Professor James E. Moliterno, the Vincent Bradford Professor of Law at Washington and Lee, recently published his article, Rectifying Wrongful Convictions: May a Lawyer Reveal Her Client’s Confidences to Rectify the Wrongful Conviction of Another?, 38 Hastings Const. L. Q. 811 (2011), in the Hastings Constitutional Law Quarterly, as part of a roundtable discussion of the ABA Standards for Criminal Litigation).
In 2002, the American Bar Association amended the Model Rules of Professional Conduct (“Model Rules”) to allow an attorney to reveal client information when necessary to prevent certain future harms as well as crimes. Thus, if a client reveals that the client was the perpetrator of a crime for which someone else has been convicted and is scheduled to be executed, the lawyer is free to reveal that confidence. Prof. Moliterno asks: “But what of non-capital, wrongful convictions? Is the presence of the wrongly convicted in prison such a future harm? In particular, is the wrongly convicted ‘reasonably certain’ to suffer ‘substantial bodily harm?'”
In the paper, Prof. Moliterno suggests that the Model Rules should include any incarceration within “reasonably certain . . . substantial bodily harm.” Should the rules as written not encompass incarceration, Prof. Moliterno argues that an exception should be added to the Model Rules to permit disclosure of confidences to rectify wrongful incarceration. He provides example cases and the wrongs that occurred because of the confidences lawyers felt bound to keep. He then addresses the current state of the law and possible interpretations. Prof. Moliterno concludes the paper by stating that “[c]onfidence in the justice system cannot survive in the face of long-past revelations of wrongful convictions when silence was mandated by lawyer ethics law. The change advocated for in this paper is overdue and now needed if confidence in the justice system is to be preserved.”