YourABA December 2012 Masthead

Ethical dilemmas in accessing and possessing evidence

What duties do lawyers have to alert authorities when they learn about evidence that may incriminate a client — either from communications with the client or a third party, or when the lawyer finds himself in possession of such evidence? That was the question the discussion centered on in the recent ABA CLE “Legal Ethics Issues in Access to and Possession of Evidence.”  

The physical item is not protected as privileged.

The discussion underscores constitutional and public policy interests that are reflected in American law and rules that sometimes are conflicting.

“On one side of the equation, we place a premium on confidential and privileged communications between counsel and the client,” says Loretta Lillios, moderator of the panel and assistant attorney general in the Government Bureau at the Office of the Attorney General of the Commonwealth of Massachusetts. “We recognize Sixth Amendment guarantees of effective representation that at times may require counsel to take possession of incriminating evidence in order to test it. We also recognize the protections afforded by the Fifth Amendment against compelled self-incrimination.

“On the other side of the equation, we acknowledge that rules governing attorney conduct require candor toward the tribunal,” she says. “We recognize that attorneys have an interest in the absence of clear-cut rules of avoiding professional discipline, and we recognize the significance and importance of the truth-seeking function in the trial process as well as, of course, the public policy and the societal values placing great significance on the integrity of life, safety and property interests.”

ABA Rule 3.4 states that a lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal it. “The word unlawfully there demonstrates somewhat circular reasoning because our challenge is to determine what is lawful and what is not lawful,” Lillios says. “The District of Columbia counterpart rule tries to improve upon the word unlawfully by stating that a lawyer shall not obstruct another party’s access to evidence or alter, destroy or conceal it if the lawyer reasonably should know that the evidence is or may be the subject of discovery or subpoena in any pending or criminal proceeding.”

The lawyer has a legitimate interest in receiving certain kinds of evidence, says Stephen Gillers, a professor of law at New York University School of Law and a former vice dean. The evidence could have probative value; it may even be exculpatory in a particular situation. There are other societal interests. Even if the lawyer doesn’t need to test or read a document, for example, the item might be dangerous. “It might be a weapon, and the society may have an interest in taking the weapon away from the source: the client or the third party,” Gillers says. “The item may be contraband. It may be drugs, for example, and the society may have the same interest in not sending the client or a third party back on the street with the contraband. The item might be the fruits of a crime: money stolen in a bank robbery or the victim’s jewelry. And society, and certainly the victim or the bank has interests in not letting the alleged perpetrator leave the law office with the money or the jewelry.”

The lawyer has
a legitimate interest
in receiving certain kinds of evidence.

The physical item is not protected as privileged, says Gillers, a member of the ABA International Legal Education Committee. “But if the client gives it to the lawyer, no one can make the lawyer reveal that she got it from the client,” he says. “Some courts allow the lawyer to return the item, but again, maybe we don’t want the lawyer to return the fruits of the crime or contraband, and some courts don’t allow the lawyer to return the item. That is the price of taking the item to read or inspect it is that you’ll have to turn it in, and some items all by themselves can incriminate the client because of forensic tests.”

Gillers and the other panelists grappled with these issues when considering several hypothetical scenarios during the discussion. Here is one:

You represent a client named Peter Chalk who’s charged with setting a fire to a neighbor’s car. The fire spread to two nearby cars. No one was hurt. The neighbor and Peter had been in litigation over the boundary between their homes, and the neighbor won. The prosecutor’s theory is that the fire was retaliatory. Peter is in jail awaiting trial. He tells his wife to bring you, the lawyer, a notebook hidden in a closet. She leaves the notebook at your office while you are out. You look at it and in the notebook, in Peter’s handwriting, is a list of ways that Peter could “get even with his neighbor.” What do you do from here?

Steve Gillers: This is a situation in which the piece of real evidence is inculpatory … the prosecutor could just use a handwriting expert, maybe a fingerprint expert, to associate the notebook with the client. Now the lawyer has a legitimate interest in looking into the notebook in order to determine what evidentiary value it has. It may have exculpatory value.

Now another possibility is the lawyer could attempt to return the notebook to the wife and say, “If I keep it, then I have to give it to the prosecutor in this jurisdiction, but I’m allowed to give it back to you, and that’s what I’m doing.” If it’s a jurisdiction that does allow it, that may be the best course for the lawyer, although if there’s exculpatory information in the notebook, the lawyer may want to keep it to ensure that it’s not lost.

But there are also jurisdictions that say that on taking possession or receiving possession unwillingly — that is, it was left at his office — the lawyer must hand it over to the prosecutor and does not have the option of turning it back to the wife. And yet there is a third view from a Supreme Court case in Pennsylvania that says you can turn it over if you can be sure it will not be compromised. Well, you can’t really be sure, so a lawyer in that situation, as a matter of self-protection, should give it over to the authorities.

Now if the wife had come by and offered the notebook to the lawyer while he was there and the lawyer was aware of the law of the jurisdiction, he might think, well, if I take this and read it, I may be backed into a corner where I’m then going to have to hand it into the authorities, and it can be quite damaging to my client. So I might choose not to take it for that reason. Structure in the case law might dissuade the lawyer from taking the notebook even though he has a valid reason for taking it, because after having read the notebook, he may be obligated to turn it over, and that will be rather powerful evidence against the client. So he may refuse to take it, and yet if he refuses to take it, the client is deprived of the advice of counsel insofar as the content of the notebook might legitimately bear on the legal and factual defense the lawyer decides to mount. And that’s just not acceptable in my view.

It seems to me that lawyers should, without fear of a disciplinary violation or an obstruction of justice or other criminal charge, be able to hold the notebook in his or her office unchanged, not altered in any way and certainly not destroyed, rather than having to turn it over and rather than giving it back. It seems to me that the state is better off if the lawyer holds the notebook than if he returns it to the spouse.

I don’t think the lawyer is in harm’s way simply by saying to the wife, in this example, take this back; I don’t want it, or take it back, or if you will not, I’m going to have to give it to the state.

For more hypothetical scenarios and discussion, access the CLE here. Other panelists included Peter Krupp, founding partner of Lurie & Krupp LLP, and Robert “Bob” Ullmann, partner at Nutter McClennen & Fish LLP. Sponsors of this CLE are the ABA Criminal Justice Section, Section of Litigation, Section of Labor and Employment Law and the Center for Professional Responsibility.

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