More than 100 high school students from across lower Michigan will gather February 17-18 at the University of Michigan for the fifth annual Michigan High School Ethics Bowl. The winner will represent Michigan in the National High School Ethics Bowl held at the University of North Carolina at Chapel Hill in April. The Ethics Bowl is organized by A2Ethics, the University of Michigan Department of Philosophy Outreach Program and the high school faculty coaches in the High School Ethics Bowl League. During the two-day competition, judges evaluate teams’ responses to case studies written by local community members.
See? There is hope!
Here are the case studies the students will analyze, fifteen of them. I may do posts on a few of them suggestions are welcome. One of them, #2, I have discussed in several legal ethics seminars:
The Michigan Rules of Professional Conduct forbid lawyers from revealing information received in confidence (information protected by the “lawyer-client privilege” of a client), and similarly from using that confidential information for the advantage of a third person, unless the client consents.
You are a lawyer whose practice is focused almost exclusively on criminal defense. You have been active in the criminal defense bar association for several years, and you represent criminal defendants at both the trial and appellate (appeals court) levels.
One of your clients, Gilbert, age forty, is in prison for murdering a woman named Alice. You represent Gilbert in the appeal of his conviction and life-without-parole sentence. During confidential meetings with Gilbert, he confesses to you that he also murdered Bob, and he acted alone when he did. Although you were not involved with the case of Bob’s murder, you are somewhat familiar with it and know that a man named Enrique was convicted of Bob’s murder and is consequently serving a sentence of life without parole. Enrique’s conviction and sentence were recently reaffirmed after a thorough, years-long appeals process. Unless new evidence comes to light, he will not be able to appeal again.
After you are unsuccessful in challenging Gilbert’s conviction and sentence for Alice’s murder, you speak with him about Bob’s murder. He repeats his confession, this time in more detail, but refuses to consent to your request to reveal the confession on Enrique’s behalf.
Questions (with my answers):
- Should you reveal Gilbert’s confession, in spite of your professional obligations to respect the privacy of your clients? Is revealing the confession morally required, forbidden, or merely permitted?
Answer: Luckily I’m a Massachusetts lawyer, so if this occurred in my state, I would have a special exception that allowed me to divulge a confidence to “prevent a miscarriage of justice.” But what is ethical is ethical, regardless of rules. Massachusetts’ unique exception to Rule 1.6 is too broad, but the situation in Question 2 is ethically clear, if hard on the lawyer involved. You reveal the confession. A life hangs in the balance, and your client won’t be harmed by the revelation.This is the Ethics Incompleteness Principle: lawyer-client confidentiality must be absolute, but there are exceptions to every ethics principle.
2. If you choose to reveal the confession, are you morally obligated to do so openly (regardless of how you may be penalized as a result), or is it permissible to report your tip anonymously?
Answer: Yes. You violate the rule openly, and walk into the bar disciplinary committee saying, “I know I violated the rules, but in this case, I am convinced it was the most ethical course. I would do it again. I accept full responsibility for my actions, and any discipline you deem appropriate.”
The formal rule violation is the same whether you do it openly or anonymously, so ducking accountability is cowardly, without any ethical justifications. The fact that there are unpleasant consequences looming if the lawyer breaches lawyerr-client confidentiality is a non-ethical, not an ethical, consideration.
3. To what extent, if at all, is it morally relevant that your professional code explicitly forbids you from revealing this information, and you will be censured if you reveal it?
Answer: By definition it’s morally relevant, since the revelation breaches the profession’s moral code. It isn’t ethically relevant, however. The presence or absence of a rule changes what is compliant, but not what is right.
4. Are there any actions short of revealing the confession that you ethically ought to take?
Answer: Unless the lawyer can persuade his client to reveal the truth himself, the answer is no.
This situation in Question #2 has occurred in various variations over the years.. In the cases where the lawyers revealed the confession, they did not receive serious sanctions. Nonetheless, any lawyer who does reveal such a confession—unless he or she is in the Bay State should be prepared and willing to forfeit the right to practice law. A human life is more important.