To some lawyers, it is not clear when the duty to correct errors from old cases expires. If you prosecuted a case in 2001, and learn of new evidence in 2017 that casts doubt on the conviction, must you notify anyone? And if you represented someone convicted long ago, or a witness, and now have information of innocence, is there an obligation to tell anyone?
North Carolina has now provided an answer. On March 16, 2017, the North Carolina Supreme Court adopted Rule 8.6, “INFORMATION ABOUT A POSSIBLE WRONGFUL CONVICTION.” Apparently only the second of its kind to impose an obligation on all counsel, not just prosecutors – and not all states impose this duty on prosecutors – it follows an earlier effort by Arizona.
What is the requirement?
when a lawyer knows of credible evidence or information, including evidence or information otherwise protected by Rule 1.6, that creates a reasonable likelihood that a defendant did not commit the offense for which the defendant was convicted, the lawyer shall promptly disclose that evidence or information to the prosecutorial authority for the jurisdiction in which the defendant was convicted and to North Carolina Office of Indigent Defense Services or, if appropriate, the federal public defender for the district of conviction.
Rule 1.6 is the Rule protecting “confidential” information, i.e. information the lawyer obtained in connection with representing the client. So innocence trumps confidentiality. That, however, is not the same as “privilege.” A later section of 8.6 specifically preserves the protection of attorney-client privileged communications.
The Rule has a second exemption. A lawyer may not disclose information that would exculpate a convicted person if “disclosure would criminally implicate a current or former client or otherwise substantially prejudice a current or former client’s interests…”
So – is this meaningful given the exemptions? The answer is “yes” in two regards, The rule requires affirmative action, and specific parties who must be notified; and it uses a “reasonable likelihood” standard which urges lawyers to err on the side of disclosure. This is a small but meaningful step in the move to redress wrongful incarceration; and in symbolic value it is a recognition by a state’s Supreme Court that such errors do occur and are extremely consequential.