Criminal Justice

Massachusetts high court tells defense counsel when to stay quiet about confidential information

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Massachusetts’ highest appellate court has instructed lawyers about when to stay quiet about evidence that could incriminate their clients.

“We emphasize that attorneys confronting similar circumstances to those counsel did here, where they know of the location of possibly incriminating information but take no action to obtain possession of or to conceal or destroy any potentially inculpatory objects, violate no ethical rule by remaining silent,” the Massachusetts Supreme Judicial Court said Monday in a decision involving Will Tate, who was convicted of second-degree murder in 2014.

The Boston Globe has coverage.

The Massachusetts Supreme Judicial Court was asked to decide whether Tate was entitled to a new trial because of ineffective assistance of counsel. According to its opinion, Tate’s defense counsel disclosed to the state confidential information about the location of key incriminating evidence before his trial.

Tate’s mother had found the jacket that Tate had been wearing on the evening of the shooting and a gun that was later determined to be the murder weapon in her basement, the opinion said. She told Tate’s defense counsel, who decided that he had an ethical obligation to disclose the information to prosecutors.

The court contended that Tate’s trial counsel did not give him any option other than disclosing the information, which meant that the trial counsel did not adequately acquire Tate’s informed consent to make the disclosure.

“Moreover, where trial counsel mistakenly believed that he had a duty to disclose the confidential, incriminating information to the commonwealth and did not obtain the defendant’s informed consent prior to making that disclosure, an actual conflict of interest existed that rendered the representation constitutionally ineffective,” the court said.

The court held that Tate’s defense counsel committed a breach of the duty of confidentiality because that duty extends to information about the location of incriminating evidence. This information, the court said, would be “detrimental to the client if disclosed.”

The Massachusetts Supreme Judicial Court also said because Tate’s trial counsel experienced a conflict of interest between what he thought were his ethical duties and his duties to Tate, he “did not demonstrate ‘undivided loyalty’ to the defendant.”

In these types of situations, if an attorney thinks that they can no longer provide “thorough and competent representation” to a client, they should withdraw from the case, the court said.

“But a decision to protect a client’s confidential information by saying nothing does not represent interference with the commonwealth’s pursuit of its case,” said the Massachusetts Supreme Judicial Court, which granted Tate’s motion for a new trial.

Matthew H. Feinberg, a Boston defense lawyer who represented Tate in the appeal, told the Boston Globe that to his knowledge, no other Massachusetts Supreme Judicial Court decision had directly dealt with the issue.

“The opinion clearly lays out what the obligation of the defense lawyers [is] under these circumstances,” Feinberg said. “It’s the obligation to the client that prevails.”

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