Are Attorneys Released From Attorney-Client Privilege Once the Client Dies?

Radley Balko | January 9, 2008

The answer in North Carolina is apparently yes—but only if it helps prosecutors.

In a bizarre case, former state supreme court justice I. Beverly Lake Jr., now in private practice, is representing a convicted double murderer named Lee Wayne Hunt. Hunt was convicted in part due to lead-bullet analysis, a discredited forensics technique long used by the FBI. The FBI now admits the technique is flawed, though the agency says it's under no obligation to do anything about the people convicted because of it.

The other evidence against Hunt, an admitted marijuana dealer, was testimony from two fellow dealers. After one of those dealers, Jerry Cashwell, committed suicide in prison, his lawyer came forward to say that prior to his death, Cashwell told him he alone committed the two murders for which Hunt has been convicted.

Upon learning that Hunt had been convicted on faulty forensic evidence and on the word of a convict who subsequently made a deathbed confession exonerating Hunt, the court immediately granted Hunt a new trial, right?

Nope. The court not only denied Hunt a new trial, it referred Cashwell's lawyer to the state bar for an ethics investigation into a possible breech of attorney-client privilege.

That's odd, because in 2006, the North Carolina Supreme Court ruled that prosecutors can force an attorney to divulge information that might help their case if the client who supplied the information has died. Hunt's lawer, former Chief Justice Lake, wrote that opinion.

"It makes no sense that a lawyer can be required to divulge information from a dead client to the state but then not be allowed to do the same if it helps a defendant," Lake told the Washington Post.

No, it doesn't. But it's not terribly surprising, either.

Comments

|1.9.08 @ 12:57PM|#

As a corporate attorney, my natural question is whether this applies to corporations that go out of business. Granted, assets and rights may be taken over by other acquiring corporations, but heirs inherit rights and assets, too.

|1.9.08 @ 1:19PM|#

The purpose of confidentiality rules is to encourage frankness and truthfulness between attorney and client. Having a rule that requires or allows attorneys to break that confidentiality after death defeats that purpose. It's too bad that it would have lead to justice in this particular case. We think.

|1.9.08 @ 1:25PM|#

For far too many in the criminal justice system, it's not about justice. It's about the scoreboard. They'll do a Belichick. Anything to win.

|1.9.08 @ 1:28PM|#

The other evidence against Hunt...

He's a man of Dixie with the middle name Wayne.

Case closed.

|1.9.08 @ 1:38PM|#

de stijl -

That was rather bizarre. Kudos.

|1.9.08 @ 1:42PM|#

One thing's for sure. Jack McCoy would never take advantage of such a double standard.

|1.9.08 @ 2:07PM|#

It makes no sense that a lawyer can be required to divulge information from a dead client to the state but then not be allowed to do the same if it helps a defendant

The Ministry of Truth will let you know what makes sense, and what doesn't.

R C Dean|1.9.08 @ 2:09PM|#

The purpose of confidentiality rules is to encourage frankness and truthfulness between attorney and client. Having a rule that requires or allows attorneys to break that confidentiality after death defeats that purpose.

I doubt the prospect of your attorney talking about your affairs after you die is much of a deterrent to anyone, frankly.

The whole notion of privacy rights after death is kind of bizarre, if you ask me.

|1.9.08 @ 2:19PM|#

"I doubt the prospect of your attorney talking about your affairs after you die is much of a deterrent to anyone, frankly."

If you believe in heaven or the afterlife, then you'd want your attorney to keep his trap shut. Or if you are extremely vain and care about your legacy you'd want him to shut up. (I'm assuming that these two sentences mean different things.)

|1.9.08 @ 2:36PM|#

If you believe in heaven or the afterlife, then you'd want your attorney to keep his trap shut.

Hate to nitpick, but I'm guessing most believers in heaven or the afterlife also believe in a deity that's able to get around attorney-client confidentiality.

|1.9.08 @ 5:15PM|#

a deity that's able to get around attorney-client confidentiality.

Talk about "holding your feet to the fire."

|1.9.08 @ 5:22PM|#

Hate to nitpick, but I'm guessing most believers in heaven or the afterlife also believe in a deity that's able to get around attorney-client confidentiality.

Are you kidding me?

You'd be surprised at the backlog of condemned souls getting new trials because of DNA evidence.

|1.9.08 @ 6:51PM|#

I guess the principle here is that a lawyer can only violate attorney-client privilege if ordered by a court.

Now, how do we get courts to issue orders directing lawyers to divulge information like this? How would anyone even know they have the information?

Gray Ghost|1.9.08 @ 6:53PM|#

"I doubt the prospect of your attorney talking about your affairs after you die is much of a deterrent to anyone, frankly."

"If you believe in heaven or the afterlife, then you'd want your attorney to keep his trap shut. Or if you are extremely vain and care about your legacy you'd want him to shut up. (I'm assuming that these two sentences mean different things.)"

What if you want to protect your estate for your heirs, or you feel that your attorney/client communications, if discoverable, might somehow criminally implicate your loved ones? I'm with Lamar; as a general rule, attorneys shouldn't get to break confidentiality.

I'm not sure how much weight to give the dead man's statement anyway. Depending on the timing of his suicide, he could have a good motive for lying. And it's not like he can be cross-examined now...