McClure v. Thompson
323 F.3d 1233 (2003)

  • 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.