Following professional rules — and a moral compass

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“I don’t know if I would’ve thought that far ahead, that’s why I applaud them for at least being able to do that,” said criminal defense attorney Thomas M. Breen.

Pinelli, the former public defender, said he could only hope he would handle a similar situation in the way Coventry and Kunz did.

“They actually thought it through to one step more in creating a contingency that didn’t, in any way, threaten their client,” Pinelli said. “When they teach ethics, this is a perfect example for a case study to show people what you really need to do to honor the privilege.”

Andrea Lyon, now the director of the DePaul Center for Justice in Capital Cases, was assisting Coventry and Kunz in the case in 1982, when she was a member of the public defender’s Homicide Task Force. She said she, too, knew about Wilson’s confession and kept it secret. She was the lawyer who notarized the affidavit.

“It’s personally very uncomfortable,” Lyon said. “You have to say to yourself, ‘In order for the system to work, people have to have loyalty to their client and for that loyalty to be 100 percent. Most of the time that’s not hard; sometimes it is. The point of being someone’s advocate is that you’re their advocate even when the case is very hard, not just when it’s easy.”

Creative ways to resolution

While the facts of every case are unique, there are times when a lawyer can accomplish what she feels is important while remaining true to the rules of the profession, said Mary T. Robinson, former administrator for the Illinois Attorney Registration and Disciplinary Commission and now an ethics and professional responsibility consultant.

“I think lawyers are silent heroes all the time. They find ways to do the right thing and honor the values that are inherent in the rules — not just the rules,” Robinson said.

Lyon described one example of a real-life scenario that involved a creative approach to dealing with a secret she felt compelled to do something about.

She once represented a battered woman who had been in an abusive relationship with a man she was charged with killing, when the client confided that the man had sexually abused her young daughter.

“She would not allow me to talk to her child about it, or refer the child for help. She said the shame was enough and she didn’t want it public,” Lyon said. “Every time I’d see that young girl I’d want to cry. I could see on her face the damage done to her — all the domestic violence and being a victim — but I couldn’t talk to her about it because to talk to her about it would’ve been to reveal where I knew it from.”

But Lyon said she found a way to help the girl without breaking the attorney-client confidence. She talked to the girl about the stress of her mother being in jail, telling her she knew of some counseling services where she could get some support — just to deal with the stress of her mother’s case.

“She thought about it and eventually said she’d like the number,” Lyon said. “I sent her to a friend of mine, a therapist who deals in child abuse, who I knew would get her to talk about [the sex abuse].

“She was about 14 when this happened. By the time the case was over she was a senior in high school,” Lyon said. “She ended up going to college on a track scholarship. She ended up getting better, which was pretty great.”

Breen said he has firsthand experience in finding a way around a situation where a lawyer learns something that could set an innocent person free — but it was at a time, he stressed, when a sense of trust existed between defense attorneys and prosecutors.

“If the defense bar and the prosecution bar will communicate in the interests of justice, there are probably ways around a situation,” he said.

Breen recalled a situation he experienced about 20 years ago, when a client came to him to tell him he was certain there was an innocent man awaiting trial in the Cook County Jail on charges of attempted murder.

“He told me he knew that this man was innocent because he in fact was the shooter,” Breen said. “He had been feeling horribly guilty about the situation, but by the same token he wasn’t willing to go into court and confess. I told him, ‘I suppose I could hypothetically pose something to the prosecutor and see if he’ll take another look at the case.’ He was all in favor of that.

“Back then, I was able to have an off-the-record-type conversation with the prosecutor who I trusted and trusted me,” Breen said. “That prosecutor wanted to know who my client was. Of course, I told him I couldn’t tell him that.”

Breen said he offered a hypothetical account of what occurred the night of the shooting and the prosecutor, moved by how his hypothetical facts fit the situation, reinvestigated the case, which was ultimately dismissed.

“As far as I know, the guilty man was in my office and is on the street today, and the innocent man spent two years waiting for trial and was dismissed,” Breen said. “That might sound horrible to people, but when it came into my office the train was taking an innocent man to the penitentiary and still leaving a guilty man on the street. It’s better that the guilty go free than the innocent go to jail. So, justice was done.”

One trumps the other

Personal conflicts may well be inevitable in a profession steeped in rules.

“You have rules you have to follow, but there is a personal code that a lot of us have,” veteran defense attorney Genson said. “Every once in a while one trumps the other. You take it on a case-by-case basis, and you try to do the best you can.”

Robert Vischer is an associate professor specializing in legal ethics at University of St. Thomas School of Law in Minneapolis, Minn., where he said he is trying to expand the conversation beyond the terms of the model rules of the profession.

“In these situations, you have to start talking about moral values, and that’s not something lawyers are very good at, in part because the profession and legal education system has never encouraged them to pay attention to that dimension of legal practice,” Vischer said. “It’s easy to talk about rules that are written down in front of you that everybody can see. When you get into the area of moral values, the perception is, it’s divisive, controversial, subjective.”

In his professional responsibility classes, Vischer said he tries to get law students to not only learn the rules, but also to look into their own moral compasses to figure out for themselves what matters most.

“It can become a richer, more productive conversation when we put all the competing values on the table and talk about them explicitly,” he said. “The notion of trust and the ability to keep your word and abide by the trust your client has placed in you is a deeply moral bond you have. The question is whether that moral value trumps all competing moral values. For some lawyers it will, for some lawyers it won’t. The point is to actually talk about it, not just mindlessly, reflexively refer to the rule because it’s a rule.”

Vischer said it’s important for lawyers to know what values are at stake in any scenario, and that they are able to articulate those values.

“We all view the world through a moral lens. All of our decision-making is shaped by morals, whether we like it or not,” he said. “These are great conversations to have. The point is to grapple with what’s actually at stake here and to have that conversation, not just in the lawyer’s own mind.

“Lawyers always have options,” Vischer said. “It’s a question of whether they’re willing to suffer the consequences by sticking by what they believe is the just outcome.”

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