According to the preamble of the Washington Rules of Professional Conduct, “a lawyer, as a member of the legal profession, is a representative of clients, an officer of the court and a public citizen having special responsibility for the quality of justice.” In true lawyer form, there is a conflict in this simple opening statement.
Consider the following scenario: An attorney represents a client and that client tells the attorney that he committed a crime for which another is facing trial or for which another already has been convicted. In the abstract, disclosure is contrary to the representation role, but silence is contrary to one’s responsibility to the quality of justice.
It seems attorneys tend to take root in the representation role and pay only lip service to the quality of justice. To gravitate to the representation role is comfortable and familiar, but in this scenario “quality justice” may take precedence over the representation role.
Client Confidences Amendment
The 2006 amendment to the client confidence rule, RPC 1.6, makes the water of this scenario even murkier. Washington’s Rules of Professional Conduct diverge from the American Bar Association Model Rules of Professional Conduct with regard to client confidences. Before 2006, both the Washington RPCs and the Model Rules allowed, but did not require, attorneys to reveal information relating to the representation of a client if the lawyer reasonably believed it necessary to “prevent” reasonably certain death or “substantial bodily harm.”
After the 2006 amendments to the Washington RPCs, the decision to reveal confidential information is no longer discretionary. This divergence has implications for an attorney who knows that another individual is, or will be, serving time in prison for a crime committed by his or her client.
Lawyers have been taught that the public interest is best served by preserving the confidentiality of information. The comments to Washington RPC 1.6 challenge this directive and instead place greater recognition on “the overriding value of life and physical integrity ... .”
When asked to value life and physical integrity, and when taking into account the responsibilities a lawyer has to ensure quality justice, consideration must be given in these situations to: (1) whether incarceration is substantial bodily harm; (2) whether lawyer disclosure can prevent that harm; and (3) whether a lawyer must prevent the wrongful incarceration, even when it is to the detriment of the lawyer’s client.
Incarceration as a Substantial Bodily Harm
There is no case law or any ethics opinion that addresses whether the Washington rule requires disclosure of information that could overturn or prevent conviction of an innocent individual. There is, however, evidence to support the assertion that prison inmates, in general, are subject to a present and substantial threat of bodily harm.
The leading support for this interpretation is the Restatement (Third) of The Law Governing Lawyers § 66, comment c (2000), which provides that “serious bodily harm,” in the context of exceptions to the general rule of confidentiality, “includes life-threatening illness and injuries and the consequences of events such as imprisonment for a substantial period and child sexual abuse.”
A look at the prison system, generally, tends to support a certain level of predictability that an inmate will face bodily harm in prison. The homicide rate in prison is about eight times that outside of prison and the assault rate is at least 20 times higher.1
The greatest risk of assault comes from fellow inmates. In 1997, 10% of state inmates and 3% of federal inmates reported being injured in a fight since entering prison.2 There are multiple reasons for this violence, including the explosive mixture of personalities inherent in any prison setting, overcrowding prevalent in many prisons, lack of supervision and control, and the motives of the aggressor to gain enhanced status and power over weaker inmates.3 Regardless of the cause, the violence is present.
Prisoner-on-prisoner rape also is a widespread form of prison violence.4 One prison analyst noted that “of the forty-six million Americans ... who will be arrested at some time in their lives, ten million will be raped while in prison.”5 Justice Blackmun observed in U.S. v. Bailey that:
A youthful inmate can expect to be subjected to homosexual gang rape his first night in jail, or, it has been said, even in the van on the way to jail. Weaker inmates become the property of stronger prisoners or gangs, who sell the sexual services of the victim. Prison officials either are disinterested in stopping abuse of prisoners by other prisoners or are incapable of doing so, given the limited resources society allocates to the prison system. Prison officials often are merely indifferent to serious health and safety needs of prisoners as well.6
A recent review of the empirical research on the topic indicates that male rape in prison is still a systemic problem.7 Studies reach different conclusions about the level of sexual abuse and rape in male prisons, but they uniformly find that the rate of sexual abuse is far more than is reported by prison officials.8 Conservative estimates suggest that more than one in 10 inmates is subject to sexual abuse, and this figure fails to recognize those inmates too ashamed or fearful to report their abuse.9
Victims of prison rape typically experience severe physical and psychological injury. Some are killed during the assault and others may subsequently commit suicide. Survivors experience the feelings of shame typical in rape victims, as well as shattered self-esteem and a lost sense of manhood.10
Prison rape carries with it the danger of AIDS, a potentially fatal disease transmitted easily via forceful anal intercourse.11 It is unclear how many prison rape victims have been infected with AIDS or other sexually transmitted diseases. The rate of HIV/AIDS infection among prison inmates is between five and 12 times the rate of infection in the general population.12
The exact language of Washington RPC 1.6 is that “reasonably certain death or substantial bodily harm” creates the duty to disclose. This guidance puts substantial faith into the attorney’s hands to determine whether he or she believes that a prison sentence comes with violence and whether it is necessary for the attorney to disclose information to attempt to free an innocent, incarcerated individual.
Preventing Harm Absent Testimony
The example most often associated with RPC 1.6 is the attorney who knows his client will pour toxic waste into a body of water that is associated with a city’s water supply. An attorney in this scenario has an easy means to “prevent” the harm — call the police. In the scenario involving the possible, or previous, conviction of an innocent individual, the means of “preventing” through disclosure are substantially less clear.
Even if RPC 1.6 allows disclosure of a client confidence, under RCW § 5.60.060 the attorney cannot testify in a court regarding this confidence. Prior to conviction, a disclosure can be made to a prosecutor and the attorney can rely on the prosecutor’s own ethical code to stop conviction. After conviction, an attorney may contact the individual incarcerated or the individual’s counsel to provide the information as a means to assist in any ongoing attempts to discover new information that can be used in the incarcerated individual’s personal restraint petition.
These options lack the certainty of the toxic waste scenario. There is no certainty that these disclosures will prevent the substantial bodily harm.
Must It Be Disclosed?
If an attorney believes incarceration to be a substantial bodily harm, and if that attorney believes his disclosure would prevent that harm, then a plain reading of RPC 1.6 requires disclosure.
Is this what was intended when RPC 1.6 was drafted? If attorneys have a heightened responsibility for the quality of justice, and if life and physical integrity are valued so highly as to override the fundamental confidentiality in the attorney-client relationship, this result is the right result.
Jamila Johnson is a civil litigator with the regional law firm Schwabe, Williamson & Wyatt and may be contacted at jajohnson@schwabe.com. Peter Moreno is an instructor with the Wisconsin Innocence Project Legal Clinic. He may be reached at psmoreno@wisc.edu.
1 Anders Kaye, “Dangerous Places: The Right To Self-Defense In Prison and Prison Conditions Jurisprudence,” 63 U. of Chi. L. Rev. 693, 695–96 (1996) (citing James E. Robertson, “The Constitution in Protective Custody: An Analysis of the Rights of Protective Custody Inmates,” 56 U. Cin. L. Rev. 91, 93–94 (1987)).
2 See Michael Mushlin, 1 Rights of Prisoners § 2:7 (3d ed. 2007) (citing Laura M. Maruschak and Allen J. Beck, “Medical Problems of Inmates, 1997” (Bureau of Justice Statistics Special Report, January 2001)).
3 Id.
4 Robertson, supra, note 1, at 93–94.
5 Kaye, supra, note 1, at 698 (citing Carl Weiss and David James Friar, Terror in the Prisons (Bobbs-Merrill 1974)).
6 444 U.S. 394, 421 (1980) (Blackmun, J., dissenting) (citations omitted).
7 See Joanne Mariner, No Escape: Male Rape in the U.S. Prisons (Human Rights Watch 2001).
8 Id.
9 See Mushlin, supra note 2.
10 David M. Siegal, Note, “Rape in Prison and AIDS: A Challenge for the Eighth Amendment Framework of Wilson v. Seiter,” 44 Stan. L. Rev. 1541, 1545 (1992).
11 See Mushlin, supra, note 2.
12 The Osborne Association, www.osborneny.org/health_services.htm (last visited March 15, 2008); Laura M. Maruschak, “AIDS and HIV in Prisons and Jails, 1999” (Bureau of Justice Statistics Special Report, July 2001).
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