Stunning Ethics Case in Virginia

The New York Times has the story. 

Basically, a lawyer represented one of two men in the late 1990's who was accused of killing another man during a robbery.  A critical issue in the case was who pulled the trigger, as only that person could be sentenced to death. 

The lawyer and his client met with the prosecutor, and the client started to give a description of the killer that was inconsistent with the other defendant's guilt.  The prosecutor turned off the tape recorder, coached the defendant as to what his statement needed to be, turned the tape back on, and then got the statement that he needed to get a death sentence against the other defendant, a man named Daryl Atkins (who was a party to the well-known Supreme Court case establishing the unconstitutionality of executing the mentally retarded).

The lawyer who witnessed this prosecutorial misconduct never notified the lawyers for Atkins, presumably because his own client got life in prison instead of a death sentence.  Nevertheless, the lawyer's conscience troubled him, and after repeatedly asking the bar authorities in Virginia, he recently received permission to reveal the information to the court. 

For readers of this blog, the interesting question is whether the ethics rules in Virginia permit this disclosure, because according to the article, there is some disagreement about it.  In particular, the report required disclosure of confidential information that might adversely affect the lawyer's previous work for his client (i.e., getting him life instead of death).  Moreover, the lawyer had not put on any false testimony or committed a fraud on the court.  Rather, it was the prosecutor who committed the misconduct, so it's not entirely clear that the lawyer even had discretion to report this information.

On a popular legal ethics listserv, someone suggested that, if this case had been in Massachusetts, the answer would have been clear.  Massachusetts has an unusual rule, which permits lawyers to disclose confidential information "to prevent the wrongful execution or incarceration of another."  (As an aside, there was a great episode of the Practice a few years ago, which turns on this provision.  There's even an explicit discussion in the episode of the Massachusetts version of Rule 1.6(b) and how it differs from all other states in this small respect.  You don't see chapter and verse of ethics rules cited too often in a prime time drama, so it's a real classic for legal ethics nerds.  If anyone wants a pointer to the episode, let me know.)

In any event, there is no case law that I know of that interprets the Massachusetts Rule, but I could imagine an argument that a "wrongful" execution or incarceration only occurs when the wrong person was convicted, not "merely" when a person's rights were violated during the proceeding.  Put another way, I had always thought of this exception as one meant to address the hypos we profs use in class: a lawyer learns that someone committed a crime for which a third person is currently incarcerated or about to be executed.  That scenario is slightly different than the present case, where Atkins may in fact still be guilty, but his conviction was severely tainted by prosecutorial misconduct.  Personally, I think the Massachusetts rule should still cover the Atkins scenario, but I think there is at least an argument that the Rule wouldn't stretch that far.

As for Virginia, I was curious about Rule 3.3(d), which says that "A lawyer who receives information clearly establishing that a person other than a client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal."  In this case, it seems to me that the lawyer in question received information that another person (i.e., the prosecutor) was perpetrating a fraud on the tribunal during the prosecution of Mr. Atkins.  I could be misunderstanding some of the basic facts here, but that provision does seem to apply.  Perhaps there is an exception to this obligation when it would lead to the revelation of one's own client's confidential information, but I didn't see anything in the Virginia rules to this effect after a rather cursory look.  Does anyone know why 3.3(d) wouldn't have applied here right from the start of this case?

Comments

[Alan Childress]

Andy,
Thanks for this. I also noticed some good comments on the matter (including a cite to a previous LEF post on another matter) over at PrawfsBlawg, http://prawfsblawg.blogs.com/prawfsblawg/2008/01/tomorrows-legal.html#comments

[John Steele]

Andy,

When I looked at 3.3(d) this afternoon I had the same thought you had, so I'm glad you've pressed the point.

Also, what exactly is the Virginia State Bar's theory? Does their rule on confidentiality yield different results once the consequences for the client change? If so, where is that in the rule? Where does it say, as the NYT suggested in its article, that a different result attains once the client's case can no longer be prejudiced?

I recall that in a listserv discussion a prominent Virgina ethics authority said that its confidentiality rule was so strong that a client could forbid a lawyer from cross-examining the opposing expert on publicly known facts -- because the client's control over confidences was that absolute. So I am puzzled.

Also, please note that the NYT article strongly suggests but does not definitively establish that the testimony being procured from the lawyer's conduct was prejurious. But, if it was, the lawyer would have had a duty much earlier to prevent or remedy the prejury, right?

Very interesting case, but as so often is the case with even the best of news accounts, it's a little hard to see exactly what happened.

[Wick Chambers]

Fascinating posts! Thank you. Is the original opinion of the Ethics Board available? Is there a link to the Va. rules?

What action should now be taken with respect to the charges against the prosecutor? The allegations bring Nifong to mind. Is there any reason to believe that this sort of prosecutorial misconduct is common, perhaps on the ground that the ends justify the means (a terribly misguided "justification")?

[Andrew Perlman]

Here's a link to the Virginia Rules: http://www.vsb.org/docs/rules-pc_2007-08pg.pdf

As for the prosecutors, I think this is an unfortunate and common problem. There are more cases than one might care to count of prosecutors failing to disclose exculpatory evidence (Brady violations). And that's just from reported cases. I can only guess how often this type of misconduct occurs without the defendant learning about it.

I'm not by any means suggesting that all or even most prosecutors commit this sort of misconduct, but I think it happens far more often than the public might suspect. Put slightly differently, I'd be willing to bet it happens as often as civil litigators "forget" to turn over smoking gun documents that are clearly discoverable, and I think that happens too often as well.

[Chris Robinette]

Hi Andy,

I haven't yet read the NYT article, so I may be missing some pertinent facts. One thing that may be relevant that I haven't seen discussed yet is that Virginia changed its rules in January 2000. The current Model Rules-inspired version was not in place when this incident occurred. The previous rules were (I think) inspired by the Model Code. That may have affected the advice given by the Virginia State Bar.

[Monroe Freedman]

For about twenty years I urged a change in the ethical rules to permit the lawyer to reveal confidential information in order to save innocent human life. See, e.g., “The Life-Saving Exception to Confidentiality: Restating the Law Without the Was, the Will Be, or the Ought to Be,” 29 Loyola (L.A.) L. Rev. 1631 (1996).

The change finally came, over the opposition of Chuck Wolfram and Geoff Hazard, in the Restatement. See id. That led to the recommendation for amendment to MR 3.3 by the Ethics 2000 Committee.

[Andrew Perlman]

Chris, there is a comment in the Virginia Rules that 3.3(d) was merely a carry over from the earlier Model Code. So I think the lawyer's obligation was the same back when this case was tried.

Monroe, I couldn't agree with you more about the scenario of the innocent person, but the present case is arguably different, because Atkins may still, in fact, be guilty. The information at issue suggests that the prosecutor engaged in misconduct, but it is not conclusive evidence of Atkins's innocence. Would you still be in favor of disclosure under these circumstances? I think I would, but I also think that the balance of interests is closer than in the demonstrably innocent death row inmate scenario.

[Chris Robinette]

Andy, I was thinking more of the change in confidentiality itself.

[John Steele]

Andy,

You're asking great questions. Yesterday I tried to recreate the witness coaching scene in my mind, using the NYT article. Some issues:

1. While the prosecutors are generally not under a duty to create Brady materials, isn't turning off the recorder once the interview went sour better characterized as altering Brady materials?

2. Under standard black letter law, you can vigorously test the witness's recollection in an interview, but you can't create false or misleading testimony.

OK, so did the witness get coached into flat out false testimony? If so, what precisely was the false fact? And, if so didn't his lawyer have grounds to do something way back when?

Or did the witness merely get tested on some of his memories that, upon thinking about and recreating the scene, didn't hold up? That is, did the prosecutor's efforts actually lead to more truthful, more accurate testimony? If that were the case, then the problem would be the failure to produce Brady materials and possibly the alteration of Brady materials.

[Andrew Perlman]

And your questions are even better. As you pointed out in your earlier comment, the devil is in the details, and we are short on details.

[Bob Condlin]

I agree with Andrew that propsecutor behavior of this sort is more common than one might expect, in part, I susepct, because courts and disciplinary authorities are reluctant to police it. Nancy Grace's run-in with the Eleventh Circuit over her shaping of a police detective's testimoney is a nice illustration of how the behavior gets swept under the rug. See Stephens v. Hall, 407 F.3d 1195 (11th Cir., 2005). For all of its agitted languate, the Eleventh Circuit ended up doing nothing of consequence. And Grace was a repeat offender. Rolling the dice on this kind of behavior is almost all upside for prosecutors. The Nifong case is the anomaly.

[Monroe Freedman]

Andy, Yes, my answer is the same if Atkins is (or, as far as we can determine now, appears to be) guilty. Part of my rationale for the exception is that death is different. For one thing, it moots any later-discovered evidence of innocence.

[Davis]

Very Very Interesting Case.Thanks for Posting.
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Davis.

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