How Attorney-Client Privilege Can Go Horribly Wrong

Nov 23, 2017

Attorney-client privilege was designed to protect open communication between an attorney and his or her client. What the accused says is confidential, but what happens when that privilege sends an innocent man to life in prison?

On this week’s episode of 90.5 WESA’s Criminal Injustice podcast, University of Pittsburgh law professor and host David Harris talks to journalist and author Berl Falbaum about his new book, “Justice Failed: How 'Legal Ethics' Kept Me in Prison for 26 Years.”

Falbaum’s work describes the complicated case of Alton Logan, who spent more than two decades behind bars for a murder in Chicago that he -- and a handful of attorneys -- knew he didn't commit.

Their conversation has been edited for length and clarity. 

DAVID HARRIS: Why do we have such black-and-white protection for client confidentiality? What's that about?

BERL FALBAUM: Well the idea is to give protection to the client, so that the client can speak honestly and forthrightly to the attorney, which needs all the information possible to represent that case.

HARRIS: In the case of Alton Logan, he'd been charged with murder when another man told his attorneys that he was the real killer. That man, Andrew Wilson, his legal team was bound by attorney-client confidentiality, or privilege. They couldn't speak up for more than two decades. It was after Wilson died in prison for committing two other crimes. What if the lawyers had just come forward broken the rule and talked?

FALBAUM: Presumably they would have been disbarred. But my view is that we need to institute some procedures which protect the client, obviously, but not at the expense of an innocent man staying in prison for 26 years.

HARRIS: If they'd broken the privilege, would that necessarily have gotten Alton Logan out of prison?

FALBAUM: If the court accepted it. It's possible the court wouldn't accept it, because we're violating the ethics code. But if the court accepted it, yes, he would have gotten out of prison.

HARRIS: But you don't think it's likely, necessarily?

FALBAUM: Well the system could have rubber stamped what happened to Alton Logan and not accepted the evidence, but there is sometimes a glimmer of hope.

HARRIS: And this man, Alton Logan, maintained his innocence throughout court proceedings, years of appeals and at every point in the process. You helped him write his story. What does he have to say about it now?

FALBAUM: Well, obviously delighted he finally got out and back to his family. Interestingly enough, he did not fault the attorneys, recognizing the bind they were in, although he maintains the rule needs to be changed. But he's a very unusual man. He's not bitter, he's not angry. He only showed anger once in the two years I worked with him, when I mentioned the name of the lead prosecutor. And other than that he's comfortable with himself and with what happened, he's a very, very unusual person. 

HARRIS: In Alton Logan's case, the attorneys were roundly condemned by almost everyone, but they and a lot of ethics lawyers said that they had no choice. Is there some way out of this? Is there an exception for innocence cases?

FALBAUM: I think we should create the exceptions. Yes, they were applauded by the legal community and condemned by lay people, but my view is there are mechanisms -- and we recommend them in the last chapter of the book -- that can be instituted to protect the client's interests while getting innocent people out of prison. In my view, no question about it -- it can be done, and more importantly, it should be done.

Criminal Injustice is a weekly podcast by 90.5 WESA. You can hear David Harris’ full conversation with author and journalist Berl Falbaum on this week’s episode of the Criminal Injustice podcast. Subscribe on Apple Podcasts or through your favorite podcast app.