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HearsayBy Stephen Anderson Editor Glass wall shields truthLawyers are responsible "for maintaining public confidence in the system of justice by acting competently and with loyalty to the best interests of their clients": Preamble to Illinois Rules of Professional Conduct. Preambles being intentionally aspirational, they lack the hard-and-fast authority of the rules that follow. A preamble can be subject to construing – or, perhaps, misconstruing. Here is another expectation. A lawyer is responsible for "defending the integrity of the judicial system against those who would corrupt, abuse or defraud it." Sometimes the best interests of clients conflict with a duty to protect the system from being abused or defrauded. But the gold standard of the legal profession, the principle that raises integrity to a pinnacle, is attorney-client confidence. Rule 1.6 is crystal clear on this. "A lawyer shall not, during or after termination of the professional relationship with the client, use or reveal a confidence or secret of the client known to the lawyer unless the client consents after disclosure." An exception is asserted in 1.6(b): "A lawyer shall reveal information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm." It has been difficult recently for the legal professional to justify to a lay person the example of a Chicago man who served 26 years in prison when two attorneys knew he did not commit the murder for which he was convicted (see story in this issue). They knew because their client, the actual perpetrator of the crime, told them. They were bound by Rule 1.6. Period. But by what standard is 26 years in prison NOT a sentence to "death or serious bodily harm," the lay person protests. An interesting concept, although one that has not been litigated successfully. Yes, sometimes that crystal-clear concept of attorney-client confidence appears to be a glass wall through which one may see the truth, but not touch it. In some states, mitigation has been added to the rule to prevent such a miscarriage of justice. In Massachusetts - where in the late 17th century, colonists accused of witchcraft were tried and hanged if they denied it – Rule 1.6(b) now seems more humane. Pursuant to other rules, a Massachusetts lawyer "must reveal" privileged information "to prevent the commission of a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm, or in substantial injury to the financial interests or property of another, or to prevent the wrongful execution or incarceration of another." Note the use of the verb "must," rather than "shall." The Chicago man, who was sentenced at age 28, walked out of prison at age 54 after a series of coincidences that began when the actual murderer died during incarceration. The attorneys subsequently retrieved the notarized affidavit of their client's guilt from the locked and secreted box in which it had languished for a quarter of a century. Although a judge vacated the conviction after hearing the new evidence, he also ordered a new trial. At this writing, the state's attorney's office had not decided whether to pursue the case further. It bears noting that members of the loyal family of the wrongly imprisoned man have said they are not bitter. They are not even angry with the two attorneys. "They did what they had to do," one said. Yes, they did. The attorneys followed the letter of the rule as it was drafted long ago. They kept a confidence inviolate, despite soul-searching and heartache. The lawyer-client privilege is a tenet worthy of daily reverence. You might add, however, that so are life, liberty and the pursuit of happiness. Counting the beans and butter patsOne can just picture drones in the office of state auditor general, hunched over their calculators, green eyeshades protecting their vision from the light of 21st century reality. Aha! they exclaim. Judges expended $48.43 each on lunches during a Chicago conference in 2006, and $31 each at another in 2007. But the Judicial Branch Travel Reimbursement Guidelines, they insist, set the standard at only $8 per person. No matter that the standard was meant only to apply to an individual judge on court business, he or she would have to endure the substandard dietary fare of a hamburger joint to comply with the obsolete eight-dollar limit. Face it. Upwards of $40 is par these days for contracted table service in a hotel large enough to provide space for several hundred judges, lawyers, doctors or plumbers to attend a full-blown conference. Valuable educational opportunities are worthy of better than skimpy sustenance.
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