Following professional rules — and a moral compass

By Maria Kantzavelos

By the very nature of their practice, criminal defense attorneys can come to harbor plenty of secrets.

Some of those secrets can be horrifying, like a client’s detailed account of a gruesome murder. Others are plainly sad, like the revelation that the young daughter of a client had been sexually abused. Many of them are mundane, simply bits of information about a client, like his drug or alcohol use, or his broken family situation.

“We have billions of secrets,” said William P. Murphy, a criminal defense attorney for 40 years. “I’ve probably heard so many of them, I forget them.”

But there can be the sort of secret too difficult to forget, one that could put a lawyer in a vexing position.

It’s one of the age-old problems that law professors who teach ethics include in their classes: What happens if you, as an individual, think something should be done, but the rules of the profession would keep you bound to silence?

Take the 26-year-old secret revealed recently in a Cook County courtroom with the testimony of veteran criminal defense attorneys Dale Coventry and Jamie Kunz, whose story was reported in a Jan. 19 Chicago Tribune article.

The retired assistant Cook County public defenders said they were bound by attorney-client privilege to hold onto their client’s admission that he was the man who fatally shot a security guard during a Jan. 11, 1982, robbery at a McDonald’s restaurant on the South Side, not another man, Alton Logan, who is still serving a life sentence for the crime.

Coventry and Kunz were representing Andrew Wilson on capital charges in the Feb. 9, 1982, murders of two Chicago police officers. The lawyers said Wilson gave permission for them to reveal his admission in the McDonald’s case only after his death. Wilson, who was sentenced to life in prison for the police murders, died last November.

That is why, the lawyers said, they could reveal the secret, which they recorded in a notarized affidavit, sealed in an envelope and kept locked in a metal box for a quarter of a century while Logan, now 54, remained in prison for a crime they believed their client committed.

“It’s a classic, legal ethics book hypothetical, and here it is in real life,” said Steven Lubet, a legal ethics expert and the director of the program on advocacy and professionalism at Northwestern University School of Law. “Lawyers are often called upon to keep secrets they would rather not keep. This, of course, is one of the most wrenching of those circumstances.”

The lawyers’ recent testimony and the contents of the affidavit surfaced as part of Logan’s request for a new trial based on newly discovered evidence in his post-conviction petition.

In a proceeding set for March 10 before Criminal Court Judge James M. Schreier, Assistant Cook County public defender Harold Winston, who is representing Logan, said he will file a memorandum of law giving reasons why the 1982 affidavit and the lawyers’ testimony about it should be admissible as evidence.

Moral imperatives

The story involving the retired public defenders raises the general ethics issue of how lawyers can find themselves in a quandary, forced to reconcile competing personal and professional principles.

“You have two moral imperatives here,” said John E. Corkery, dean of The John Marshall Law School and a former chairman of the Illinois State Bar Association’s Standing Committee on Professional Conduct. “One is to maintain confidentiality, which you and the law told this person you would give them. The other is: Something bad will happen — an innocent person will go to jail.

“There’s no standard answer for all these conflicts,” Corkery said. “The answer is, you’re going to have to pick one side or the other. And one side is probably going to nag at you for a long time.”

Kunz said he viewed his professional obligation as a moral obligation.

“I can’t extricate my legal obligations — my professional obligations — from my morals,” Kunz said recently.

“Andrew Wilson was my client. How could I possibly do anything with the information without somehow jeopardizing Andrew Wilson’s life?” Kunz said.”It wasn’t comfortable, but it wasn’t ambiguous. There was no question where my moral loyalty had to lie. His life was in my hands.”

Keeping such a secret, Kunz said, “certainly hasn’t been easy, but it’s nothing like what life has been like for Alton Logan in the last 26 years.”

“As a human being I’m disturbed by the prospect of an innocent person in jail, the way any other citizen is,” Kunz said. “But as an attorney,” he said, his loyalty is “clear and exclusive.”

“It’s to my client,” he said. “It’s not a question of protecting my license, it’s a question of protecting my client.”

Still, Coventry and Kunz said they would have come forward if Logan, who was facing capital charges, had been sentenced to death.

“We were going to do something,” Coventry said. “We had a way to get to Governor [James R.] Thompson. We were going to do that. Whether it would’ve made an impact we don’t know. We would’ve done something to try to prevent the death penalty.”

And if there wasn’t the possibility that their own client would face the death penalty, “I would’ve been able to talk him into revealing this information himself,” Coventry said. “I would’ve had him come forward himself, but I wasn’t going to take the risk when he was facing the death penalty.”

The confidentiality obligation under the attorney-client privilege is far-reaching. There are a few exceptions, like the one spelled out in Rule 1.6 (b) of the Illinois Rules of Professional Conduct: “A lawyer shall reveal information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm.”

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