Criminal Justice

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

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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.