The Massachusetts Supreme Judicial Court (“SJC”) recently provided guidance on how attorneys can comply with their ethical obligation to share discoverable evidence with opposing counsel while zealously advocating on behalf of their clients. In Commonwealth v. Tate, the SJC held that trial counsel had no ethical obligation under the Massachusetts Rules of Professional Conduct to disclose to the prosecution information about the location of incriminating evidence that he did not possess, alter, destroy, or conceal.
A lawyer’s duty of confidentiality is embodied in Mass. R. Prof. C. 1.6, which prohibits a lawyer from revealing confidential information relating to the representation of a client except in certain, narrowly limited circumstances, including when the lawyer receives the client’s “informed consent” to the disclosure. Mass. R. Prof. C. 1.0 (f) defines informed consent as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Mass. R. Prof. C. 3.4 additionally requires that lawyers not purposefully lead opposing counsel and the court astray while advocating for their clients.
In Tate, after a deadly shooting, a jury convicted the defendant of second-degree murder, possession of a firearm without a license, and possession of a loaded firearm without a license. Prior to trial, the defendant’s mother informed defense counsel that she had found in her home the clothes the defendant had worn on the night of the shooting as well as the gun used in the crime, which the defendant told police he had thrown from a bridge. Defendant’s trial counsel then sought advice concerning the best way to handle the situation from other attorneys and the Board of Bar Overseers. Based on these conversations, counsel concluded that he had an ethical obligation to disclose information about the discovery of this evidence. Counsel subsequently wrote a letter to the defendant explaining his ethical obligation, noting that he wrote the letter “for the protection of many people,” but was aware that the “untruth” would not help the defendant’s case. He discussed the letter in person with the defendant at the house of correction. The defendant signed the bottom of the letter, and counsel proceeded to notify the Commonwealth of the defendant’s mother’s discovery.
Following his conviction of second-degree murder, the defendant filed a motion for a new trial on the ground of ineffective assistance of counsel. In his motion, the defendant argued that his trial attorney’s disclosure to the prosecution of the location of the gun he had used to shoot the victim was a breach of the attorney’s duty of confidentiality. The defendant maintained that this breach irreparably prejudiced him by exposing evidence of prior bad acts and character to the jury and essentially forcing him to testify at trial, thus waiving his right to remain silent. After an evidentiary hearing, the trial judge denied the defendant’s motion for a new trial. The judge concluded that trial counsel was not ineffective as to disclosing the confidential information because the defendant had given informed consent to the disclosure of the evidence after meeting with counsel and discussing the matter.
On appeal, the SJC held that the defendant was indeed entitled to a new trial and vacated the trial court’s denial of the defendant’s motion.
The Court acknowledged that attorneys walk a fine line when zealously advocating on behalf of their clients while also upholding their fundamental duty as officers of the court not to allow the tribunal to be misled by evidence known to be false. The court also reiterated that the duty of loyalty that a lawyer owes to a client is just as integral as the duty of confidentiality. A lawyer may reveal confidential information if the lawyer receives the client’s informed consent to the disclosure, and the failure to first obtain the client’s informed consent, absent applicable exceptions, is a breach of the attorney’s duty of confidentiality.
Although lawyers must not lead the court and opposing counsel astray while zealously advocating for their clients, in compliance of Mass. R. Prof. C. 3.4, the court in Tate held that this rule is not implicated where a lawyer simply has knowledge of the location of possibly incriminating evidence and chooses to remain silent. In Tate, the trial attorney inaccurately believed that he was obligated to disclose to the prosecution the information the defendant’s mother had shared with him. The court explained that because the trial counsel did not present the defendant with any option other than disclosing the existence of the incriminating evidence, the defendant was not given a real choice, and the defendant’s purported consent to the disclosure was neither adequately informed nor voluntary. The Court consequently determined that trial counsel breached his duty of confidentiality.
Moreover, the Court held that where counsel mistakenly believed that he had a duty to disclose confidential, incriminating information to the prosecution, and did not obtain his client’s informed consent prior to making that disclosure, an actual conflict of interest existed, rendering the representation constitutionally ineffective. Specifically, the Court recognized that clients do not receive effective assistance of counsel where their lawyer fails to demonstrate undivided loyalty. The Court explained that a conflict of interest can exist between counsel’s duty to zealously advocate for a client and counsel’s personal interest in complying with other ethical rules. Therefore, the Court concluded, trial counsel’s honest belief that it was his ethical duty to disclose the incriminating information created an actual conflict of interest between what he thought were his ethical duties and his duty towards his client.
The scenario defense counsel confronted in Tate demonstrates that conflicts of interest can have constitutional repercussions for clients. As budding lawyers are instructed in their professional ethics courses: Lawyers who find they are unable to zealously advocate for their clients due to a conflict of interest should consider withdrawing from the representation.
Dayana Donisca is an Associate at Conn Kavanaugh Rosenthal Peisch & Ford, LLP in Boston.
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