T H E National Association of Criminal Defense Lawyers

C HA M P IONDecember 2010

Possessing Evidence of a Client’s CrimeWhat Should a Lawyer Do?

Reprinted with permission.

Criminal defense lawyers help clients and safeguardtheir secrets. They also must follow the law. Theseobligations collide when a lawyer acquires tangible

evidence of a client’s crime, leaving counsel to walk a fineline between protecting a client and avoiding wrongdoing.Potential risks a lawyer faces include state bar proceedings,sanctions, ineffective assistance, malpractice and spolia-tion claims, and even criminal charges.

What should counsel do? The first step is to locatestate rules of professional conduct. The second step is toevaluate the type of evidence and how it was acquiredbecause this usually dictates the statutes, rules, and caselaw that could apply. Simply possessing certain types ofevidence is a crime, and an array of federal and state crim-inal statutes punish obstruction of justice, evidence tam-pering, and related offenses. Discovery rules and courtorders in pending proceedings also may apply, and vari-ous laws impose civil and evidentiary sanctions for con-cealing or destroying evidence. The third step is to followthe ethical and lawful course that best protects the client.At every step, counsel should document efforts to respon-sibly resolve the problem.

Step 1: Which Rules of Professional Conduct?

A lawyer’s ethical obligations are defined by statecodes of professional responsibility, statutes and case law.The relevant state’s code of responsibility must be consult-ed because ethics rules vary nationwide.1 Most states haveadopted some version of the ABA Model Rules ofProfessional Conduct (Model Rules), which contain sev-eral provisions implicated by possessing evidence of aclient’s crime.2

Model Rule 8.4 (Maintaining the Integrity of theProfession, Misconduct) provides that it is “professionalmisconduct” to “(b) commit a criminal act that reflectsadversely on the lawyer’s honesty, trustworthiness or fit-ness as a lawyer in other respects; (c) engage in conductinvolving dishonesty, fraud, deceit or misrepresentation;[or] (d) engage in conduct that is prejudicial to theadministration of justice. …”

Under Model Rule 3.4 (Advocate - Fairness toOpposing Party and Counsel), a lawyer may not “unlaw-fully obstruct another party’s access to evidence or unlaw-fully alter, destroy or conceal a document or other materi-al having potential evidentiary value,” nor “counsel orassist another person to do any such act.” The rule’sComment illustrates the overlap of professional and legalobligations:

Applicable law in many jurisdictions makes it anoffense to destroy material for purpose of impairingits availability in a pending proceeding or onewhose commencement can be foreseen. Falsifyingevidence is also generally a criminal offense. …Applicable law may permit a lawyer to take tempo-

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Ethics and AdvocacyDilemmas — PossessingEvidence of a Client’s Crime

Reprinted with permission.

rary possession of physical evi-dence of client crimes for the pur-pose of conducting a limited exam-ination that will not alter or destroymaterial characteristics of the evi-dence. In such a case, applicable lawmay require the lawyer to turn theevidence over to the police or otherprosecuting authority, dependingon the circumstances.

A lawyer’s duty of confidentiality isset forth in Model Rule 1.6 (Client-Lawyer Relationship, Confidentiality ofInformation).3 It provides that absentclient consent, a lawyer shall not revealinformation relating to the representa-tion of a client unless the disclosure ispermitted by the client or comes withinlimited exceptions. These include,among others, counsel’s discretionaryability to reveal confidences where thelawyer “reasonably believes” disclosure isnecessary to “prevent reasonably certaindeath or substantial bodily harm,” or toprevent or rectify “substantial injury tothe financial interests or property ofanother” with respect to which the clientused, or is using, the lawyer’s services.4

These rules may come into playwhen a lawyer acquires evidence of aclient’s crime. However, these rules do notprovide specific guidance concerninghow to handle the situation.

Step 2: What Type ofEvidence and How Did Counsel Get It?

The type of evidence that a lawyerpossesses is often critical. Most tangibleevidence of a client’s crime will fall intotwo broad categories: (1) contraband,instrumentalities or fruits of a crime; or(2) ordinary items that were not directlyinvolved in the perpetration of a crimebut implicate a client because of theircontent. Possessing the former typicallyrequires a lawyer to sua sponte take reme-dial action, but possessing the latter usu-ally does not. A third type of evidence —ordinary items directly involved in acrime — defies a categorical rule.

How a lawyer obtained the evidencealso is important. If a client provided theitem or told counsel where to find it, alawyer’s duty of confidentiality and theattorney-client privilege are implicated.When a third party provided an item, theduty of confidentiality may be relevant,but not the attorney-client privilege. If alawyer or the lawyer’s agent, such as aninvestigator, retrieved an item from itsoriginal locale, counsel may have run afoulof various laws and has become a witness

to the evidence in its original state.What if a client provides items to

counsel, but it is not certain any crimewas committed? What if it is unclearwhether the items are evidence of acrime? What if no investigation or legalproceeding appears to be underway? Suchunknowns create serious practical prob-lems and require a sensitive judgment callabout the extent of any inquiry or inves-tigation by a lawyer in possession ofitems. Ethics rules provide no specificguidance, but a prudent yardstick may bewhether or not a reasonable professionalunder the circumstances would take stepsto learn more before deciding what to dowith the items. If so, counsel should notblindly commit to any course of action.

Contraband, Fruits andInstrumentalities of a Crime

It is a crime for anyone to knowinglypossess or transfer contraband, whichincludes, for example, illegal narcotics,unregistered firearms, unlawful explo-sives, and child pornography.5 Knowinglypossessing the fruits of a crime, such asstolen money or merchandise, counterfeitgoods or phony identification cards, alsomay violate various laws.6

Instrumentalities are any type of itemdesigned or intended to be used in com-mitting a crime, or actually used to com-mit a crime. They range from sophisticat-ed software to a burglar’s tools.Knowingly possessing instrumentalitiescan be a crime, depending on the type ofitem, possessor’s intent, and relationshipbetween the evidence and a potential oractual crime. Many statutes criminalizepossession only when accompanied by anintent to use the instrumentality. But,laws widely differ.7

Statutes differ regarding knowledgeand intent, but if a lawyer’s possession ofany kind of evidence of a crime helps aclient conceal evidence from law enforce-ment, impedes law enforcement’s accessto it, or alters the quality of the evidence,offenses including obstruction of justice,evidence tampering, aiding and abetting,misprision and conspiracy could beimplicated.8 Also, if a client intends to usecounsel’s offices to hide incriminatingevidence, related communications maynot be privileged.9

From a practical perspective, pos-sessing evidence of a crime increases thechances of a law office search.10 A lawyerwho acquires contraband, fruits orinstrumentalities often will run afoul ofone or more statutes. Under such circum-stances, counsel must turn over the evi-dence to law enforcement at some point,

even if doing so could implicate a clientin wrongdoing. One court described theobligation of an attorney who receivessuch evidence as follows:

The attorney should not be adepository for criminal evidence(such as a knife, other weapons,stolen property, etc.), which in itselfhas little, if any, material value forthe purposes of aiding counsel inthe preparation of the defense of hisclient’s case. Such evidence giventhe attorney during legal consulta-tion for information purposes andused by the attorney in preparingthe defense of his client’s case,whether or not the case ever goes totrial, could clearly be withheld for areasonable period of time. It followsthat the attorney, after a reasonableperiod, should, as an officer of thecourt, on his own motion turn thesame over to the prosecution.

State ex rel. Sowers v. Olwell11

Should a lawyer give the evidenceback to the client or whoever provided it?While this would achieve the goal of dis-possession, it could aggravate counsel’sexposure because knowingly transferringcertain evidence (particularly contra-band) is a worse transgression than pos-session. It also should not be done if theclient or third party might destroy it.12

If a lawyer can return noncontra-band evidence to its source without risk-ing its destruction, impairing it or hin-dering law enforcement’s efforts to inves-tigate and prosecute, counsel may do soafter a “reasonable time for inspection.”13

Caution should be exercised, however. Ifthe evidence degraded while in counsel’spossession or is destroyed after beingreturned to its source, counsel’s judgmentcall may be criticized.

What are the possible ramificationsof destroying the evidence? Destroyingevidence is a poor choice. Knowinglydestroying any evidence of a crime mayconstitute obstruction of justice, evi-dence tampering, aiding and abetting, orconspiracy, depending on counsel’s or aclient’s intent, and the potential or actu-al existence of an investigation or a pro-ceeding. The lawyer for a Connecticutchurch learned this the hard way whenhe was indicted for destroying a laptopthat he knew contained child pornogra-phy. Church officials delivered the lap-top to the lawyer after they received itfrom a church employee. The churchemployee discovered the images afterborrowing the laptop from its owner, thechurch organist.14

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Is it a good idea to suggest that aclient destroy the evidence? This choice iseven worse. Encouraging another tobreak the law is a crime and could garneran enhanced penalty because of a lawyer’sposition of trust. Encouraging a client todestroy evidence also would violateModel Rule 1.2(d), which precludes alawyer from “counsel[ing] a client toengage … in conduct the lawyer knows iscriminal,” and Model Rule 3.4(a), whichstates that a “lawyer shall not counsel orassist another person” to obstruct anoth-er party’s evidence or unlawfully destroyor conceal evidence. Advising a client todestroy evidence could fall within thecrime-fraud exception to the attorney-client privilege or otherwise fall outsidethe scope of protected communications.15

Also, a dispute about counsel’s advicecould turn counsel into a witness, create aconflict of interest with a client, and leadto disqualification.

Destroying evidence also can lead toserious consequences in criminal andcivil proceedings. These include disquali-fication, sanctions, the admission of sec-ondary evidence of the destroyed materi-al, an order prohibiting the offendingparty from introducing certain evidence,and a jury instruction that an adverseinference may be drawn from a party’sdestruction of evidence. A client whootherwise might testify at trial could bedissuaded by the potential for cross-examination on the defense’s destructionof evidence.

Why can’t the lawyer put the evi-dence in the client’s file and wait for lawenforcement to request it? This may notsolve the problem. If an item is contra-band, or an instrumentality or fruit of acrime, the obligation to turn it over to lawenforcement is self-executing, and noprosecution motion or court order isrequired.16 Knowingly possessing contra-band is a crime, and knowingly possess-ing contraband, fruits or instrumentali-ties arguably hinders law enforcement’saccess to the evidence, thereby exposingcounsel to allegations of obstruction ofjustice or aiding and abetting a client’sefforts to conceal the evidence. Moreover,if the evidence is evanescent (blood, fin-gerprints, saliva, DNA), prolonged pos-session might alter it, thereby exposingcounsel to allegations of tampering.

Ordinary Materials WithEvidentiary Significance

It is not unusual for a client orthird party to provide counsel withordinary items that potentially incrimi-nate a client, such as correspondence,

emails or bank and phone records.What is a lawyer’s duty in this situation?Reviewing such evidence may be essen-tial to prepare a case, and effective rep-resentation may be impossible withoutat least possessing duplicates.

Unlike contraband and fruits, merepossession of ordinary evidence is not acrime requiring counsel to stop possess-ing the evidence. Unlike an instrumen-tality, ordinary evidence usually was notdirectly involved in the perpetration of acrime. In most situations, counsel is notobligated to provide law enforcementwith ordinary evidence unless a subpoe-na, court order, discovery obligation,cooperation agreement, or the like man-dates disclosure. This is consistent withour adversary system in which the prose-cution bears the burden of proof, and anaccused has no generalized obligation tohelp prosecutors build their case. It alsois consistent with an individual client’sFifth Amendment right not to discloseevidence where the act of productioncould be incriminating.17 However, if alawyer or someone acting at the lawyer’sdirection took the evidence from its orig-inal location, thereby depriving lawenforcement of an opportunity to find it,counsel may be obligated to turn it overto law enforcement.18

Even if counsel has no generalizedduty to turn over ordinary evidence thatcould implicate a client, there are risks topossessing any evidence of a crime. If theevidence is unavailable elsewhere, coun-sel’s possession of it may impede lawenforcement’s access to it, and prosecu-tors could contend that counsel knowing-ly hid the evidence from law enforcementwith intent to avoid its use in legal pro-ceedings. Furthermore, possessing evi-dence of a crime can increase the chancesof a law office search. Because of thesepotential issues, it may make sense forcounsel to keep copies of sensitive ordi-nary evidence, and return the originals totheir source. Getting information con-tained in the materials may be essential toeffectively advise a client and prepare acase, but possessing duplicates mightavoid issues implicated by counsel beingthe sole repository of the evidence.

Not Entirely Ordinary Items With EvidentiarySignificance

What is an attorney’s duty when anitem is not contraband, a fruit or aninstrumentality, but directly implicates aclient and is closely connected to a crime?A client’s bloody glove and Nixon’sWatergate tapes are examples.

In two cases considering evidencethat defied clear categorization, thecourts ruled that counsel’s obligations donot turn on the type of evidence athand.19 However, the evidence in bothcases might be classified as an instrumen-tality. Also, both cases involved evidencereceived from a third party, not the client,so applying the Fifth Amendment to theact of production, and the attorney-clientprivilege, were not implicated.20

Where a client gives counsel evi-dence directly implicating the client, theFifth Amendment supports counsel’snondisclosure because the mere act ofproducing the evidence may furnish alink in the chain of evidence used to con-vict the client.21 However, the evidenceitself is not privileged from disclosure bythe attorney-client privilege or duty ofconfidentiality, and counsel’s possessionof the evidence arguably hinders lawenforcement’s access to it. Moreover,preparing a client’s defense probably doesnot require counsel to possess the items,and any evanescent evidence coulddegrade while in counsel’s possession.

Case law considering evidence close-ly connected to a crime treats it much thesame as contraband, fruits and instru-mentalities. Courts split the baby byrequiring lawyers to surrender the evi-dence, but precluding prosecutors fromoffering evidence that the defense was thesource — at least where the defense iswilling to stipulate to authenticity.22 Asnoted by leading criminal defense ethicsauthority John Wesley Hall Jr., “This is atrade-off with a weighty policy interest.The criminal justice system needs the evi-dence, but the defendant cannot bepenalized for producing it.”23

What should a lawyer do with itemsthat were not closely connected to acrime, but nonetheless directly implicatea client? For example, an attorney mightbe in possession of a photo of a clientwearing stolen jewels, or a letter to coun-sel from a fugitive blaming a client for thecharged conduct. No case law or ethicsrules provide clear guidance for counselin possession of this type of secondaryevidence. Counsel’s possession of theitems comes within the duty of confiden-tiality, even if no privileged communica-tions were involved. The items are analyt-ically distinct from physical evidence of acrime such as knives, guns, bloody gar-ments or a victim’s property, or itemsdirectly involved in the perpetration of acrime such as book-making receipts orfalsified records. However, preparing aclient’s defense probably does not requirecounsel to possess the originals, and pos-sessing unique evidence arguably hinders

Reprinted with permission.

law enforcement’s access to it and mightincrease the chances of a law office search.Therefore, where possible, the most rea-sonable course may be to return the itemsto whoever provided them, at least whencounsel is not on notice that returningthem is likely to result in their destruc-tion.24 When feasible, it may be prudentto advise the source that it is a violation ofthe law to destroy evidence of a crime.The unique facts at hand, of course, willhave to be evaluated to chart an ethicaland lawful course that is practicableunder the circumstances.

Look, but Don’t TouchWhatever the type of incriminating

evidence, there is a big difference betweena lawyer having custody and simplyknowing about it. Once a lawyer takespossession of, moves from the originallocale, tests or otherwise meddles withevidence of a crime, information aboutits original location and condition losesany confidentiality protections.25 Counselmay be compelled to disclose the originalsitus and condition of the evidence, evenif the information came from confiden-tial client communications. The lawyeralso could be forced to testify about thechain of custody of the evidence, andrisks disqualification.

A lawyer who alters a crime scene orsecretes evidence of a crime also couldface charges of obstruction of justice oreven charges of accessory-after-the-factregarding the principal crime.26 Such con-duct may create a conflict of interest thatrenders counsel ineffective.27 Counsel alsorisks sanctions for secreting evidence.28

Two leading cases illustrate the criti-cal difference between looking andtouching when it comes to evidence of acrime. In People v. Meredith,29 a lawyer’sinvestigator retrieved a murder victim’swallet from a place described to thelawyer by his client. The item was notcontraband, an instrumentality, or afruit. Nonetheless, the lawyer wasrequired to turn it over to law enforce-ment and disclose its original locationnotwithstanding the attorney-clientprivilege and duty of confidentiality.30 Incontrast to Meredith, in People v. Belge31the court dismissed criminal chargesagainst a defense lawyer who observed,but otherwise left alone, a corpse that hisclient had described.

Step 3: What Is the Best WayTo Protect Confidentiality?

Whatever course of action is fol-lowed, counsel should protect client con-

fidences and secrets, the attorney-clientprivilege, and attorney work product, tothe greatest extent possible under appli-cable law.32

Will the prosecutor agree in advanceto provide act of production immunity tothe client regarding counsel’s delivery ofthe evidence? Even if evidence itself is notprivileged, if the act of producing the evi-dence could furnish a link in the chain ofevidence implicating an individual client,the Fifth Amendment provides a shieldagainst compelled production absent actof production immunity.33

Negotiations with a prosecutor maybe bolstered by reference to the ABACriminal Justice Standards: ProsecutionFunction. Under Standard 3-2.8(Relations With the Courts and Bar), “aprosecutor should assure defense counselthat if counsel finds it necessary to deliv-er physical items which may be relevantto a pending case or investigation to theprosecutor, the prosecutor will not offerthe fact of such delivery by defense coun-sel as evidence before a jury for purposesof establishing defense counsel’s client’sculpability.”34 Even if a prosecutor will notmake reasonable concessions in advance,a court may preclude a prosecutor frominforming jurors that incriminating evi-dence came from counsel.35

Can an attorney anonymously deliv-er incriminating evidence to law enforce-ment? The District of Columbia has aspecial rule permitting this.36 In otherjurisdictions and some situations, how-ever, anonymous delivery may not dis-charge counsel’s obligations.37 A key issuemay be whether concealing the item’schain of custody could deprive a prose-cutor of the ability to establish relevanceor authenticity for evidentiary purposes.Anonymously delivering a toxicologyreport that a client stole from the crimelab and gave to counsel probably wouldnot impair a prosecutor’s ability to intro-duce it into evidence in the client’s DUItrial. It also would achieve counsel’s goalof dispossession regarding the fruits of aclient’s crime. Another key issue iswhether anonymous delivery woulddeprive the prosecution of any evidencethe defense is obligated to produce. Ifnot, counsel may be justified in with-holding information about the source ofthe evidence.38

What should counsel do if there is asubpoena or court order directing thedisclosure of incriminating evidencethat counsel has no ethical or legal obli-gation to disclose? Consider moving toquash the subpoena or appealing aflawed order. Similarly, if incriminatingmaterials appear to come within the

scope of discovery obligations, considersubmitting specific objections or obtain-ing a protective order. Prepare a privilegelog to document the grounds on whichthe evidence is being withheld. Ofcourse, attorneys face a range of hazardsif they fail to resist disclosure in anappropriate manner.39

At Every Step: Protect Your Clients and Yourself!

No single rule applies to all situa-tions, but the following may be usefulguideposts:

1. Do not take possession of potentialcontraband, instrumentalities or fruitsof a crime, or move or otherwise med-dle with evidence involved in the per-petration of a crime, and train yoursubordinates and other agents accord-ingly;

2. Do not destroy or conceal, or advise aclient to destroy or conceal, any poten-tial evidence, and train your subordi-nates and agents accordingly;

3. Warn clients or third parties seeking togive evidence to you that if it is unethi-cal or illegal for you to possess it, youmay be required to turn it over to lawenforcement and it could be admittedinto evidence against your client;

4. Before taking action, research applica-ble ethics rules and laws and otherauthorities.40 When the results ofresearch are inconclusive, consult col-leagues or outside counsel;

5. If you possess contraband, instrumen-talities or fruits, turn them over to lawenforcement pursuant to a strategythat minimizes the revelation of clientconfidences and the adverse impact ona client;

6. If a client provides ordinary materials(i.e., items that are not contraband,instrumentalities or fruits, and werenot directly involved in the perpetra-tion of a crime) that evidence theclient’s wrongdoing, ordinarily youneed not disclose them to law enforce-ment unless required to do so by a sub-poena, court order, discovery obliga-tion or the like;

7. Consider filing a motion to quash,seeking a protective order, and appeal-ing any court order requiring the dis-closure of evidence implicating a clientwhere there is a legal basis for doing so;

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8. Where the mere act of producingnonprivileged materials on behalf ofan individual client may incriminatethe client, or provide a link in a chainof evidence implicating a client, chal-lenge disclosure of the evidence onFifth Amendment grounds and/orseek act of production immunity forthe client;

9. Avoid accusations that your officeswere used as a repository for uniqueincriminating evidence by duplicatingand returning to the provider materialsother than contraband, instrumentali-ties or fruits of a crime, unless doing sowould lead to destruction of the evi-dence; and

10. Document your efforts to legally andethically resolve problematic situa-tions in order to shield yourself andyour client from any claims of inap-propriate conduct.

ConclusionA lawyer possessing evidence of a

client’s crime is in the perplexing situa-tion of needing to comply with manylaws and rules that were adopted with-out regard to criminal defense lawyers’special duties to their clients and uniquerole in our criminal justice system.However, the challenges can be met witha familiar approach — investigation,analysis, and thoughtful application ofavailable authority to the specific factsat hand.

Notes1. See ABA Center for Professional

Responsibility, available at http://www.abanet.org/cpr/links.html#States (staterules of professional conduct).

2. See ABA Model Rules, available athttp://www.abanet.org/cpr/mrpc/mrpc_toc.html; see also FED. R. EVID. 501 (privilegesdetermined by common law in criminalcases).

3. Counsel’s ethical duty to protectclient confidences is broader than the attor-ney-client privilege or work product doc-trine. The former protects all informationrelating to representation of a client,whether or not it came from a client or wasimparted in confidence. The latter are evi-dentiary rules invoked when the disclosureof evidence is sought in legal proceedings.

4. MODEL RULES OF PROF’L CONDUCT R.1.6(b)(1)-(3). Some states diverge fromModel Rule 1.6’s discretionary disclosureand mandate attorney disclosures wherenecessary to prevent a crime or substantialbodily harm or death (see, e.g., FLORIDA RULES

OF PROF’L CONDUCT R. 4-1.6(B); WASHINGTON

RULES OF PROF’L CONDUCT R. 1.6(b)(1)), or evenwhere necessary to prevent a client’s crimeor fraud that is likely to result in substantialfinancial injury to another (see, e.g.,WISCONSIN RULES OF PROF’L CONDUCT R.20:1.6(b)).

5. See, e.g., 21 U.S.C. § 844 (possessionof controlled substance); 26 U.S.C. § 5861(unregistered firearm); 18 U.S.C. § 842(explosives); 18 U.S.C. § 2252 (childpornography).

6. See, e.g., 18 U.S.C. § 662 (receivingstolen property); CAL. PENAL CODE § 350 (pos-session of counterfeit goods); TEX. PENAL

CODE § 33A.03(a)(1) (counterfeit telecom-munications devices); WASH. CRIM. CODE

§ 9A.56.140 (stolen property).7. See, e.g., 18 U.S.C. § 1029(a)(9)

(offense to knowingly possesses “phishing”hardware or software); cf. VA. CODE § 18.2-94(possessing burglarious tools by personother than licensed dealer is prima facie evi-dence of intent to commit offense).

8. See, e.g., 18 U.S.C. § 1503(a) (crimeto corruptly obstruct due administrationof justice), 18 U.S.C. § 1512(c) (corruptlyaltering or concealing item with intent toimpair its integrity or availability for usein official proceeding), 18 U.S.C. § 1519(altering or concealing item with intentto impede investigation); CAL. PENAL CODE

§ 135 (willfully destroying or concealingitem knowing it is about to be producedinto evidence in any trial or investiga-tion); FLA. STAT. § 918.13(1)(a) (destroyingor concealing item with purpose ofimpairing its availability in criminal pro-ceeding or investigation); N.Y. PENAL LAW

§ 215.40(2) (concealing or destroying evi-dence while believing it is about to beproduced or used in official or prospec-tive proceeding).

9. See, e.g., CAL. EVID. CODE § 956 (“there isno privilege under this article if the servicesof the lawyer were sought or obtained toenable or aid anyone to commit or plan tocommit a crime”).

10. See Rubin v. State, 325 Md. 552, 602A.2d 677 (1992) (defense lawyer’s officesearched for bullets investigator took fromclient’s purse and provided to counsel;defendant had no reasonable expectationof privacy in items seized because oflawyer’s ethical duty to deliver the evidenceto police).

11. State ex rel. Sowers v. Olwell, 64Wash. 2d 828, 394 P.2d 681, 684-85 (1964)(attorney must deliver to law enforcementknife received from client although client’sact of providing knife to lawyer is privilegedcommunication); see also State v. Green, 493So. 2d 1178, 1182 (La. 1986) (no violation ofprivilege for counsel to deliver to lawenforcement gun client used in crime andgave to lawyer).

12. See Hitch v. Pima County SuperiorCourt, 146 Ariz. 588, 708 P.2d 72, 78 (1985)(proper for lawyer to give prosecutor vic-tim’s watch provided by third party if lawyerreasonably believes evidence would bedestroyed if returned to third party).

13. Commonwealth v. Stenhach, 365 Pa.Super. 5, 23-24, 514 A.2d 114, 123 (1986)(returning evidence permissible where itcan be done “without hindering the appre-hension, prosecution, conviction or punish-ment of another and without altering,destroying or concealing it or impairing itsverity or availability in any pending or immi-nent investigation or proceeding”).

14. See United States v. Russell, 3:07-CR-31 (D. Conn.); see also United States v.Triumph Capital Group, Inc., 544 F.3d 149,165-66 (2d Cir. 2008) (attorney convicted ofobstruction for deleting from computerfraudulent consulting contracts he knewwere likely to be sought by grand jury sub-poena); United States v. Scruggs, 549 F.2d1097, 1103-04 (6th Cir.) (attorneys convictedof obstruction of justice and possessingstolen funds after accepting stolen moneyas a fee, subsequently denying doing so anddestroying the cash), cert. denied, 434 U.S.824 (1977).

15. See Clark v. State, 159 Tex. Crim. 187,261 S.W.2d 339, 347 (no privilege regardingattorney’s advice that client destroy murderweapon because such communications arenot within “legitimate course of profession-al employment”), cert. denied, 346 U.S. 855(1953).

16. See People v. Superior Court(Fairbank), 192 Cal. App. 3d 32, 39, 237 Cal.Rptr. 158 (1987).

17. See United States v. Hubbell, 530U.S. 27, 38 (2000); Baltimore City Dep’t ofSoc. Servs. v. Bouknight, 493 U.S. 549, 554-55(1990); Fisher v. United States, 425 U.S. 391,410 n.11 (1976); but cf. In re January 1976Grand Jury, 534 F.2d 719 (7th Cir. 1976)(attorney-client privilege inapplicable toclient’s transfer of stolen funds to lawyerbecause not type of communicationclients would legitimately expect to beconfidential).

18. See, e.g., Clutchette v. Rushen, 770F.2d 1469, 1472 (9th Cir. 1985) (client toldattorney location of incriminating receipts,which was privileged, but once attorney’sagent retrieved them, counsel was obligat-ed to turn them over to law enforcement),cert. denied, 475 U.S. 1088 (1986).

19. See Morrell v. State, 575 P.2d 1200(Alaska 1978) (not ineffective assistancewhere lawyer helped third party give policea kidnap plan prepared by client afterlawyer returned it to third party who hadgiven it to lawyer); State v. Carlin, 7 Kan. App.2d 219, 640 P.2d 324 (1982) (no error torequire defense counsel to give prosecutors

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tape recordings of defendant’s threats thatlawyer obtained from third party).

20. See also People v. Lee, 3 Cal. App. 3d514, 83 Cal. Rptr. 715 (1970) (no violation ofdefendant’s rights where evidence includedbloody shoes client’s wife gave to defenselawyer, who provided them to court); Peoplev. Sanchez, 24 Cal. App. 4th, 30 Cal. Rptr. 2d111, 119-20 (1994) (no error where trialcourt gave prosecutor defendant’s “murderchecklist” that family gave defense counselwho delivered it to court in sealed envelopewithout explanation or notice to prosecu-tor, since defense counsel did no more thanhis “legal obligation”).

21. See note 17, supra.22. See Commonwealth v. Ferri, 410 Pa.

Super. 67, 599 A.2d 208 (1991) (privilege didnot preclude attorneys’ testimony thatdefendant gave them clothing worn duringhomicide where testimony was required toestablish chain of custody and defensedeclined to stipulate to authenticity).

23. JOHN WESLEY HALL JR., PROFESSIONAL

RESPONSIBILITY IN CRIMINAL DEFENSE PRACTICE, § 28:60, n.5 (3d ed. 2005 & Supp. 2009).

24. See Stenhach, 365 Pa. Super. 5, 23-24.25. See State v. Douglass, 20 W. Va. 770

(1982) (lawyer’s observations of location ofclient’s pistol are protected by attorney-client privilege, but firearm itself and fact itwas found in attorney’s trunk are admissible).

26. See Rubin v. Gee, 128 F. Supp. 2d 848(2001) (cataloguing crimes potentially per-petrated by lawyers and their investigatorwho meddled with corpse, took possessionof murder weapon, and removed bulletsfrom defendant’s purse and placed them inlaw office), aff’d 292 F.3d 396 (2002).

27. Id.28. See Oklahoma Bar Ass’n v. Harlton,

669 P.2d 774 (Okla. 1983) (lawyer suspendedafter federal conviction for being an acces-sory to concealing firearm in order to hinderprosecution); In re Ryder, 263 F. Supp. 360(E.D. Va.) (lawyer disciplined for movingshotgun and stolen money from client’ssafe deposit box to his own because “[i]t isan abuse of a lawyer’s professional responsi-bility knowingly to take possession of andsecrete the fruits and instrumentalities of acrime.”), aff’d 381 F.2d 713 (4th Cir. 1967). Cf.Stenhach, 514 A.2d at 116-27 (vacating onstatutory overbreadth grounds two publicdefenders’ convictions for hindering prose-cution and evidence tampering by with-holding rifle stock until ordered by court toprovide it to prosecutor during prosecu-tion’s case at trial); Wenmark v. State, 602N.W.2d 810 (Iowa 1999) (ineffective assis-tance to advise client to tell law enforce-ment about location of weapon based oncounsel’s mistaken belief that non-disclo-sure was obstruction of justice, but clientnot prejudiced because disclosure was not

inconsistent with self-defense and provoca-tion defenses).

29. People v. Meredith, 29 Cal. 3d 682,175 Cal. Rptr. 612, 631 P.2d 46 (1981).

30. See also Superior Court (Fairbank),192 Cal. App. 3d 32 (lawyer obligated toinform court and prosecution aboutweapons used in charged offense thatcounsel retrieved from original locale); cf.Hitch, 708 P.2d 72 (lawyer required to givepolice watch provided to counsel by thirdparty who found it in defendant’s jacket).

31. People v. Belge, 372 N.Y.S.2d 798(1975).

32. See Model Rules 1.1 (Competence),1.6 (Confidentiality of Information), FED. R.EVID. 501 (privileges determined by com-mon law in criminal cases); available athttp://www.abanet.org/cpr/mrpc/mrpc_toc.html. But c.f.Model Rule 1.6(b) (exceptionsto duty of confidentiality).

33. See note 17, supra.34. ABA CRIMINAL JUSTICE STANDARDS:

PROSECUTION FUNCTION (3d ed. 1993); availableat http://www.abanet.org/cpr/mrpc/mrpc_toc.html. Although the ABA CriminalJustice Standards are aspirational, variouslaws require prosecutors to comply withadditional protocols regarding evidence ofa crime in a lawyer’s possession. See, e.g., 42U.S.C. § 2000aa-11(a)(3) (recognizing “spe-cial concern for privacy interests in cases inwhich a search or seizure for such docu-ments would intrude upon a known confi-dential relationship such as that which mayexist between … lawyer and client“); 28C.F.R. § 59.4(b) (heightened protocolsregarding search warrants for materialsheld by lawyers).

35. See Superior Court (Fairbank), 192Cal. App. 3d at 38-40 (chain of custody stipu-lation eliminates need for prosecution evi-dence about acquiring evidence fromdefense counsel, and court should “exerci[se]care to shield privileged communicationsand defense strategies from prosecutionview” when giving prosecutors access to evi-dence); Olwell, 64 Wash. 2d at 834 (defenseattorney required to produce client’s knifeover privilege objection, but prosecutorsrequired to take “extreme precautions” toprevent jurors from learning lawyer provid-ed knife); People v. Nash, 418 Mich. 196, 341N.W. 2d 439 (1983) (reversible error for pros-ecutor to tell jury that defense counsel wassource of incriminating evidence); Andersonv. State, 297 So. 2d 871 (Fla. App. 1974)(where defendant gave stolen property tolawyer’s receptionist, prosecutor precludedfrom eliciting testimony that police receivedproperty from defense lawyer); United Statesv. Authement, 607 F.2d 1129, 1131-32 (5th Cir.1979) (prosecutor could introduce brassknuckles defendant gave lawyer, but jurynot told they were subpoenaed from coun-

sel). Cf. People v. Sullivan, 271 Cal. App. 2d 531,542 (where lawyer testified on direct that heobtained guns using claim check providedby a client, court properly sustained lawyer’sinvocation of attorney-client privilegeregarding client’s identity during cross-examination by defense), cert. denied, 396U.S. 973 (1969); State v. Green, 493 So.2d at1182 (harmless error for prosecution to elicitattorney’s testimony about client’s identityor circumstances surrounding counsel’s pos-session and delivery to law enforcement ofgun client used to commit crime then pro-vided to lawyer).

36. The District of Columbia Office ofBar Counsel may accept from lawyers, andturn over to appropriate authorities, tangi-ble evidence implicating a client. See D.C.RULES OF PROF’L CONDUCT R. 3.4 CMT. [5].

37. See Hitch, 708 P.2d at 78-79 (reject-ing D.C. procedure because “it is the factthat the watch was found in defendant’sjacket that makes the watch material evi-dence. By returning the watch anonymous-ly to the police, this significance is lost.”).

38. See Dean v. Dean, 607 So. 2d 494(Fla. Dist. Ct. App. 4th Dist. 1992) (denyingorder compelling lawyer to reveal whohired him solely to return a portion of prop-erty stolen from victim).

39. See, e.g., Briggs v. McWeeny, 796 A.2d516 (Conn. 2002) (sanctioning counsel whoattempted to suppress damaging engineer-ing report by, inter alia, instructing non-client that communications were privilegedand report was confidential).

40. See Hall, supra note 23; see also THE

RESTATEMENT THIRD, LAW GOVERNING LAWYERS

§ 119 (2009); Standard 4-4.6 (PhysicalEvidence), ABA STANDARDS FOR CRIMINAL JUSTICE:DEFENSE FUNCTION, 3d ed. (1993), available athttp://www.abanet.org/crimjust/stan-dards/dfunc_toc.html. n

About the AuthorEvan A. Jenness is a criminal defense

lawyer and Co-Chairof NACDL’s EthicsAdvisory Commit-tee. The opinionsexpressed in thisarticle are her own.

Evan A. Jenness2115 Main StreetSanta Monica, CA 90405310-399-3259Fax 310-392-9029

evan@jennesslaw.comE-MAIL

Reprinted with permission.