David Dow - The Autobiography of an Execution

Everyone loves a good story, and lawyer stories can be among the best. However, lawyers are prohibited from telling the very best ones—the ones about their real, everyday life experiences with their clients (a fact I must remind lawyers who visit my classroom of all the time). Lawyer “war stories” can be fascinating and entertaining, but without client consent, telling war stories is a violation of a lawyer’s ethical obligations. A lawyer may discuss his cases only if there is no reasonable likelihood that the listener will be able to identify the actual client or case. Even a lawyer’s “hypothetical” story is prohibited by the ethics rules if it could reasonably lead to the discovery of a client’s identity, information, or the situation involved. [24] See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. [4] (2008) (providing that “lawyer’s use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved”). Similarly, labeling a story a work of fiction does not abrogate a lawyer’s ethical obligation not to reveal client confidences.

At the outset of The Autobiography of an Execution , the author tells us that he has gone to great lengths to disguise particular identities in order to fulfill his ethical obligations. He is required to do so. His ability to provide the very best legal representation for his clients is dependent, in large part, on his clients’ having confidence that their lawyer will keep their secrets forever. Even a lawyer who believes that it would benefit society to learn about the details of one of his cases, or who believes that it would be personally therapeutic to discuss one of his cases, confronts head-on the lawyer’s obligation to keep secrets. Of course, the safest ethical choice is to remain silent. However, if the decision is to tell his story, the lawyer must be very careful not to reveal his client’s identity, information, or confidences.

Meredith J. Duncan is the George Butler Research Professor of Law at the University of Houston Law Center, where she teaches in the areas of professional responsibility, legal ethics, criminal law, sexual assault law, and torts.

DAVID R. DOW is the University Distinguished Professor at the University of Houston Law Center, and the litigation director at the Texas Defender Service, a nonprofit legal aid corporation that represents death-row inmates. As an appellate lawyer, he has represented more than one hundred death-row inmates over the past twenty years. A graduate of Rice and Yale, Dow is the editor (with Mark Dow) of Machinery of Death , and the author of Executed on a Technicality: Lethal Injustice on America’s Death Row and America’s Prophets: How Judicial Activism Makes America Great , as well as a treatise on contract law. Dow is also the author of more than one hundred professional articles and essays, and his work has appeared in many popular publications, including the New York Times , the Washington Post , the Christian Science Monitor , the Progressive , the Texas Observer , the Dallas Morning News , and the Houston Chronicle . He resides with his wife, their son, and their dog in Houston.

TWELVE was established in August 2005 with the objective of publishing no more than one book per month. We strive to publish the singular book, by authors who have a unique perspective and compelling authority. Works that explain our culture; that illuminate, inspire, provoke, and entertain. We seek to establish communities of conversation surrounding our books. Talented authors deserve attention not only from publishers, but from readers as well. To sell the book is only the beginning of our mission. To build avid audiences of readers who are enriched by these works—that is our ultimate purpose.

Copyright © 2010 by David R. Dow

All rights reserved. Except as permitted under the U.S. Copyright Act of 1976, no part of this publication may be reproduced, distributed, or transmitted in any form or by any means, or stored in a database or retrieval system, without the prior written permission of the publisher.

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First eBook Edition: February 2010

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See MODEL RULES OF PROF’L CONDUCT R. 1.6 (2008) cmt. [3] (explaining distinction between attorney-client privilege and duty of confidentiality). Throughout this piece, I will often refer to the American Bar Association’s MODEL RULES OF PROFESSIONAL CONDUCT. Although ethical standards vary from jurisdiction to jurisdiction, the MODEL RULES have been quite influential, having been adopted in large part by the majority of jurisdictions.

The attorney-client privilege is one of the oldest privileges recognized in common law. In its classic form, it provides that confidential communication between an attorney and client is protected from disclosure forever unless waived. See 8 J. WIGMORE, EVIDENCE, § 2292 (McNaughton rev. 1961). Based on this classic formulation, all modern jurisdictions recognize the attorney-client privilege. See, e.g., FED. R. EVID. 501 (providing that attorney-client privilege “shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience”); CAL. EVID. CODE § 954 (2003) (providing that “the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer”); TEX. R. EVID. 503 (providing that a “client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client”).

Commonly recognized exceptions to the attorney-client privilege are usually limited to the crime-fraud exception (when the client consults with the attorney for the purpose of committing a future crime or fraud) and the testamentary exception (where a testator’s communication with counsel in drafting a will is revealed in order to establish testamentary intent). See Swidler & Berlin v. United States , 524 U.S. 399, 409–10 (1998) (discussing these limited exceptions to the attorney-client privilege).

See MODEL RULES OF PROF’L CONDUCT R. 1.6(a) (2008) (providing that a “lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent”).

See MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. [3] (2008) (“The confidentiality rule… applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source”).

See MODEL RULES OF PROF’L CONDUCT R. 1.6(b) (2008) (setting forth exceptions to the duty of confidentiality, which include preventing reasonably certain death or substantial bodily harm or preventing client from committing a financial crime or fraud).