Preventing a Wrongful Execution or Incarceration

What do Massachusetts and Alaska have in common (beyond the need for antifreeze)?  It turns out that they share an unusual exception to the duty of confidentiality.

Massachusetts has an oft-discussed exception to Rule 1.6, which permits lawyers to disclose confidential information "to prevent the wrongful execution or incarceration of another.'"  We've discussed it in a variety of posts (see, e.g., here and here), and it came up at the recent National Conference on Professional Responsibility in connection with the Alton Logan case.

Until today, I had been under the impression that Massachusetts was the only state to have such an exception.  I just discovered, however, that Alaska adopted an identical exception as of April 15, 2009. 

The adoption of the exception in two states does not make a trend, but for reasons set out in the earlier posts, I believe it is a worthy addition to the rules.  For those of you who are involved in your state's rule making process, the exception is worth some consideration.

Comments

[Alice Woolley]

In Canada there is an exception to privilege for "innocence at stake". Under this privilege an accused may compel production/testimony that violates a 3rd party's privilege, albeit under relatively narrow circumstances. When the exception is exercised rights accrue to the third party - specifically use immunity and derivative use immunity. Interestingly, there is no matching exception to confidentiality under the various provincial codes of conduct. So the lawyer for the third party can be put in the difficult position of knowing that someone else could compel production of the information, but being unable to reveal the information without violating her confidentiality obligations. This seems to create an anamoly which the Mass. rules would avoid. On the other hand, it seems to me that to have the confidentiality exception without the kind of protections that arise under the exception to privilege goes too far. The third party with the privilege is entitled to some protection from the dangers that could arise upon the information being revealed (i.e., prosecution and conviction).