British Post Office Scandal: "most widespread miscarriage of justice in UK history" raises US legal ethics concerns

From 2000-2014, the British Post Office prosecuted 736 sub-postmasters based on a flawed computer system called Horizon. Many were fined or went to prison for false accounting/theft. Finally, after two decades some are having their cases reconsidered.

Richard Moorhead, Professor of Law and Professional Ethics, University of Exeter, in an oral submission to the hearing noted:

"If I can end by putting the case metaphorically for a moment. Considering the Horizon saga without considering the lawyering, and without lifting professional privilege [the attorney-client privilege in the US], would be a bit like considering Watergate without considering the White House Tapes. Essential, telling perhaps vital information will be missing. The abuse of power, the injustice, who did it and why will not be properly understood. Sir, you must, to discharge the Inquiry’s remit, you must do the equivalent of listening to the tapes."

While continued hearings are scheduled for September 2022 and it will likely take years to attempt untangle this mess, the Post Office scandal highlights criminal justice problems in the UK, US and beyond.

Looking at the scandal from the US legal ethics perspective, Rule 3.8 provides affirmative duties to criminal prosecutors. Rule 3.8(g) and (h) specifically require a prosecutor that knows of new evidence exonerating a convicted defendant to seek to remedy the conviction.

Rule 1.6 (confidentiality) does not really provide for a waiver of the attorney-client privilege without consent or a court order, except potentially "(1) to prevent reasonably certain death or substantial bodily harm" or "(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another..."

Just like our professional cousins across the pond, it is very likely the US legal profession would have trouble ethically resolving such a disaster.

It is hard to imagine something of this scope and scale happening in the US but it is equally difficult to conceive of how our justice systems would attempt to respond to it (probably poorly). As always, now is the time to plan for the problem - before we experience a similar "most widespread miscarriage of justice in [US] history."

Thank you to Nick Gould for bringing this issue to my attention!