The Autobiography of an Execution

that is at stake when a lawyer decides to pen a memoir.

Both the attorney-client privilege and the duty of confidentiality are driven by two essential considerations: (1) promoting candor and honesty within the attorney-client relationship[7] and (2) maintaining an appearance of loyalty.[8] When clients speak to their lawyers, it is desirable for clients to be as open and honest with counsel as possible, and these rules further that degree of openness. Good legal representation is facilitated by the lawyer’s knowing everything that the client knows, even if those things may be embarrasing or could be potentially harmful to the client or others.[9] In an effort to ensure that a client feels safe in disclosing all the lawyer may need to know, the law protects virtually all the communication between the lawyer and the client (as long as the communication occurred in the context of the attorney-client relationship).

In some circumstances, the privilege or duty of confidentiality may yield and permit the attorney to reveal otherwise confidential information. So, for example, when revealing confidential information may prevent the client from committing a future crime, an attorney is permitted to reveal that information.[10] Similarly, when the attorney’s revelation of confidential information may prevent reasonably certain death or bodily harm to another, the attorney is permitted to reveal confidential information.[11] The most recently recognized exceptions to the duty of confidentiality allow for disclosure of confidential information in order to prevent a client from committing a financial or economic fraud.[12] These exceptions have only recently been enacted, in response to the Enron scandal and other corporate abuses in which it was suspected that attorneys’ revelation of confidential information might have prevented vast financial ruin to thousands of people, had the revelation been allowed.

The ethical rules constraining lawyers rest on the belief that frank conversation between a lawyer and clients is aided when clients can be confident that the conversations they have with their lawyers will never be used to embarrass or injure them.[13] Therefore, we assure clients that all communication with their lawyers relating to legal representation will be kept secret forever, unless they consent to disclosure. If a client dies without consenting to the disclosure of confidential information, a lawyer is bound to keep that information secret forever.[14]

An additional concern driving confidentiality rules is based on principles of agency law.[15] A lawyer is the client’s agent. She stands as one with her client, helping the client navigate through the complexities of the legal system. The lawyer is to be her client’s advocate and counselor, single- mindedly devoted to her client. Talking to others unnecessarily about her client’s affairs evokes images of disloyalty. To keep secrets inviolate indefinitely is to be at one with the client, to show the utmost loyalty, whether to a current or former client. The ethical obligation to maintain client confidences concerns this appearance of loyalty, as do other ethics rules, such as the rules governing conflicts of interest.[16] Keeping a client’s secrets until told to do otherwise is part of being loyal, even if keeping the secrets means exhibiting that loyalty beyond the client’s grave.[17]

Not being able to talk to family or friends, not even to a spouse, about a large part of one’s life—the details of one’s workdays—can exact a heavy toll on lawyers. Perhaps keeping clients’ secrets—particularly where the stakes are very high or the secrets are dark—helps explain the high incidence of depression, substance abuse, and suicide within the legal community, one of the highest rates among those of all professions.[18]

Consider the recent story of attorneys Dale Coventry and Jamie Kunz. More than twenty-five years ago, Coventry and Kunz, Cook County public defenders, were assigned to represent Andrew Wilson against murder charges.[19] During that representation, Wilson confessed to his lawyers that he had robbed and murdered a security guard at a McDonald’s restaurant in January 1982, a crime for which another man, Alton Logan, was being charged. Bound by the attorney-client privilege, Coventry and Kunz kept silent as Logan was ultimately convicted and sentenced to life in prison for a murder he did not commit. Andrew Wilson had given his attorneys permission to disclose his secret only upon the event of Wilson’s death. In anticipation of that moment, in 1982, Coventry and Kunz executed an affidavit attesting to Wilson’s admission. They kept the affidavit in a lock box under the bed in one of the men’s bedrooms for a quarter of a century while Logan served prison time for a crime he did not commit. It was only in 2007, upon Wilson’s death, that they produced the affidavit to the authorities. In 2008, Logan was released from prison.[20] Both Coventry and Kunz now speak openly about the angst and torment they suffered as a result of being ethically bound to keep Wilson’s secret.[21] They also give thanks to their client, Wilson, for agreeing to allow them to disclose the secret, because without Wilson’s permission, they would both have had to take that secret to their graves. Both Coventry and Kunz have been celebrated by the legal community for the ability to keep their client’s secret.[22] In addition to being lauded by the legal community for keeping quiet for all these years, they should also be commended for having the foresight to acquire their client’s permission to reveal his secret after his death. Coventry and Kunz have been much less well received by the community at large.[23]

Everyone loves a good story, and lawyer stories can be among the best. However, lawyers are prohibited from telling the very best ones—the ones about their real, everyday life experiences with their clients (a fact I must remind lawyers who visit my classroom of all the time). Lawyer “war stories” can be fascinating and entertaining, but without client consent, telling war stories is a violation of a lawyer’s ethical obligations. A lawyer may discuss his cases only if there is no reasonable likelihood that the listener will be able to identify the actual client or case. Even a lawyer’s “hypothetical” story is prohibited by the ethics rules if it could reasonably lead to the discovery of a client’s identity, information, or the situation involved.[24] Similarly, labeling a story a work of fiction does not abrogate a lawyer’s ethical obligation not to reveal client confidences.

At the outset of The Autobiography of an Execution, the author tells us that he has gone to great lengths to disguise particular identities in order to fulfill his ethical obligations. He is required to do so. His ability to provide the very best legal representation for his clients is dependent, in large part, on his clients’ having confidence that their lawyer will keep their secrets forever. Even a lawyer who believes that it would benefit society to learn about the details of one of his cases, or who believes that it would be personally therapeutic to discuss one of his cases, confronts head-on the lawyer’s obligation to keep secrets. Of course, the safest ethical choice is to remain silent. However, if the decision is to tell his story, the lawyer must be very careful not to reveal his client’s identity, information, or confidences.

Meredith J. Duncan is the George Butler Research Professor of Law at the University of Houston Law Center, where she teaches in the areas of professional responsibility, legal ethics, criminal law, sexual assault law, and torts.

ABOUT THE AUTHOR

DAVID R. DOW is the University Distinguished Professor at the University of Houston Law Center, and the litigation director at the Texas Defender Service, a nonprofit legal aid corporation that represents death-row inmates. As an appellate lawyer, he has represented more than one hundred death-row inmates over the past twenty years. A graduate of Rice and Yale, Dow is the editor (with Mark Dow) of Machinery of Death, and the author of Executed on a Technicality: Lethal Injustice on America’s Death Row and America’s Prophets: How Judicial Activism Makes America Great, as well as a treatise on contract law. Dow is also the author of more than one hundred professional articles and essays, and his work has appeared in many popular publications, including the New York Times, the Washington Post, the Christian Science Monitor, the Progressive, the Texas Observer, the Dallas Morning News, and the Houston Chronicle. He resides with his wife, their son, and their dog in Houston.