by Douglas Ankney

The Supreme Judicial Court of Massachusetts held that an actual conflict of interest existed that rendered counsel’s representation constitutionally ineffective where defense counsel erroneously believed he had an ethical duty to disclose to the prosecution the location of key incriminating evidence. Defendant Will Tate’s consent to the disclosure of the evidence was invalid because Tate’s attorney presented him with no alternative other than disclosure, and thus, Tate’s consent was neither informed nor voluntary. The Court announced guidance for other defense counsel to follow when faced with a similar situation in the future.

Tate was arrested for his role in the shooting death of David Rodriguez and arraigned on three felonies, including murder and two offenses related to carrying a firearm without a license. At trial, the jury heard evidence from a state police trooper that, while executing a search warrant at the home of Tate’s mother in Rhode Island, officers recovered a semiautomatic handgun. The bullets removed from Rodriguez’s body were tested and determined to have been fired from this handgun. The jury convicted Tate of second-degree murder and of both firearms offenses. Tate appealed.

Tate’s newly appointed appellate counsel moved for a new trial, arguing that his trial counsel was ineffective because he had disclosed to the Commonwealth that a locked box containing the gun used to shoot the victim was in the basement of the home of Tate’s mother. Police subsequently obtained a search warrant and recovered the locked box, and they obtained an additional warrant to search the locked box.

At a hearing on the motion, the trial judge found that six months after the shooting, Tate’s mother discovered Tate’s jacket that he had worn during the shooting and a locked box in her basement containing a handgun. She informed Tate’s trial attorney of her discovery.

Trial counsel advised Tate’s mother not to remove the gun from the box and to obtain her own private counsel. He also concluded that he had an ethical obligation to disclose to the prosecution the information he had learned from Tate’s mother. He subsequently wrote Tate a letter that stated, in pertinent part:

“Please be advised that the firearm and jacket that you were wearing were recently discovered....”

“I am mindful that you told the police that you threw the weapon over the Braca 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. I am writing this for the protection of many people although I am aware that this untruth will not help your case....”

“It is my intent to see that the authorities both here and in Rhode Island ... recover the weapon and coat independently. Said another way, I do not want anyone other than the authorities touching the weapon or the coat.”

Tate’s trial counsel brought the above letter with him when he met with Tate at the house of correction. The trial court found that during this meeting, trial counsel discussed “what his ethical obligations were, the impact of the discovery on the case and his determination that the items would have to be turned over to the authorities.” Following this discussion, Tate signed his name beneath a statement at the bottom of the letter that read:

“I ... have received a copy of the above correspondence/advice from [my attorney] and I am in agreement with this position.”

After this meeting with Tate, trial counsel notified the lead prosecutor about the mother’s discovery, resulting in the issuance of the search warrant and seizure of the jacket and firearm. The trial court denied the motion for new trial, and Tate’s appeal of that denial was consolidated with his direct appeal.

The Court observed “[t]wo ethical duties are entwined in any attorney-client relationship. First is the attorney’s duty of confidentiality, which fosters full and open communication between client and counsel, based on the client’s understanding that the attorney is statutorily obligated ... to maintain the client’s confidences.... The second is the attorney’s duty of undivided loyalty to the client.... These ethical duties are mandated by the ... Rules of Professional Conduct.” City and County of San Francisco v. Cobra Solutions, Inc., 135 P.3d 20 (Cal. 2006).

The Court stated that defendants must be able to seek the advice and guidance of their counsel and must be able to rely on the undivided loyalty of their attorney to present the defense case with full force and zealousness. Commonwealth v. Perkins, 883 N.E.2d 230 (Mass. 2008). Additionally, the duty of confidentiality is integral to the duty of loyalty that a lawyer owes a client: “The constitutional guarantee to effective assistance of counsel, untroubled by conflicts of interest, is intended not only to prevent problems that can spring from contemporaneous divided loyalties, but also to prevent prejudice to a defendant arising from an attorney’s treatment of privileged information.” Commonwealth v. Martinez, 681 N.E.2d 818 (1997); see Damron v. Herzog, 67 F.3d 211 (9th Cir. 1996). “A conflict of interest arises whenever an attorney’s regard for one duty, such as that owed to a third party or in service of his [or her] own interests, leads the attorney to disregard another duty, such as that owed to his [or her] client.” Perkins. If a defendant establishes an actual conflict of interest, he is entitled to a new trial without a further showing of prejudice. Commonwealth v. Mosher, 920 N.E.2d 285 (Mass. 2010).

The Court explained that the duty of confidentiality prohibits a lawyer from revealing “information gained during or relating to the representation of a client, whatever its source, that is ... likely to be embarrassing or detrimental to the client if disclosed.” Mass. R. Prof. C. 1.6 comment 3A. A lawyer may reveal such confidential information only if he receives the client’s “informed consent.” See McClure v. Belleque, 540 U.S. 1051 (2003). “Informed consent,” for these purposes, is defined as an “agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Mass. R. Prof. C. 1.0. If an attorney discloses confidential information without obtaining the client’s informed consent beforehand — and no exception permitting disclosure is applicable — the attorney has breached the duty of confidentiality. McClure.

The Court approvingly cited to the Iowa Supreme Court, which declared: “[A] defense lawyer has no legal obligation to disclose information about the location of an instrument of a crime when possession of the instrument is not taken.” Wemark v. State, 602 N.W.2d 810 (Iowa 1999). Even though Mass. R. Prof. C. 3.4 provides that a lawyer may not “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value,” this rule is inapplicable where a lawyer simply has knowledge of the location of possibly incriminating evidence about which the lawyer remains silent, the Court explained. Matter of a Grand Jury Investigation, 22 N.E.3d 927 (Mass. 2015).

Turning to the present case, the Court determined that trial counsel was acting under an actual conflict of interest with divided loyalties as evidenced by the letter he wrote to Tate, i.e., counsel wrote: “I am writing this for the protection of many people although I am aware that this untruth will not help your case.” Trial counsel placed the interests and protection of “many people” (presumably counsel’s self-interests and that of Tate’s mother) ahead of Tate’s interests in the criminal proceeding, the Court stated. It is irrelevant that trial counsel, albeit erroneously, believed he would be violating his ethical duties and would be subject to discipline if he did not disclose the evidence to the Commonwealth for purposes of determining whether counsel had an actual conflict of interest, according to the Court.

The Court concluded that trial counsel also breached his duty of confidentiality. While counsel did obtain Tate’s consent, it was not “informed consent.” Counsel did not discuss any “reasonable alternatives” to disclosure (such as the possible consequences of nondisclosure and remaining silent). Counsel simply informed Tate that counsel was disclosing the evidence to the Commonwealth and that does not satisfy the requirements of informed consent. Thus, the Court concluded that Tate was deprived of his right to effective assistance of counsel.

The Court provided the following guidance: “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.”

Accordingly, the Court vacated and set aside the order denying Tate’s motion for a new trial and remanded the matter to the superior court for a new trial. See: Commonwealth v. Tate, 192 N.E.3d 1034 (Mass. 2022). 

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