"innocent accused" scenario, in which a client comes to a lawyer and
confesses a crime for which an innocent man has been accused is frequent
fodder in legal ethics classes. Typically the focus is on concepts of
confidentiality and privilege or, perhaps, whether a lawyer can, or
should, reveal what the client has confessed in the interest of
“justice” or "truth." The focus in this article, which is one of several
comprising a symposium edition in The Ohio State Journal of Criminal
Law – entitled "Confidential Confessions: How Lawyers, Clergy and
Psychologists Counsel the Guilty" – is different. Its charge is to
compare how members of various professional disciplines would counsel
the confessing client in this situation, particularly about whether
“moral considerations” ought to be a part of the counseling, and, if so,
in what form. (The factual aspect of the hypothetical is based loosely
on Morales v. Portuondo, 154 F. Supp. 2d 706 (2001)). The jumping off
point, as it were, is that a former client, named Steven, has come to
the lawyer's office and, after explaining the situation in which he
finds himself, asks: "What do you think I should do?"
This particular article approaches the problem from an attorney's point-of-view, specifically this author's – the director of an innocence project whose client base is composed of wrongfully convicted prisoners. The article argues that a conversation with Steven about “moral considerations” is not only wise, but an absolute professional requirement. As the article explains, however, that position does not arise out of the context of “innocence work” as a specific practice area, or put differently, the requirement of “moral counseling” is not the result of valuing “innocence” as the predominant moral coin of the realm. Instead, this article urges that such counseling is part and parcel of attorneys’ fundamental obligation to the client, culpable or not.
While the wrongfully convicted – or, in this case, the guilty but free – adds a certain urgency to the attorney-client counseling and poignancy to the issues that confront it, an attorney’s obligation to counsel the client is frequently not only the most important aspect of the attorney-client relationship, but one that many lawyers are uncomfortable with and as a consequence devalue or even ignore. Sadly, this approach is reinforced by courts’ treatment of the value of counseling, which as a matter of law is almost completely factored out of any consideration that gauges the effectiveness of an attorney’s representation.