Following professional rules — and a moral compass

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“The question we always ask in class is, ‘Is silence an act that would result in death or serious bodily harm?’ It’s a stretch, but at least it raises the issue. It’s a question, and it makes people think,” Corkery said.

“You might also keep in mind, though, that if the oath of confidentiality can be broken in this case, and the innocent person in prison saved this time, that next time the lawyers may not get this kind of information because the client will not believe he can trust them with this kind of secret,” Corkery said. “But maybe that’s worth it if it prevents an innocent person from languishing in jail. On the other hand, you’re not going to have the privilege in the same way anymore, if there is an opt-out based on the lawyer’s conscience.”

Toughest dilemma

Many defense attorneys in Chicago said they could not imagine a more difficult situation than the one described by Coventry and Kunz.

“That’s the toughest ethical dilemma a lawyer can have,” said William J. Martin, a criminal-defense attorney who also practices in the area of professional responsibility. “It’s an awful secret to carry with you, but I don’t see where the privilege gives you any alternative.”

In his many decades of criminal defense work, Edward M. Genson said he counts himself lucky that he has never faced a similar real-life problem.

“The idea that I have information that could exonerate an innocent man and I couldn’t use it, it’d be terrible,” Genson said. “If I would run into that issue with any regularity I wouldn’t be in this business for 43 years, because I couldn’t deal with it.”

Anthony Pinelli, a former assistant Cook County public defender, put it this way: “As a normal citizen seeing that, it would be like seeing a little kid stepping into the street in front of a car [saying] ‘I’ve got to stop this.’ But the privilege stops you from doing that. Unless your client gives you the permission to do something about it, you can’t. You have to literally watch the accident happen. If you really believe in the privilege, you can’t make an exception in that circumstance.”

If faced with the same situation as the one faced by Kunz and Coventry, said criminal-defense attorney Murphy, he’d keep quiet.

“I wouldn’t feel great about it, but the only ethical and moral thing to do is follow my oath, and that’s to protect my client’s privilege,” Murphy said. “I would know that I’m bound by my oath. I just would have no choice.”

There’s also a bigger picture to consider, he said.

“If you start breaking people’s privileges, it’s going to reflect on the profession, and you’re not going to be able to deal with your clients in a truthful manner,” he said. “Your clients wouldn’t trust you, you wouldn’t be able to deal with them, and the whole legal profession would fall on its face.”

The centuries-old attorney-client privilege is the cornerstone of what the profession is all about, said Martin.

“If I can’t go to a lawyer and know that what I tell him is confidential, then why the hell do we need lawyers? If a lawyer is an agent for the police or law enforcement, that’s just a total distortion of what the adversary system is all about,” Martin said.

Longtime criminal-defense attorney Terence P. Gillespie said, sometimes “there are ways to get information out, and hopefully in a way that doesn’t compromise your client and compromise yourself.

“I don’t know whether those two fellows had a way. It’s a touchy subject, but I think it’s one where creativity comes into play,” Gillespie said. “I don’t think it’s so hard and fast that one can’t put his thought processes in ways to circumvent it. If you’ve got a rule that’s a disaster to an innocent human being, if it’s inflexible, then the rule is not serving its purpose. I’d put a lot of energy into talking to people to figure out how in the hell I can get around this.”

That’s what Kunz and Coventry did.

“I talked to friends about it — mentors, people who were wiser than I was — saying, ‘Isn’t there something we can do?”’ Kunz said. “Maybe there should be an exception, but I’m not intelligent enough to figure out what it would be. I can’t think of a way where something can be done, to relax the rules so that I could help Logan. I don’t see any way to help Logan, without hurting Wilson.”

Even if he had disclosed the secret in the heater case, Kunz said, “There’s no reason to believe the authorities would believe me.

“And if they did believe me, and believed Andrew Wilson, then I’d have to find a way to live with myself, because of what I’d done to the guy I had promised confidence. That would be harder to live with than what I’ve had to live with as it is.”

Plus, said Coventry, “it wasn’t going to have an impact anyway.”

“First of all, it’s hearsay. And our client could’ve blocked it because it was his privilege,” Coventry said. “And it wasn’t an unknown fact. This [the contention that Andrew Wilson was the shooter] had been the defense for Logan for 26 years.”

Kunz stressed that it was because of the attorney-client privilege, and their promise of confidentiality to their client, that they were even able to get the admission, and the permission to disclose the information after his death.

“What’s certainly true is that Coventry and I would never have put the question to him in the first place if it weren’t for the privilege,” Kunz said.

Many criminal defense lawyers praised the former public defenders for finding a way to remain true to their professional obligations, while taking steps they thought they could take to be able to come forward with the information at some point.

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