Texas Wesleyan Law Review


Ken Strutin

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When a client admits to her lawyer that she is responsible for a crime that someone else has been charged with, it alters the geometry of the attorney-client relationship. A third party has now entered the room triangulating the lawyer's responsibilities to her client, to the innocent party and to the justice system. The idea of revealing a client's private confession is anathema to lawyers trained to carefully guard their clients' secrets. Fidelity to the client, preservation of confidences, and the right to counsel strongly militate in favor of nondisclosure. On the other hand, an innocent person is facing a wrongful prosecution, incarceration and, in some cases, execution. The pressures to protect the confessing client while at the same time preventing harm to a nonclient from a wrongful conviction are at the heart of a complex ethical and practical conundrum. The ABA Model Rules of Professional Conduct allow discretionary disclosure where the lawyer believes that a third party faces "reasonably certain death or substantial bodily harm." And two states have gone so far as to expressly include "wrongful incarceration" in their exceptions to confidentiality. This Article will look at the ethical pathways and the multilayered constitutional and evidentiary analyses in assessing the propriety, necessity and method of disclosure. Other options will be considered that might avoid forcing an attorney to choose between client loyalty and confidentiality or preserving an innocent nonclient from substantial harm, such as transactional immunity for the confessor. Lastly, a review of the implications for the adjudication of innocence claims and systemic reform will be conducted, along with an examination of the constitutional imperatives surrounding the attorney-client and attorney-justice relationships.



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