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Friday, January 18, 2008

Tomorrow's Legal Ethics Exam Today

This is a fascinating story, in Saturday's Times:

For 10 years, Leslie P. Smith, a Virginia lawyer, reluctantly kept a secret because the authorities on legal ethics told him he had no choice, even though his information could save the life of a man on death row, one whose case had led to a landmark Supreme Court decision.

Mr. Smith believed that prosecutors had committed brazen misconduct by coaching a witness and hiding it from the defense, but the Virginia State Bar said he was bound by legal ethics rules not to bring up the matter. He shared his qualms and pangs of conscience with only one man, Timothy G. Clancy, who had worked on the case with him. [. . . . .]

But the situation changed last year, when Mr. Smith took one more run at the state bar’s ethics counsel. “I was upset by the conduct of the prosecutor,” Mr. Smith wrote in an anguished letter, “and the situation has bothered me ever since.”

Reversing course, the bar told Mr. Smith he could now talk, and he did. His testimony caused a state court judge in Yorktown, Va., to commute the death sentence of Daryl R. Atkins to life on Thursday, citing prosecutorial misconduct.


Posted by Paul Horwitz on January 18, 2008 at 11:20 PM | Permalink


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So should Atkins v. Virgina (the Supreme Court case) have been about prosecutorial misconduct, not mental retardation?

Posted by: katie | Jan 21, 2008 3:26:23 PM

In case anyone's interested, I posted my thoughts about the legal ethics issues in this case over at legalethicsforum.com: http://legalethicsforum.typepad.com/blog/2008/01/stunning-ethics.html

Posted by: Andrew Perlman | Jan 20, 2008 10:08:02 AM

Thanks Laura - that's it. Virginia uses a definition of confidentiality drawn from the old Model Code rather than from 1.6 of the Model Rules. Under the Model Rules the material would still be a confidence, which they define broadly as information related to the representation of a client (unless the client has given informed consent to its revelation or the lawyer is impliedly authorized to reveal it in order to carry out the representation). But under the Model Rules, it would, of course, be subject to the exception for substantial bodily harm/death.

By the way, what are you doing up at 5 am?

Posted by: Michael Steven Green | Jan 20, 2008 7:58:24 AM

So I can understand why the Virginia State Bar said that he was obligated not to speak. (What I don’t understand is why they changed their mind.)

This article suggests that Smith was present at the interview at which the prosecutors engaged in coaching. So perhaps the State Bar took the view that that information was subject to Rule 1.6 not because it was an attorney-client communication but because it was "other information gained in the professional relationship . . . the disclosure of which . . . would be likely to be detrimental to the client." Once Smith's client had exhausted all appeals/habeas, the disclosure of this information would no longer be detrimental to the client (the theory would go), and so the information was no longer subject to Rule 1.6. (Ben Sniktoff suggests this above.)

Posted by: Laura Heymann | Jan 20, 2008 5:22:52 AM

It's ironic that the story is in the Times. It published the revelations of the lawyer for the actual killer in the infamous Leo Frank case in 1915, before Frank was lynched. There's another case of this sort now pending in the North Carolina Supreme Court. The best discussion is at the legal ethics forum. Scroll down to the fourth story. http://legalethicsforum.typepad.com/blog/2007/11/index.html
North Carolina's Rule 1.6 is more representative than Virginia's, but the state court judge there also has been a good deal less receptive to the lawyer's disclosure. In fact, he filed disciplinary charges against the lawyer for breaching his client's confidences.

Posted by: Bob Condlin | Jan 19, 2008 9:56:46 PM

This headline was obviously ripped from a Law & Order episode:


Posted by: Bruce Boyden | Jan 19, 2008 3:49:22 PM

Under the Virginia Rules of Professional Conduct 8.3, a lawyer “having reliable information that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness to practice law shall inform the appropriate professional authority.” That certainly applies to the prosecutorial misconduct here.

But the rule “does not require disclosure of information otherwise protected by Rule 1.6” (the duty of confidentiality). And there is no exception to the duty of confidentiality for this case. 1.6 states that a lawyer shall reveal “information concerning the misconduct of another attorney to the appropriate professional authority,” but if the information is protected under Rule 1.6, the attorney must obtain client consent. I’m assuming that Smith tried to get this consent but it was refused.

So I can understand why the Virginia State Bar said that he was obligated not to speak. (What I don’t understand is why they changed their mind.) The problem is that there is no exception to the duty of confidentiality in the Virginia rules for third party substantial bodily harm or death. The rules create an exception for client fraud or crime, but, as this example shows, revealing a client confidence can prevent death even when one’s client is involved in no wrongdoing. The Model Rules would solve the problem because they have an exception to the duty of confidentiality for reasonably certain death or substantial bodily harm.

Posted by: Michael Steven Green | Jan 19, 2008 11:13:22 AM

I'm wondering how the Atkins team didn't get that tape in discovery.

Posted by: Michael Risch | Jan 19, 2008 9:05:11 AM

I had to read the full NYT article to figure out what the issue was. In case other readers are lazy, Smith couldn't talk before because it would hurt his client, who was a co-defendant with Atkins.

I'm pretty sure that even if what he said would hurt his client, in the event of death penalty it should be permissible to break the glass. I don't generally like carving out exceptions to rules, especially good rules, but we're talking about a major prosecutorial misstep, and the life of a person. I've also never practiced (2L) so it's likely that there are nuances of practice and its relation to legal practice that I don't get.

Posted by: Ben Snitkoff | Jan 19, 2008 8:34:22 AM

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