Confidentiality and the Dead Client

Lawyer’s Revelation of Confession May Ruin Him

Staples Hughes’ career is in jeopardy for having disclosed the confession of a client, now dead, that he alone killed a couple

Titan Barksdale, Staff Writer, News & Observer

Lawyer Staples Hughes was trying to do the right thing when he disclosed information that could help prove a man innocent of murder.  Now it may cost him his law license.  Hughes, the state’s appellate defender, disclosed earlier this year that his client, a co-defendant in the murder, had confessed 20 years earlier that he alone killed Roland and Lisa Matthews in Fayetteville.

After his client, Jerry Cashwell, died, Hughes spoke up. The confession, coupled with challenges to how bullet evidence was analyzed, could get a new trial for Lee Wayne Hunt, who was convicted of the slayings 21 years ago and sentenced to life in prison.

It also puts Hughes in a fight for his career.  During a hearing to seek a new trial for Hunt, a Cumberland County Superior Court judge said he would file a complaint with the N.C. State Bar over Hughes’ testimony about the confession. As Cashwell’s attorney, Hughes was bound by attorney-client privilege to keep the confession secret. But Hughes believed that his duty to Cashwell died with his client.

Judge Jack Thompson rejected Hughes’ testimony, and Hunt’s bid for freedom. Hughes was later notified that a bar grievance had been filed against him.  “It crossed my mind a thousand times that somebody might report me to the bar,” Hughes said. “I’m sure the judge thought he was doing what he thought was right, and I thought I was doing what was right under the circumstances. It was a sobering moment.”

Hughes said he has filed a response to the complaint, but it is unclear when the bar will make a decision. The N.C. Supreme Court could determine whether Hughes is right or wrong when Hunt’s attorneys ask the court to review the murder case.  Meanwhile, the issue has exposed a thorny ethical dilemma that cuts to the heart of a lawyer’s mission -- serving justice.

Hunt had been a notorious drug dealer in Fayetteville but maintained from the start that he had not murdered the Matthewses.  In March 1984, the couple were found shot and stabbed to death in their home on a rural road in Cumberland County. About one year later, Hunt, Cashwell and Kenneth Wayne West were arrested and charged with the murders.

Hughes interviewed Cashwell at the Cumberland jail in the weeks after the arrest. That’s when Cashwell confessed that he was the sole killer. Hughes, a young public defender assigned to the case, was stunned, but he couldn’t tell anyone.  “All of a sudden, time just stands still in a way,” Hughes said. “I don’t know whether ethical behavior is always the same as being a moral hero. Maybe if I were some moral hero, I would have told. But it was very clear-cut to me that the only ethical course was that it was not in my client’s interest to reveal it, and of course I did not.”

Cashwell was tried first, convicted of the double murder and sentenced to two life terms.  Hunt was tried later and convicted in October 1986. He also received two life sentences.  The only physical evidence connecting Hunt to the crime was a bullet lead analysis conducted by the FBI. It appeared to show that crime-scene bullets matched those in a box that Hunt owned. Scientists now say the bullet lead analysis that the prosecutor relied on is misleading and should not be used as evidence.  The remaining evidence against him was from Hunt’s co-defendants: drug dealers who had agreed to testify against Hunt in exchange for immunity or reduced prison time for their roles in the crime.  “It was awful, because I know what’s going on in the courtroom down the hall from my office is a bunch of fabrications,” Hughes said, recalling his reaction to Hunt’s trial years ago.

Hunt was 16 years into his prison sentence when Cashwell committed suicide in prison in 2002.  With his client dead, Hughes said, he immediately thought of revealing Cashwell’s secret. But he decided to wait, knowing that the Supreme Court was considering a crucial ruling on an unrelated case in Wake County that explored whether a dead person’s confidentiality trumped the search for justice.

In 2003, the Supreme Court said that a judge can force a lawyer to reveal confidential statements from a dead client. The decision helped crack the arsenic poisoning case of Eric Miller, leading to his wife’s arrest and conviction.  Bolstered by that decision, Hughes eventually decided he would reveal his dead client’s confession. In 2004, Hughes called Rich Rosen, who is known for handling cases for prisoners who insist they are wrongly convicted, and said he had evidence that could help prove Hunt’s innocence.  Hughes drove from his home in Chatham County to Rosen’s office at UNC-Chapel Hill, where Rosen is a law professor. After brief pleasantries, Hughes spilled the secret.

“What he was saying was so obviously true,” Rosen said. “I contacted Hunt and told him that I wanted to come see him and I was willing to take on the case.”  Hughes later returned to Rosen’s office to sign a sworn statement. He was now a witness for Hunt’s defense team, and the investigation into Hunt’s case took a new turn.

Hunt’s case landed back in court when Rosen filed a motion to get Hunt a new trial based on the faulty bullet evidence and Hughes’ statement of Cashwell’s confession. A hearing was held earlier this year in Cumberland County, before Judge Jack Thompson. Thompson declined to comment about the case.

As Hughes began to testify about the confession, Thompson gave him a blunt warning.  Be aware, Thompson said, that he planned to file a complaint with the bar against Hughes for testifying.  “I said, ‘Yes, I understand,’ and I think he was just telling me what he was going to do,” Hughes said.

Thompson rejected the testimony. Hughes told what happened anyway, to establish a record for an appeal.  The N.C. Appeals Court refused to consider hearing the case, leaving Hunt with one rarely successful option -- a request to the N.C. Supreme Court to review his case.

Meanwhile, Hughes received a letter from the bar asking for a response to an allegation of a violation of ethics.

Hughes’ case represents the larger ethical dilemma many lawyers face, said Jim Coleman, a professor at Duke University Law School. There is no clear right or wrong, he said.  “On one hand, you have the attorney-client privilege and the value it has because it protects the client,” Coleman said. “And on the other hand, you have the question about justice, and the fact that you have information that can prevent the miscarriage of justice.”

Thompson’s warning to Hughes is a professional duty that all lawyers are bound to do, Coleman said.  “What the judge is trying to do is prevent him from making the disclosure and tell him as a lawyer in North Carolina, he will report it to the bar,” Coleman said. “Lawyers in North Carolina have an obligation to report alleged misconduct by other lawyers.”

Bar rules contain an exception that a lawyer can reveal a client’s confidential information to prevent “reasonably certain death or bodily harm.”  “He’s not killed, but for all practical purposes, he’s lost his life and he’s lost his liberty,” Coleman said of Hunt.

Hughes said he doesn’t know Hunt and has only spoken with the inmate once, years ago outside a magistrate’s office in Fayetteville. But he hopes he risked his career so that one day, he can meet Hunt again -- as a free man.

“It’s not that I’m not apprehensive about the possible consequences, because I am,” Hughes said. “But when you think about that up against the fact that this guy is innocent and has been locked up, it puts a different light on that.”

Comments

[steve lubet]

What is the Monroe Freedman view on this trilemma variation?

[Monroe Freedman]

I stated it in class this evening, and will post it after others have expressed views.

[james Fischer]

There is an argument that lengthy terms of imprisonment, particularly for an innocent individual, do constitute great bodily injury. But beyond that point is the larger issue whether the professional code should prohibit disclosure in these circumstances. Client confidentiality is an important professional ideal, but ideals can be loved too much. Voltaire put it nicely" The best is the enemy of the good. An unrelenting adherence to client confidentiality can lead to great injustice. Here the client is deceased, but an arguably innocent man remains incarcerated for a crime he didn't commit. While the duty extends beyond the termination of the lawyer-client relationship and the privilege extends in most jurisdictions beyond the death of the client, is this really an appropriate case to emphasize the ideal over the real? Hughes may have violated the technical letter of the law. I would hope the bar would recognize the justness of Hughes's effort to free an innocent man and decline to prosecute.

[Andrew Perlman]

Without endorsing it, I'll note a rather unusual provision in Massachusetts. Rule 1.6(b)(1) allows for the disclosure of confidential information in order "to prevent the wrongful execution or incarceration of another." The unique (?) provision served as fodder for a great episode of The Practice a few years back.

[John Steele]

This matter might replace Spaulding v. Zimmerman. True, in Spaulding v. Zimmerman it was "death vs. confidentiality," but under most states' confidentiality rules, under (all?) states' discovery rules, and (I am told) under all states' medical practice rules, the hidden condition in Spaulding would today be revealed. But this fact pattern remains quite plausible and modern.

[David McGowan]

Andy--Why the hesitance to endorse such a sensible position? I am a weak-kneed utilitarian, and the utilitarian calculus for this problem is easy: The deceased client has no reputational interest in a false impression of innocence (cf the tort rule that one cannot defame the innocent), so the cost there is likely to be trivial, while the cost to the wrongly imprisoned/convicted is extremely high. The notional cost to the state of getting the wrong person (thus possibly leaving a dangerous person at large, though apparently not in this case) is high, too. Bentham had the privilege calculus pretty much right, but even if one disagrees with his view this should be an easy case for disclosure, and thus for disclosure without discipline.

DM

[David McGowan]

Andy--Why the hesitance to endorse such a sensible position? I am a weak-kneed utilitarian, and the utilitarian calculus for this problem is easy: The deceased client has no reputational interest in a false impression of innocence (cf the tort rule that one cannot defame the deceased), so the cost there is likely to be trivial, while the cost to the wrongly imprisoned/convicted is extremely high. The notional cost to the state of getting the wrong person (thus possibly leaving a dangerous person at large, though apparently not in this case) is high, too. Bentham had the privilege calculus pretty much right in general, but even if one disagrees with his general view this should be an easy case for disclosure, and thus for disclosure without discipline.

DM

[Andrew Perlman]

David,

I agree with you in theory (I tend towards utilitarianism myself), but the Massachusetts provision is not limited to the situation where a client is deceased. The Massachusetts rule would allow me to rat out my living client in order to spring a non-client from prison. Perhaps I should have the discretion to do so, but the calculus is not entirely clear to me.

Another problem is determining what level of knowledge is necessary before revealing this sort of information. Does it have to be beyond a reasonable doubt? More likely than not? The Massachusetts rule is silent in this regard, making it possible for a lawyer to disclose a client's confidences on the mere suspicion that it will help lead to the release of an innocent person.

If pressed, I'd probably say that the Massachusetts provision is a good idea. The reality is that very, very few criminal defense lawyers will exercise their discretion under this rule, so it would likely only come up in circumstances that truly merit disclosure. Indeed, I don't know of a single reported case in Massachusetts where this Rule was cited as authority for such a disclosure.

[John Steele]

David,

I not necessarily disagreeing with you, but in that Berlin case (SCOTUS re the Vince Foster suicide), wasn't there a notion that once people understand that the lawyer's lips are loosed upon death, there will be less disclosure to lawyers? In other words, there is still a utilitarian objection to revealing. (I don't know how to begin to measure it. It does seem very small to me.)

[David McGowan]

I think the utilitarian calculus favors disclosure with the living client as well, both beause the true malefactor deserves punishment and because the falsely accused does not. Reputational constaints on the lawyer would doubtless be sufficient to reign in any excessive reporting risk. (Anyone know of any major whistleblowing under the revised 1.6/1.13, for example?) Deterrence, and thus social welfare, favors accurate punishment.

I am skeptical about the risk that clients will clam up without the privilege. It does lower the risk to them of disclosure, but you could deal with much of that by requiring a showing of need, as in work product. And the risk that the client will suffer if the lawyer is blindsided would compel a lot of disclosure without the privilege. Note that disclosure by entity constituents is common even though they have no guarantee of confidentiality, particularly if the entity wants to hang them out to dry.

DM

[Bob Condlin]

Andy, wasn't there a Charles Stuart case in Boston about 15 years ago that involved a strikingly similar set of considerations (a dead client's interest in the preservation of confidences versus the law enforcement interest in solving a murder)? Though, as I recall, in that case the lawyer did not want to disclose the information and a prosecutor sought to force him to testify before a grand jury. How did it come out?

I suppose it's nice to have another real life example of the "John Wilkes Booth's lawyer" problem, though if Frank Armani's experience is a guide, Hughes will have to wait another 25 years for his award from the ABA and survive a lot of trauma in the near future. I hope he's up to it.

[Andrew Perlman]

Bob,

Nice call. That infamous case did raise some similar issues. See here: http://query.nytimes.com/gst/fullpage.html?res=9C0CE6DC133BF936A35757C0A966958260

As far as I know, though, nobody raised the unusual version of 1.6. That makes sense for two reasons. First, Massachusetts did not adopt the Model Rules until several years later, and I don't know if the unusual exception that exists now existed back then.

Second, the lawyer in that case (as you note) did not want to reveal the information, so the case really only involved the issue of whether the lawyer could be compelled to testify about a conversation that he had had with his now deceased client. To put it another way, the Stuart case involved whether the attorney-client privilege survives death, not (as in the more recent case) whether the duty of confidentiality survives death. It's a subtle difference, but a notable one.

[Monroe Freedman]

When analyzing issues of confidentiality, we ordinarily focus on the language of the applicable rule that effectively defines confidential information. In the Model Rules, that language is “information relating to the representation of a client” (MR 1.6). In the Model Code, it included “information gained in the professional relationship” (DR 4-101). In the 1908 Canons, the reference was simply to a duty to “preserve his client’s confidences” (Canon 37).

However, there is a qualification on the protection of confidentiality which is not ordinarily material to analysis. That is, client information is not protected by a duty of confidentiality if divulging the information would not harm or embarrass the client in any significant way.

In the early Canons, for example, the specific proscription is against disclosing information “to the disadvantage of his client” (Canon 37). Similarly, in the Model Code, the information protected is limited (although very broadly) to that which the client asks to be kept confidential or to that which “would be embarrassing or would be likely to be detrimental to the client” if divulged (DR 4-101). Also, EC 4-7, in discussing cases of discretion to disclose, refers to “disclosure adverse to the client’s interest” as the ultimate consideration.

The text of MR 1.6 does not expressly include reference to information that is not disadvantageous, embarrassing, or detrimental to the client. However, it is reasonable to read the rule to include that century-old, common-sense aspect of confidentiality. Moreover, comments to other provisions of the Model Rules expressly recognize that MR 1.6 includes the qualification that there is no proscription against revealing client information if disclosure does not harm the client in any significant way.

For example, citing MR 1.6 and other rules, Comment 5 to MR 1.8 says that “[u]se of information relating to the representation to the disadvantage of the client violates the lawyer’s duty of loyalty.” The comment adds that the rule prohibits “disadvantageous use of client information.”

Also citing MR 1.6, Comment 5 to MR 2.3 distinguishes a case in which it is “reasonably likely that [disclosing the information] will affect the client’s interests materially and adversely” from a case in which disclosure “poses no significant risk to the client.”

In the case we’re discussing, therefore, I would say that the lawyer is permitted to disclose the exculpatory information about the client’s co-defendant after the client has died. Prior to that time, it is conceivable that the client could be disadvantaged by disclosure, e.g., by a change in the parole rules or the possibility of release as part of an effort to reduce the prison population. In this case, however, once the client is dead, there is not likely even to be embarrassment to his survivors (which is a legitimate concern of clients). The client has been convicted and has served 16 years of his sentence. His admission that he did not have an accomplice does not appear to pose a significant risk of affecting his interests materially and adversely. However, if he has survivors, and if I had any reason to believe that they continue to believe him to be innocent, I would not reveal the information.

[steve lubet]

DR 4-101(A) is disjunctive, protecting information that is "embarrassing or detrimental" *or* that the client "has requested be held inviolate." The latter presumably would apply even to non-embarrssing and non-detrimental information.

Monroe: how would your analysis apply if Cashwell had asked Hughes to keep everything inviolate?

[John Steele]

Steve,

thanks for your question -- a very good one.

Also, can it be true that we have no interest in our reputation after death? And what would happen to client-lawyer trust if we decided that no client has a protectable reputational interest that survives death?

[Andrew Perlman]

NPR recently had a nice introduction to this story: http://wunc.org/tsot/archive/sot1130a07.mp3/view

[Monroe Freedman]

Steve, I would follow the client's instructions. I didn't mention it because there's no indication that there were such instructions in this case.

John, I think I answered your question in the last sentence. If there were a significant reputational interest, I wouldn't reveal the information. Unless there are survivors who continue to believe Hunt to be innocent, however, there doesn't appear to be any reputational interest in this case. He's been convicted and served 16 years, and there's no indication that he has been claiming innocence.