For the first time, the state’s high court on Monday explicitly instructed lawyers to remain silent if they learn about incriminating evidence against their client unless they have physical possession of it and are not trying to hide it from law enforcement.
In a ruling on a second-degree murder conviction, the Supreme Judicial Court unanimously held that the paramount ethical obligation for lawyers is to defend their client against criminal charges and that sometimes “saying nothing” about potentially incriminating evidence is mandatory.
“A decision to protect a client’s confidential information by saying nothing does not represent interference with the Commonwealth’s pursuit of its case,’' Justice Serge Georges Jr. wrote.
“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,” he added.
The instructions to lawyers was issued in the case of Will Tate, who was convicted in Bristol Superior Court for the Jan 4, 2014, shooting death of David Rodriguez in Fall River.
According to court records, Tate wanted to date the victim’s sister, something Rodriguez opposed. The two men had a confrontation in the building where Rodriguez lived, and as Tate was driving away, Rodriguez rushed outside, mistakenly believing his sister was in Tate’s car. He was holding a black cellphone in one hand and Tate fired twice, fatally injuring Rodriguez, according to court records.
Tate, who was living with his mother in East Providence, was arrested while driving to the Fall River police station where he planned to surrender to authorities, according to court records.
“Oh my God,” Tate said to police after being taken into custody. “I’m going to jail for murder ... Stupid. Stupid. Stupid,’’ according to court records. “I should’ve stayed home.”
Jack M. Atwood, a defense lawyer with 48 years of experience, was told by Tate’s mother that she had found what was later confirmed to be the murder weapon and the jacket her son was wearing at the time of the shooting in the basement of her Rhode Island home, according to the ruling.
Atwood told Tate’s mother not to touch the items. He met with Tate, where he outlined what his mother had disclosed and told his client he believed he had an ethical obligation to alert Bristol District Attorney Thomas M. Quinn III’s office about it, the SJC said.
“Please be advised that the firearm and jacket that you were wearing were recently discovered. I believe that it is my ethical obligation to make this fact known to the Commonwealth of Massachusetts,” Atwood wrote, according to the SJC. “I am mindful that you told the police that you threw the weapon over the Braga Bridge as you left the scene, but notwithstanding this untruth I cannot advise you or anyone else to continue to hide this from the authorities.”
Tate signed a statement that said Atwood had told him about his plans and that he agreed with his decision to tell law enforcement where they could find the gun and jacket, the SJC said.
Alerted by Atwood, police obtained a search warrant and recovered the two items, helping to undercut the defense’s contention that Tate fired in self-defense, the SJC said.
Atwood was earnest but mistaken to notify prosecutors, Georges wrote.
“The duty of confidentiality necessarily extends to information regarding the location of incriminating objects, as such information would be ‘detrimental to the client if disclosed,’ “ Georges wrote. Atwood’s “belief that he was obligated to disclose the information to the prosecution was inaccurate, as he did not take possession of the evidence, alter it, or hide it.”
The SJC ordered a new trial for Tate on the grounds of ineffective assistance of counsel caused by a conflict of interest between what Atwood perceived as his ethical duties as an attorney and what was best for his client.
Once he learned about the evidence, Atwood should have withdrawn from the case, the court said.
Instead, Atwood “was single-mindedly focused on obtaining the defendant’s consent to disclosure, and did not present or meaningfully explore potential courses of conduct other than disclosure or, more importantly, allow the defendant to consider other courses of conduct,” George wrote.
Matthew H. Feinberg,a Boston defense lawyer who represented Tate on his appeal, applauded the ruling by emphasizing that Atwood’s conflict was not unusual.
“It happens a lot, it absolutely happens a lot,” said Feinberg, who applauded the SJC for addressing the issue. “To my knowledge, there has been no other SJC opinion that dealt with it directly.”
Feinberg said the SJC has now detailed how defense lawyers should act. “The opinion clearly lays out what the obligation of the defense lawyers under these circumstances,’' he said. “It’s the obligation to the client that prevails.”
Quinn’s office couldn’t immediately be reached for comment.