COMMENTARY: Lawyer-client privilege comes at very high cost

By Berl Falbaum

Is there anyone—anyone—out there who would accept and endorse the following:

A policy that lets innocent people rot in prison for decades or even be executed when lawyers representing the guilty parties refuse to speak out because they don’t want to violate lawyer-client privilege.

Nay, you say. That’s impossible. No one would defend such an unconscionable, inhuman, perverse, circumstance.

Well, there is a sector of our society that endorses such a policy and does so proudly. The legal community. Yes, the very legal community that is dedicated to pursuing truth and justice.

Why? Because it is defined in its legal code of ethics. You read that correctly. This is protected under legal ethics.

Permit me to explain.

With this column, I complete a futile five-year campaign to have that “ethical” code changed. It ended for me after a decision recently by the Michigan Supreme Court. But first some background.

I wrote a book, (“Justice Failed: How ‘Legal Ethics’ Kept Me in Prison for 26 Years,” Counterpoint Press, 2017), on Alton Logan, a black man in Chicago, who served 26 years under those exact circumstances.

Logan was wrongly convicted—in two trials nine years apart—of fatally shooting a McDonald’s security guard, a murder committed by another man, Andrew “Gino” Wilson, who later was arrested and convicted in the fatal shootings of two other police officers.

Four lawyers knew from the very beginning that Logan was innocent because Wilson confessed to them that he committed the murder. What did the lawyers do?

They felt compelled to keep silent because the legal ethical code forbids lawyers from revealing any information which might harm their client. They wrote an affidavit stating that Logan was innocent, signed it, had it notarized and locked in a strong box which one of the lawyers kept under his bed for 26 years.  

Logan was “lucky” because he was exonerated after Wilson died in prison.  He had given his lawyers permission to speak out after his death.

Indeed, during my research, I discovered that another man, Lee Wayne Hunt, was in the Maury Correctional Institution in Raleigh, N.C. under the same circumstances. When the lawyer, who represented the real murderer who died, went to court and testified that Hunt was innocent, Cumberland County Superior Judge Jack A. Thompson, would not accept the testimony, stating that the attorney violated lawyer-client confidentiality.  

If that were not enough, Thompson reported the attorney to the state bar for an ethics violation. The bar took no action on the complaint. (I tried to interview Thompson; he did not return my messages). Hunt died in prison after having served 30 years for a crime he did not commit.   

I could not believe the story on Logan when I saw it on “60 Minutes.”  It is impossible to accept that lawyers would let an innocent person rot in prison knowing—the key word is “knowing”—that he/she is innocent. Indeed, Logan faced the possibility of the death penalty; the jury voted 10-2 to put him to death—two votes saved him.

Since the book’s publication, I launched a one-man campaign to try and have the ethics code changed. (Others have tried as well through the years). I believe it would not be difficult to amend the code and still protect privileged information received from clients while setting the innocent free.

In the book, Logan and I offer several proposals which would do just that.  As a matter of fact, three of the four lawyers who kept silent, whom I interviewed, also gave us recommendations on how to change the code.

Here is just one: Lawyers representing the guilty party would appear “in chambers” before one judge or a panel of judges or a grand jury and lay out the facts that their client for which an innocent person is serving time committed the respective crime. This testimony would remain secret and could not be used against their client. The judges or grand jury would rule accordingly and the innocent would be set free.

These kinds of “deals” are made routinely in the law. Immunity is offered to many guilty parties, and grand jury and in chambers sessions are secret proceedings.

If this suggestion or others need tweaking, let the tweaking begin. It is not difficult to find a solution!

During the last four years, I contacted the American Bar Association, state bar associations, and numerous legal organizations, all to no avail. I tried to launch a petition campaign. That failed also.

The State Bar of Michigan, which I contacted in 2017, apparently thought I had a point and established a committee to study the issue. I was interviewed but since then, every time I checked, I was told the committee was still working on it. If it hasn’t died in the State Bar offices, I am confident it is in a very deep coma.

Then I learned that I could appeal directly to the Michigan Supreme Court which, after public comment, could change the ethics code.

I filed a petition with the Supreme Court more than a year ago. Two weeks ago, I received a reply from Sarah Roth, Michigan Supreme Court administrative counsel. The relevant part of her email stated:

“After a robust discussion, the Court has decided not to publish the proposal for comment at this time.”

Translated that means, the Court decided, robustly no less, to do nothing. Judges with, arguably, the best legal minds sitting on Michigan’s “supreme” court who are committed to the highest standards of justice, have no problem with letting the innocent rot in jail or be executed.  

Thus, it is fair to conclude that Michigan’s justices find nothing offensive about these two cases, and are prepared to accept that others might languish innocently in prison or may be put to death.

If you think the ethics code that I described above cannot get any uglier consider: The most outrageous provision holds that lawyers may break their silence if their clients did not pay outstanding legal fees. In other words, a lawyer’s fees are more sacrosanct than human life.

So, I have a question for the justices: If you or your loved ones were rotting in prison or facing execution—in other words, you were in Logan’s and Hunt’s shoes—and had the power to change the ethics code, would you do so or support and endorse the silence of those who could set you free?

No need to reply. Everyone reading this column knows the answer.
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Berl Falbaum is a veteran journalist and author of 12 books.