McClure was convicted of
multiple homicide. He claimed ineffective assistance of counsel, alleging that his defense attorney (Mecca)
improperly disclosed the locations of some of the bodies that led to
McClure's conviction.
After McClure told Mecca
where to find the children, he placed an anonymous phone call with the
police and let them know where to look.
Mecca argued that he had a
duty to prevent future crimes. McClure's statements to Thompson, while
made under attorney-client privilege,
led Mecca to believe that the children may have still been alive, and
therefore he was required to break attorney-client privilege to attempt a rescue.
Mecca was pretty crazy and
some of his ramblings could have been taken to be a consent to release
the information about the children's whereabouts.
The duty of confidentiality
if covered in Rule 1.6.
The Right to Counsel is part
of the 6th Amendment.
The Trial Court found for
Mecca. McClure appealed.
The Trial Court found that
Mecca acted appropriately.
Thompson told McClure that
if the children were still alive, he had an obligation to inform the
authorities. McClure did not say they were definitively dead.
That constituted consent as
far as the Trial Court was concerned.
The Federal Appellate Court
affirmed.
The Appellate Court agreed
with the Trial Court's ruling that Mecca's disclosure was necessary to
prevent further criminal acts.
There was some debate as to
whether Mecca really believed that the children were alive, but the Appellate
Court deferred to the Trial Court's decision as the finder of fact.
If Mecca thought that the
children were dead, he would not have been acting to prevent future
crimes and disclosure would not have been permitted.
The Appellate Court rejected
McClure's argument that there was a conflict of interest because Mecca
was more concerned for the children than his client's interests.
The Appellate Court found
that McClure did not give consent for disclosure. Consent can only be
given if it is informed consent.
Mecca did not consult with McClure about the ramifications of disclosure
so even if McClure said that it was ok to disclose he did not consent
because he wasn't informed about how that would effect his case.
The onus is on the attorney
to inform, not on the client to ask.
Rule 1.6 permits disclosure of confidential information
if the client gives consent, or if disclosure is necessary to permit future
criminal acts that are likely to result in death or substantial bodily
harm.
If Mecca believed that the
children were already dead, then there was no future crime to prevent.
But if Mecca reasonably believed
that the children were alive, disclosure would be permitted.
One could argue that this
was not a prevention of future
criminal acts because McClure had already committed the acts. If the
children had been alive, Mecca would have been acting so as to prevent a
past criminal act from
being transformed by the passage of time into a more serious criminal
offense. That's a bit of a stretch, but the Appellate Court felt it was
covered.
In a dissent it was argued
that based on the evidence there was no way a reasonable attorney would
have concluded that the children might still be alive. The dissent argued
that the reasonably believed
requirement of Rule 1.6 should be based on what a reasonable
attorney would do, not on Mecca's statements.
