In the News - Full Article
March 01, 2008
Chicago Lawyer
FOLLOWING PROFESSIONAL RULES -- AND A MORAL COMPASS
By MARIA KANTZAVELOS
By the very nature of their practice, criminal defense attorneys can come to harbor plenty of secrets.
Some of those secrets can be horrifying, like a client's detailed account of a gruesome murder. Others are plainly sad, like the revelation that the young daughter of a client had been sexually abused. Many of them are mundane, simply bits of information about a client, like his drug or alcohol use, or his broken family situation.
"We have billions of secrets," said William P. Murphy, a criminal defense attorney for 40 years. "I've probably heard so many of them, I forget them."
But there can be the sort of secret too difficult to forget, one that could put a lawyer in a vexing position.
It's one of the age-old problems that law professors who teach ethics include in their classes: What happens if you, as an individual, think something should be done, but the rules of the profession would keep you bound to silence?
Take the 26-year-old secret revealed recently in a Cook County courtroom with the testimony of veteran criminal defense attorneys Dale Coventry and Jamie Kunz, whose story was reported in a Jan. 19 Chicago Tribune article.
The retired assistant Cook County public defenders said they were bound by attorney-client privilege to hold onto their client's admission that he was the man who fatally shot a security guard during a Jan. 11, 1982, robbery at a McDonald's restaurant on the South Side, not another man, Alton Logan, who is still serving a life sentence for the crime.
Coventry and Kunz were representing Andrew Wilson on capital charges in the Feb. 9, 1982, murders of two Chicago police officers. The lawyers said Wilson gave permission for them to reveal his admission in the McDonald's case only after his death. Wilson, who was sentenced to life in prison for the police murders, died last November.
That is why, the lawyers said, they could reveal the secret, which they recorded in a notarized affidavit, sealed in an envelope and kept locked in a metal box for a quarter of a century while Logan, now 54, remained in prison for a crime they believed their client committed.
"It's a classic, legal ethics book hypothetical, and here it is in real life," said Steven Lubet, a legal ethics expert and the director of the program on advocacy and professionalism at Northwestern University School of Law. "Lawyers are often called upon to keep secrets they would rather not keep. This, of course, is one of the most wrenching of those circumstances."
The lawyers' recent testimony and the contents of the affidavit surfaced as part of Logan's request for a new trial based on newly discovered evidence in his post-conviction petition.
In a proceeding set for March 10 before Criminal Court Judge James M. Schreier, Assistant Cook County public defender Harold Winston, who is representing Logan, said he will file a memorandum of law giving reasons why the 1982 affidavit and the lawyers' testimony about it should be admissible as evidence. Moral imperatives The story involving the retired public defenders raises the general ethics issue of how lawyers can find themselves in a quandary, forced to reconcile competing personal and professional principles.
"You have two moral imperatives here," said John E. Corkery, dean of The John Marshall Law School and a former chairman of the Illinois State Bar Association's Standing Committee on Professional Conduct. "One is to maintain confidentiality, which you and the law told this person you would give them. The other is: Something bad will happen -- an innocent person will go to jail.
"There's no standard answer for all these conflicts," Corkery said. "The answer is, you're going to have to pick one side or the other. And one side is probably going to nag at you for a long time."
Kunz said he viewed his professional obligation as a moral obligation.
"I can't extricate my legal obligations -- my professional obligations -- from my morals," Kunz said recently. "Andrew Wilson was my client. How could I possibly do anything with the information without somehow jeopardizing Andrew Wilson's life?" Kunz said. "It wasn't comfortable, but it wasn't ambiguous. There was no question where my moral loyalty had to lie. His life was in my hands."
Keeping such a secret, Kunz said, "certainly hasn't been easy, but it's nothing like what life has been like for Alton Logan in the last 26 years."
"As a human being I'm disturbed by the prospect of an innocent person in jail, the way any other citizen is," Kunz said. "But as an attorney," he said, his loyalty is "clear and exclusive."
"It's to my client," he said. "It's not a question of protecting my license, it's a question of protecting my client."
Still, Coventry and Kunz said they would have come forward if Logan, who was facing capital charges, had been sentenced to death.
"We were going to do something," Coventry said. "We had a way to get to Governor [James R.] Thompson. We were going to do that. Whether it would've made an impact we don't know. We would've done something to try to prevent the death penalty."
And if there wasn't the possibility that their own client would face the death penalty, "I would've been able to talk him into revealing this information himself," Coventry said. "I would've had him come forward himself, but I wasn't going to take the risk when he was facing the death penalty."
The confidentiality obligation under the attorney-client privilege is far-reaching. There are a few exceptions, like the one spelled out in Rule 1.6 (b) of the Illinois Rules of Professional Conduct: "A lawyer shall reveal information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm."
"The question we always ask in class is, `Is silence an act that would result in death or serious bodily harm?' It's a stretch, but at least it raises the issue. It's a question, and it makes people think," Corkery said.
"You might also keep in mind, though, that if the oath of confidentiality can be broken in this case, and the innocent person in prison saved this time, that next time the lawyers may not get this kind of information because the client will not believe he can trust them with this kind of secret," Corkery said. "But maybe that's worth it if it prevents an innocent person from languishing in jail. On the other hand, you're not going to have the privilege in the same way anymore, if there is an opt-out based on the lawyer's conscience." Toughest dilemma Many defense attorneys in Chicago said they could not imagine a more difficult situation than the one described by Coventry and Kunz.
"That's the toughest ethical dilemma a lawyer can have," said William J. Martin, a criminal-defense attorney who also practices in the area of professional responsibility. "It's an awful secret to carry with you, but I don't see where the privilege gives you any alternative."
In his many decades of criminal defense work, Edward M. Genson said he counts himself lucky that he has never faced a similar real-life problem.
"The idea that I have information that could exonerate an innocent man and I couldn't use it, it'd be terrible," Genson said. "If I would run into that issue with any regularity I wouldn't be in this business for 43 years, because I couldn't deal with it."
Anthony Pinelli, a former assistant Cook County public defender, put it this way: "As a normal citizen seeing that, it would be like seeing a little kid stepping into the street in front of a car [saying] `I've got to stop this.' But the privilege stops you from doing that. Unless your client gives you the permission to do something about it, you can't. You have to literally watch the accident happen. If you really believe in the privilege, you can't make an exception in that circumstance."
If faced with the same situation as the one faced by Kunz and Coventry, said criminal defense attorney Murphy, he'd keep quiet.
"I wouldn't feel great about it, but the only ethical and moral thing to do is follow my oath, and that's to protect my client's privilege," Murphy said.
"I would know that I'm bound by my oath. I just would have no choice."
There's also a bigger picture to consider, he said.
"If you start breaking people's privileges, it's going to reflect on the profession, and you're not going to be able to deal with your clients in a truthful manner," he said. "Your clients wouldn't trust you, you wouldn't be able to deal with them, and the whole legal profession would fall on its face."
The centuries-old attorney-client privilege is the cornerstone of what the profession is all about, said Martin.
"If I can't go to a lawyer and know that what I tell him is confidential, then why the hell do we need lawyers? If a lawyer is an agent for the police or law enforcement, that's just a total distortion of what the adversary system is all about," Martin said.
Longtime criminal-defense attorney Terence P. Gillespie said, sometimes "there are ways to get information out, and hopefully in a way that doesn't compromise your client and compromise yourself.
"I don't know whether those two fellows had a way. It's a touchy subject, but I think it's one where creativity comes into play," Gillespie said. "I don't think it's so hard and fast that one can't put his thought processes in ways to circumvent it. If you've got a rule that's a disaster to an innocent human being, if it's inflexible, then the rule is not serving its purpose. I'd put a lot of energy into talking to people to figure out how in the hell I can get around this."
That's what Kunz and Coventry did.
"I talked to friends about it -- mentors, people who were wiser than I was -- saying, `Isn't there something we can do?"' Kunz said. "Maybe there should be an exception, but I'm not intelligent enough to figure out what it would be. I can't think of a way where something can be done, to relax the rules so that I could help Logan. I don't see any way to help Logan, without hurting Wilson."
Even if he had disclosed the secret in the heater case, Kunz said, "There's no reason to believe the authorities would believe me.
"And if they did believe me, and believed Andrew Wilson, then I'd have to find a way to live with myself, because of what I'd done to the guy I had promised confidence. That would be harder to live with than what I've had to live with as it is."
Plus, said Coventry, "it wasn't going to have an impact anyway."
"First of all, it's hearsay. And our client could've blocked it because it was his privilege," Coventry said. "And it wasn't an unknown fact. This [the contention that Andrew Wilson was the shooter] had been the defense for Logan for 26 years."
Kunz stressed that it was because of the attorney-client privilege, and their promise of confidentiality to their client, that they were even able to get the admission, and the permission to disclose the information after his death.
"What's certainly true is that Coventry and I would never have put the question to him in the first place if it weren't for the privilege," Kunz said.
Many criminal defense lawyers praised the former public defenders for finding a way to remain true to their professional obligations, while taking steps they thought they could take to be able to come forward with the information at some point.
"I don't know if I would've thought that far ahead, that's why I applaud them for at least being able to do that," said criminal defense attorney Thomas M. Breen.
Pinelli, the former public defender, said he could only hope he would handle a similar situation in the way Coventry and Kunz did.
"They actually thought it through to one step more in creating a contingency that didn't, in any way, threaten their client," Pinelli said.
"When they teach ethics, this is a perfect example for a case study to show people what you really need to do to honor the privilege."
Andrea Lyon, now the director of the DePaul Center for Justice in Capital Cases, was assisting Coventry and Kunz in the case in 1982, when she was a member of the public defender's Homicide Task Force. She said she, too, knew about Wilson's confession and kept it secret. She was the lawyer who notarized the affidavit.
"It's personally very uncomfortable," Lyon said. "You have to say to yourself, `In order for the system to work, people have to have loyalty to their client and for that loyalty to be 100 percent. Most of the time that's not hard; sometimes it is. The point of being someone's advocate is that you're their advocate even when the case is very hard, not just when it's easy." Creative ways to resolution While the facts of every case are unique, there are times when a lawyer can accomplish what she feels is important while remaining true to the rules of the profession, said Mary T. Robinson, former administrator for the Illinois Attorney Registration and Disciplinary Commission and now an ethics and professional responsibility consultant.
"I think lawyers are silent heroes all the time. They find ways to do the right thing and honor the values that are inherent in the rules -- not just the rules," Robinson said.
Lyon described one example of a real-life scenario that involved a creative approach to dealing with a secret she felt compelled to do something about.
She once represented a battered woman who had been in an abusive relationship with a man she was charged with killing, when the client confided that the man had sexually abused her young daughter.
"She would not allow me to talk to her child about it, or refer the child for help. She said the shame was enough and she didn't want it public," Lyon said. "Every time I'd see that young girl I'd want to cry. I could see on her face the damage done to her -- all the domestic violence and being a victim -- but I couldn't talk to her about it because to talk to her about it would've been to reveal where I knew it from."
But Lyon said she found a way to help the girl without breaking the attorney-client confidence. She talked to the girl about the stress of her mother being in jail, telling her she knew of some counseling services where she could get some support -- just to deal with the stress of her mother's case.
"She thought about it and eventually said she'd like the number," Lyon said. "I sent her to a friend of mine, a therapist who deals in child abuse, who I knew would get her to talk about [the sex abuse].
"She was about 14 when this happened. By the time the case was over she was a senior in high school," Lyon said. "She ended up going to college on a track scholarship. She ended up getting better, which was pretty great."
Breen said he has firsthand experience in finding a way around a situation where a lawyer learns something that could set an innocent person free -- but it was at a time, he stressed, when a sense of trust existed between defense attorneys and prosecutors.
"If the defense bar and the prosecution bar will communicate in the interests of justice, there are probably ways around a situation," he said.
Breen recalled a situation he experienced about 20 years ago, when a client came to him to tell him he was certain there was an innocent man awaiting trial in the Cook County Jail on charges of attempted murder.
"He told me he knew that this man was innocent because he in fact was the shooter," Breen said. "He had been feeling horribly guilty about the situation, but by the same token he wasn't willing to go into court and confess. I told him, `I suppose I could hypothetically pose something to the prosecutor and see if he'll take another look at the case.' He was all in favor of that.
"Back then, I was able to have an off-the-record-type conversation with the prosecutor who I trusted and trusted me," Breen said. "That prosecutor wanted to know who my client was. Of course, I told him I couldn't tell him that."
Breen said he offered a hypothetical account of what occurred the night of the shooting and the prosecutor, moved by how his hypothetical facts fit the situation, reinvestigated the case, which was ultimately dismissed.
"As far as I know, the guilty man was in my office and is on the street today, and the innocent man spent two years waiting for trial and was dismissed," Breen said. "That might sound horrible to people, but when it came into my office the train was taking an innocent man to the penitentiary and still leaving a guilty man on the street. It's better that the guilty go free than the innocent go to jail. So, justice was done." One trumps the other Personal conflicts may well be inevitable in a profession steeped in rules.
"You have rules you have to follow, but there is a personal code that a lot of us have," veteran defense attorney Genson said. "Every once in a while one trumps the other. You take it on a case-by-case basis, and you try to do the best you can."
Robert Vischer is an associate professor specializing in legal ethics at University of St. Thomas School of Law in Minneapolis, Minn., where he said he is trying to expand the conversation beyond the terms of the model rules of the profession.
"In these situations, you have to start talking about moral values, and that's not something lawyers are very good at, in part because the profession and legal education system has never encouraged them to pay attention to that dimension of legal practice," Vischer said. "It's easy to talk about rules that are written down in front of you that everybody can see. When you get into the area of moral values, the perception is, it's divisive, controversial, subjective."
In his professional responsibility classes, Vischer said he tries to get law students to not only learn the rules, but also to look into their own moral compasses to figure out for themselves what matters most.
"It can become a richer, more productive conversation when we put all the competing values on the table and talk about them explicitly," he said. "The notion of trust and the ability to keep your word and abide by the trust your client has placed in you is a deeply moral bond you have. The question is whether that moral value trumps all competing moral values. For some lawyers it will, for some lawyers it won't. The point is to actually talk about it, not just mindlessly, reflexively refer to the rule because it's a rule."
Vischer said it's important for lawyers to know what values are at stake in any scenario, and that they are able to articulate those values.
"We all view the world through a moral lens. All of our decision-making is shaped by morals, whether we like it or not," he said. "These are great conversations to have. The point is to grapple with what's actually at stake here and to have that conversation, not just in the lawyer's own mind.
"Lawyers always have options," Vischer said. "It's a question of whether they're willing to suffer the consequences by sticking by what they believe is the just outcome."
Chicago Lawyer
FOLLOWING PROFESSIONAL RULES -- AND A MORAL COMPASS
By MARIA KANTZAVELOS
By the very nature of their practice, criminal defense attorneys can come to harbor plenty of secrets.
Some of those secrets can be horrifying, like a client's detailed account of a gruesome murder. Others are plainly sad, like the revelation that the young daughter of a client had been sexually abused. Many of them are mundane, simply bits of information about a client, like his drug or alcohol use, or his broken family situation.
"We have billions of secrets," said William P. Murphy, a criminal defense attorney for 40 years. "I've probably heard so many of them, I forget them."
But there can be the sort of secret too difficult to forget, one that could put a lawyer in a vexing position.
It's one of the age-old problems that law professors who teach ethics include in their classes: What happens if you, as an individual, think something should be done, but the rules of the profession would keep you bound to silence?
Take the 26-year-old secret revealed recently in a Cook County courtroom with the testimony of veteran criminal defense attorneys Dale Coventry and Jamie Kunz, whose story was reported in a Jan. 19 Chicago Tribune article.
The retired assistant Cook County public defenders said they were bound by attorney-client privilege to hold onto their client's admission that he was the man who fatally shot a security guard during a Jan. 11, 1982, robbery at a McDonald's restaurant on the South Side, not another man, Alton Logan, who is still serving a life sentence for the crime.
Coventry and Kunz were representing Andrew Wilson on capital charges in the Feb. 9, 1982, murders of two Chicago police officers. The lawyers said Wilson gave permission for them to reveal his admission in the McDonald's case only after his death. Wilson, who was sentenced to life in prison for the police murders, died last November.
That is why, the lawyers said, they could reveal the secret, which they recorded in a notarized affidavit, sealed in an envelope and kept locked in a metal box for a quarter of a century while Logan, now 54, remained in prison for a crime they believed their client committed.
"It's a classic, legal ethics book hypothetical, and here it is in real life," said Steven Lubet, a legal ethics expert and the director of the program on advocacy and professionalism at Northwestern University School of Law. "Lawyers are often called upon to keep secrets they would rather not keep. This, of course, is one of the most wrenching of those circumstances."
The lawyers' recent testimony and the contents of the affidavit surfaced as part of Logan's request for a new trial based on newly discovered evidence in his post-conviction petition.
In a proceeding set for March 10 before Criminal Court Judge James M. Schreier, Assistant Cook County public defender Harold Winston, who is representing Logan, said he will file a memorandum of law giving reasons why the 1982 affidavit and the lawyers' testimony about it should be admissible as evidence. Moral imperatives The story involving the retired public defenders raises the general ethics issue of how lawyers can find themselves in a quandary, forced to reconcile competing personal and professional principles.
"You have two moral imperatives here," said John E. Corkery, dean of The John Marshall Law School and a former chairman of the Illinois State Bar Association's Standing Committee on Professional Conduct. "One is to maintain confidentiality, which you and the law told this person you would give them. The other is: Something bad will happen -- an innocent person will go to jail.
"There's no standard answer for all these conflicts," Corkery said. "The answer is, you're going to have to pick one side or the other. And one side is probably going to nag at you for a long time."
Kunz said he viewed his professional obligation as a moral obligation.
"I can't extricate my legal obligations -- my professional obligations -- from my morals," Kunz said recently. "Andrew Wilson was my client. How could I possibly do anything with the information without somehow jeopardizing Andrew Wilson's life?" Kunz said. "It wasn't comfortable, but it wasn't ambiguous. There was no question where my moral loyalty had to lie. His life was in my hands."
Keeping such a secret, Kunz said, "certainly hasn't been easy, but it's nothing like what life has been like for Alton Logan in the last 26 years."
"As a human being I'm disturbed by the prospect of an innocent person in jail, the way any other citizen is," Kunz said. "But as an attorney," he said, his loyalty is "clear and exclusive."
"It's to my client," he said. "It's not a question of protecting my license, it's a question of protecting my client."
Still, Coventry and Kunz said they would have come forward if Logan, who was facing capital charges, had been sentenced to death.
"We were going to do something," Coventry said. "We had a way to get to Governor [James R.] Thompson. We were going to do that. Whether it would've made an impact we don't know. We would've done something to try to prevent the death penalty."
And if there wasn't the possibility that their own client would face the death penalty, "I would've been able to talk him into revealing this information himself," Coventry said. "I would've had him come forward himself, but I wasn't going to take the risk when he was facing the death penalty."
The confidentiality obligation under the attorney-client privilege is far-reaching. There are a few exceptions, like the one spelled out in Rule 1.6 (b) of the Illinois Rules of Professional Conduct: "A lawyer shall reveal information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm."
"The question we always ask in class is, `Is silence an act that would result in death or serious bodily harm?' It's a stretch, but at least it raises the issue. It's a question, and it makes people think," Corkery said.
"You might also keep in mind, though, that if the oath of confidentiality can be broken in this case, and the innocent person in prison saved this time, that next time the lawyers may not get this kind of information because the client will not believe he can trust them with this kind of secret," Corkery said. "But maybe that's worth it if it prevents an innocent person from languishing in jail. On the other hand, you're not going to have the privilege in the same way anymore, if there is an opt-out based on the lawyer's conscience." Toughest dilemma Many defense attorneys in Chicago said they could not imagine a more difficult situation than the one described by Coventry and Kunz.
"That's the toughest ethical dilemma a lawyer can have," said William J. Martin, a criminal-defense attorney who also practices in the area of professional responsibility. "It's an awful secret to carry with you, but I don't see where the privilege gives you any alternative."
In his many decades of criminal defense work, Edward M. Genson said he counts himself lucky that he has never faced a similar real-life problem.
"The idea that I have information that could exonerate an innocent man and I couldn't use it, it'd be terrible," Genson said. "If I would run into that issue with any regularity I wouldn't be in this business for 43 years, because I couldn't deal with it."
Anthony Pinelli, a former assistant Cook County public defender, put it this way: "As a normal citizen seeing that, it would be like seeing a little kid stepping into the street in front of a car [saying] `I've got to stop this.' But the privilege stops you from doing that. Unless your client gives you the permission to do something about it, you can't. You have to literally watch the accident happen. If you really believe in the privilege, you can't make an exception in that circumstance."
If faced with the same situation as the one faced by Kunz and Coventry, said criminal defense attorney Murphy, he'd keep quiet.
"I wouldn't feel great about it, but the only ethical and moral thing to do is follow my oath, and that's to protect my client's privilege," Murphy said.
"I would know that I'm bound by my oath. I just would have no choice."
There's also a bigger picture to consider, he said.
"If you start breaking people's privileges, it's going to reflect on the profession, and you're not going to be able to deal with your clients in a truthful manner," he said. "Your clients wouldn't trust you, you wouldn't be able to deal with them, and the whole legal profession would fall on its face."
The centuries-old attorney-client privilege is the cornerstone of what the profession is all about, said Martin.
"If I can't go to a lawyer and know that what I tell him is confidential, then why the hell do we need lawyers? If a lawyer is an agent for the police or law enforcement, that's just a total distortion of what the adversary system is all about," Martin said.
Longtime criminal-defense attorney Terence P. Gillespie said, sometimes "there are ways to get information out, and hopefully in a way that doesn't compromise your client and compromise yourself.
"I don't know whether those two fellows had a way. It's a touchy subject, but I think it's one where creativity comes into play," Gillespie said. "I don't think it's so hard and fast that one can't put his thought processes in ways to circumvent it. If you've got a rule that's a disaster to an innocent human being, if it's inflexible, then the rule is not serving its purpose. I'd put a lot of energy into talking to people to figure out how in the hell I can get around this."
That's what Kunz and Coventry did.
"I talked to friends about it -- mentors, people who were wiser than I was -- saying, `Isn't there something we can do?"' Kunz said. "Maybe there should be an exception, but I'm not intelligent enough to figure out what it would be. I can't think of a way where something can be done, to relax the rules so that I could help Logan. I don't see any way to help Logan, without hurting Wilson."
Even if he had disclosed the secret in the heater case, Kunz said, "There's no reason to believe the authorities would believe me.
"And if they did believe me, and believed Andrew Wilson, then I'd have to find a way to live with myself, because of what I'd done to the guy I had promised confidence. That would be harder to live with than what I've had to live with as it is."
Plus, said Coventry, "it wasn't going to have an impact anyway."
"First of all, it's hearsay. And our client could've blocked it because it was his privilege," Coventry said. "And it wasn't an unknown fact. This [the contention that Andrew Wilson was the shooter] had been the defense for Logan for 26 years."
Kunz stressed that it was because of the attorney-client privilege, and their promise of confidentiality to their client, that they were even able to get the admission, and the permission to disclose the information after his death.
"What's certainly true is that Coventry and I would never have put the question to him in the first place if it weren't for the privilege," Kunz said.
Many criminal defense lawyers praised the former public defenders for finding a way to remain true to their professional obligations, while taking steps they thought they could take to be able to come forward with the information at some point.
"I don't know if I would've thought that far ahead, that's why I applaud them for at least being able to do that," said criminal defense attorney Thomas M. Breen.
Pinelli, the former public defender, said he could only hope he would handle a similar situation in the way Coventry and Kunz did.
"They actually thought it through to one step more in creating a contingency that didn't, in any way, threaten their client," Pinelli said.
"When they teach ethics, this is a perfect example for a case study to show people what you really need to do to honor the privilege."
Andrea Lyon, now the director of the DePaul Center for Justice in Capital Cases, was assisting Coventry and Kunz in the case in 1982, when she was a member of the public defender's Homicide Task Force. She said she, too, knew about Wilson's confession and kept it secret. She was the lawyer who notarized the affidavit.
"It's personally very uncomfortable," Lyon said. "You have to say to yourself, `In order for the system to work, people have to have loyalty to their client and for that loyalty to be 100 percent. Most of the time that's not hard; sometimes it is. The point of being someone's advocate is that you're their advocate even when the case is very hard, not just when it's easy." Creative ways to resolution While the facts of every case are unique, there are times when a lawyer can accomplish what she feels is important while remaining true to the rules of the profession, said Mary T. Robinson, former administrator for the Illinois Attorney Registration and Disciplinary Commission and now an ethics and professional responsibility consultant.
"I think lawyers are silent heroes all the time. They find ways to do the right thing and honor the values that are inherent in the rules -- not just the rules," Robinson said.
Lyon described one example of a real-life scenario that involved a creative approach to dealing with a secret she felt compelled to do something about.
She once represented a battered woman who had been in an abusive relationship with a man she was charged with killing, when the client confided that the man had sexually abused her young daughter.
"She would not allow me to talk to her child about it, or refer the child for help. She said the shame was enough and she didn't want it public," Lyon said. "Every time I'd see that young girl I'd want to cry. I could see on her face the damage done to her -- all the domestic violence and being a victim -- but I couldn't talk to her about it because to talk to her about it would've been to reveal where I knew it from."
But Lyon said she found a way to help the girl without breaking the attorney-client confidence. She talked to the girl about the stress of her mother being in jail, telling her she knew of some counseling services where she could get some support -- just to deal with the stress of her mother's case.
"She thought about it and eventually said she'd like the number," Lyon said. "I sent her to a friend of mine, a therapist who deals in child abuse, who I knew would get her to talk about [the sex abuse].
"She was about 14 when this happened. By the time the case was over she was a senior in high school," Lyon said. "She ended up going to college on a track scholarship. She ended up getting better, which was pretty great."
Breen said he has firsthand experience in finding a way around a situation where a lawyer learns something that could set an innocent person free -- but it was at a time, he stressed, when a sense of trust existed between defense attorneys and prosecutors.
"If the defense bar and the prosecution bar will communicate in the interests of justice, there are probably ways around a situation," he said.
Breen recalled a situation he experienced about 20 years ago, when a client came to him to tell him he was certain there was an innocent man awaiting trial in the Cook County Jail on charges of attempted murder.
"He told me he knew that this man was innocent because he in fact was the shooter," Breen said. "He had been feeling horribly guilty about the situation, but by the same token he wasn't willing to go into court and confess. I told him, `I suppose I could hypothetically pose something to the prosecutor and see if he'll take another look at the case.' He was all in favor of that.
"Back then, I was able to have an off-the-record-type conversation with the prosecutor who I trusted and trusted me," Breen said. "That prosecutor wanted to know who my client was. Of course, I told him I couldn't tell him that."
Breen said he offered a hypothetical account of what occurred the night of the shooting and the prosecutor, moved by how his hypothetical facts fit the situation, reinvestigated the case, which was ultimately dismissed.
"As far as I know, the guilty man was in my office and is on the street today, and the innocent man spent two years waiting for trial and was dismissed," Breen said. "That might sound horrible to people, but when it came into my office the train was taking an innocent man to the penitentiary and still leaving a guilty man on the street. It's better that the guilty go free than the innocent go to jail. So, justice was done." One trumps the other Personal conflicts may well be inevitable in a profession steeped in rules.
"You have rules you have to follow, but there is a personal code that a lot of us have," veteran defense attorney Genson said. "Every once in a while one trumps the other. You take it on a case-by-case basis, and you try to do the best you can."
Robert Vischer is an associate professor specializing in legal ethics at University of St. Thomas School of Law in Minneapolis, Minn., where he said he is trying to expand the conversation beyond the terms of the model rules of the profession.
"In these situations, you have to start talking about moral values, and that's not something lawyers are very good at, in part because the profession and legal education system has never encouraged them to pay attention to that dimension of legal practice," Vischer said. "It's easy to talk about rules that are written down in front of you that everybody can see. When you get into the area of moral values, the perception is, it's divisive, controversial, subjective."
In his professional responsibility classes, Vischer said he tries to get law students to not only learn the rules, but also to look into their own moral compasses to figure out for themselves what matters most.
"It can become a richer, more productive conversation when we put all the competing values on the table and talk about them explicitly," he said. "The notion of trust and the ability to keep your word and abide by the trust your client has placed in you is a deeply moral bond you have. The question is whether that moral value trumps all competing moral values. For some lawyers it will, for some lawyers it won't. The point is to actually talk about it, not just mindlessly, reflexively refer to the rule because it's a rule."
Vischer said it's important for lawyers to know what values are at stake in any scenario, and that they are able to articulate those values.
"We all view the world through a moral lens. All of our decision-making is shaped by morals, whether we like it or not," he said. "These are great conversations to have. The point is to grapple with what's actually at stake here and to have that conversation, not just in the lawyer's own mind.
"Lawyers always have options," Vischer said. "It's a question of whether they're willing to suffer the consequences by sticking by what they believe is the just outcome."
