When should lawyers be required to reveal information that will hurt their clients’ chances in court?
The following story is a variation on a tale told by a good friend when she was head of the Public Defender’s office in a major U.S. city. We challenge you to tell us whether the lawyer in this situation should or should not have kept the secret.
A legal-aid lawyer was assigned to represent a man accused of robbing a “Mom and Pop” convenience store. The defendant had been identified by both “Mom and Pop” in a police line-up. The legal aid lawyer was assigned the case just after arraignment. Due to his case load, he was not able to start preparing a defense until some months later, shortly before the trial was scheduled to begin.
The lawyer interviewed his client, who claimed he didn’t remember what happened the night of the crime. The lawyer then tried to locate the witnesses, “Mom and Pop.” But the convenience store had closed permanently, none of the neighbors seemed to know where “Mom and Pop” had gone, and the Post Office had no record of their new address. Almost as an afterthought, he checked with the wholesale company that had served the convenience store. The company had the new address and the lawyer was able to talk with “Mom and Pop.” When they picked the defendant from a half-dozen photographs, there seemed little likelihood that defendant would escape conviction if the case went to trial.
That very night, however, the Assistant District Attorney in charge of prosecuting the case called to say that he planned to move to dismiss because the only witnesses to the crime, “Mom and Pop,” seemed to have disappeared. The lawyer was then faced with the decision whether or not to reveal the whereabouts of “Mom and Pop.”
If the decision were left to the defendant, the answer would obviously be “no.” From society’s perspective, on the other hand, it is hard to argue that the lawyer should remain silent about “Mom and Pop.” Which perspective should prevail? Most lawyers we know say they would remain silent. Almost all non-lawyers among our friends say they would disclose the whereabouts of the witnesses.
The American Bar Association’s Code of Ethics prohibits—with few exceptions—revealing information about a case unless the client consents. There is another side, however, against such secrecy: All lawyers, including defense attorneys, are officers of the court. As part of the justice system, shouldn’t lawyers have a duty to reveal vital information such as the whereabouts of key witnesses, even if the witnesses will testify for the prosecution?
Most lawyers among our acquaintances argue that if this “duty to reveal” were a hard and fast rule, their clients would be less likely to tell them the whole truth. A defendant might well withhold some of the facts from a lawyer if the lawyer were required to tell those facts to the court. Without the complete story, so the argument goes, lawyers cannot provide the best legal representation.
The American Bar Association’s Model Code of Professional Responsibility does say that a lawyer may not allow a client to commit perjury. If a lawyer knows a client’s testimony in court is false, the lawyer must “take reasonable remedial measures,” which may include informing the judge. In short, under current rule, a lawyer must keep a client’s secret unless the client testifies falsely in court. Of course, a defendant in a criminal case need not testify at all. The prosecution must prove guilt beyond a reasonable doubt, whether or not the defendant testifies.
*Thomas Ehrlich & Ernestine Fu are the co-authors of Civic Work, Civic Lessons: Two Generations Reflect on Public Service. Tom Ehrlich’s public service has been primarily in the federal government, while Ernestine Fu’s has been in non-profit organizations.