrongful incarceration, attorney-client confidentiality, ethics, attorney-client privilege
Date posted: August 13, 2009
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