Why lawyers must keep silent

Sunday night, 60 Minutes aired a report on an innocent man who was in jail for 26-years while two lawyers refused to disclose evidence that he was innocent. (Read it here.) The general theory of the story was that the lawyers should have said something, but "felt they had no choice". Unfortunately, the story did not properly explain why the lawyers had no choice.

In Ontario, all lawyers are governed by the Law Society of Upper Canada's Rules of Professional Conduct. Rule 2.03(1) reads:

A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so.

If you follow this link to Rule 2, you can find an official commentary by scrolling down. The basic idea is that clients need to be able to trust their lawyers.  If a client has to worry that admitting guilt to a lawyer will result in the lawyer telling the police, then clients will withhold such evidence and lawyers will not be able to do their jobs properly.

Some might argue that would be a good thing.  Why should guilty people be protected from the truth? For one thing, you have to consider that if you change the rule, then clients will no longer tell their lawyers the truth.  As a result, the truth will still remain hidden.  The only difference would be that lawyers might go to court believing their clients to be innocent when they are not really innocent.  Some guilty people will benefit from that while others will not. Ultimately, we are unlikely to have any more "truth" in the system.

However, if you get beyond theory and consider the specifics of this case, you have to wonder why an innocent man should lose 26-years of his life for a matter of legal principle.  Our system is based on the theory that we would rather let 10 guilty people go free than jail one innocent person; we do not believe that we should let 10 guilty people go free and jail one innocent person.

At the same time, you have to wonder what value there would be to the lawyers disclosing the confession.  Perhaps their client was just boasting and did not actually do it.  Perhaps he was hoping to get a deal for telling the truth. Perhaps he was friends with the accused man and wanted to help him.  That is unlikely since the man did not allow his lawyers to disclose the confession, but if they had disclosed it 26-years ago then those sorts of theories would have been considered in weighing the evidence.  Ultimately, the lawyers would have discredited their own ability to maintain the confidence of their clients while gaining little for the innocent man.

Many people do not understand the ethical obligation of lawyers.  Our job is to represent our clients to the best of our ability and allow the court system to decide guilt and innocence. We have this obligation because our society believes that individuals have the right to defend themselves to the best of their ability. When an innocent man goes to jail because two lawyers did not disclose confidential evidence, you should not blame the lawyers.  Instead, you should look at the rules that govern the lawyers and decide whether they are justified.