Hot Potatoes: The Perplexing Problem of Evidence of Crime
LACBA Update, March 2010
By Evan A. Jenness, a criminal defense attorney who is co-chair of the Ethics Advisory of the National Association of Criminal Defense Lawyers, and vice chair of the LACBA Professional Responsibility and Ethics Committee. The opinions expressed are her own.
Protecting client confidences and acting in clients’ best interests are among a lawyer’s most inviolable duties,1 but everyone is subject to criminal laws regarding obstruction of justice, spoliation, and related offenses. Lawyers’ professional obligations specifically include the duty to follow all laws.2 Accordingly, counsel who acquire evidence implicating a client in a crime may be thrust into a compromising position. How compromising depends on the nature of the evidence and the circumstances of counsel’s acquisition of it.
Although case law is not uniform, the type of evidence usually is pivotal.3 Tangible evidence of a crime falls into two broad categories: 1) contraband, instrumentalities, or fruits of a crime, or 2) ordinary items with evidentiary significance. Possessing the former requires a lawyer to sua sponte take remedial action, but possessing the latter usually does not. Whatever the nature of the evidence, counsel’s course of action should include doing all possible to protect clients’ confidences and best interests within the bounds of the law.
Contraband, instrumentalities, and fruits of a crime. It is a crime for anyone to knowingly possess or transfer contraband, which includes, for example, illegal narcotics, unregistered firearms, unlawful explosives, and child pornography. Simple possession of the fruits of a crime, such as stolen money or merchandise, counterfeit items, or phony identification cards, also may violate an array of federal and state laws. If a lawyer’s possession helps a client hide evidence from law enforcement or impedes law enforcement’s access to the evidence, counsel may be vulnerable to accusations of obstruction of justice, misprision, aiding and abetting, or conspiracy. Possessing the instrumentalities of a crime, such as a killer’s bloody glove or a laptop used to send e-mails to duped investors, may violate the law if it helps a client secrete the evidence or hinders law enforcement’s ability to find it. It also may constitute spoliation and related crimes if counsel’s possession impairs the quality of the evidence.
Because possessing contraband, instrumentalities, or fruits of a crime usually will run afoul of one or more criminal laws, lawyers who acquire such evidence must turn it over to law enforcement, even if doing so could implicate a client in wrongdoing. Moreover, if counsel (or anyone working for counsel) retrieved or moved the evidence from its original locale, counsel may be compelled to disclose the original situs—even if the information originally came from confidential client communications. Counsel also may be required to testify regarding chain of custody and therefore disqualified from representing the client.
What about just giving the evidence back to the client or to whoever provided it to counsel? While this would achieve the goal of dispossession, it could aggravate counsel’s exposure because knowingly transferring certain evidence (particularly contraband) is an even more serious offense than mere possession. It also could be construed as helping a client conceal the evidence (whether contraband, instrumentalities, or fruits) from law enforcement. However, if counsel can return noncontraband evidence to its source without impairing the condition of the evidence or hindering law enforcement’s efforts to prosecute the client or others, counsel may do so after a “reasonable time for inspection.”4
What about destroying the evidence? This is a poor choice. Knowingly destroying evidence of a crime may constitute spoliation, obstruction of justice, or misprision under federal and state laws. The lawyer for a Connecticut church learned this the hard way when he was indicted for destroying a laptop that he knew contained child pornography. The laptop was delivered to the lawyer by church officials who received it from a church employee, who discovered the images after borrowing the laptop from its owner, the church organist.5
Suggesting to clients that they destroy or hide evidence is an even worse choice. Encouraging another to break the law is akin to breaking the law and can garner a particularly stiff sentence where the advisor holds a position of trust, such as a lawyer. Encouraging a client to break the law also would violate Rule 3-210 of the California Rules of Professional Conduct, which prohibits advising a client to violate any law without a good faith belief that the law is invalid.6
Why not put the evidence in the client file and wait for law enforcement to ask for it? This will not solve the problem because the mere possession of contraband is a crime, and knowingly possessing contraband, instrumentalities, or fruits arguably could hinder law enforcement’s access to the evidence, thereby exposing counsel to potential accusations of obstruction of justice, misprision, or aiding and abetting a client’s efforts to conceal the evidence. Further, if the evidence is evanescent (blood, fingerprints, saliva, DNA), prolonged possession might impair its quality and thus expose counsel to allegations of spoliation.
A leading case considering these issues is People v. Meredith7 in which a lawyer’s investigator retrieved a murder victim’s wallet from a place described to the lawyer by the client. The lawyer was required to turn over the wallet to law enforcement, and the investigator was compelled to disclose the original location of the wallet notwithstanding the attorney-client privilege and duty of confidentiality.8
In contrast to Meredith, in People v. Belge9 the court dismissed criminal charges against a defense lawyer who personally observed but otherwise left alone a corpse to which his client had directed him. The lesson learned? Look, but don’t touch.10 Once a lawyer takes possession of, moves from the original locale, tests, or otherwise meddles with evidence of a crime, information about the original location and condition of the evidence loses any confidentiality protections.11
What if there is no pending investigation or proceeding at the time counsel acquires an item? This may create practical problems, such as accurately assessing whether the item is contraband, or an instrumentality or fruit of a crime, and if so, which law enforcement agency gets the package? However, it does not alter counsel’s duties. The obligation to turn over items that counsel knows are contraband, instrumentalities, or fruits of a crime is self-executing, and no prosecution motion or court order is required.12
Ordinary materials with evidentiary significance. What about the situation where a client provides counsel with ordinary materials that potentially incriminate a client, such as e-mail, correspondence, or bank and phone records? This is typical in individual as well as corporate representation where an investigation or litigation is pending. Or what about the less common situation where ordinary evidence directly implicates a client in wrongdoing, such as a written confession, fraudulent records signed by a client, or a photograph of a client wearing stolen jewelry or embracing a fugitive?
The mere fact of counsel’s possession of such evidence is not a crime. However, a lawyer who knowingly hides evidence from law enforcement or impedes law enforcement’s ability to find it risks being accused of obstruction of justice or misprision. If a client intends to use counsel’s offices as a place to hide evidence, attorney-client communications surrounding the transfer of the evidence to counsel may not be privileged.13 Additionally, where counsel (or someone acting at counsel’s direction) removed the materials from their original location, thereby depriving law enforcement of any opportunity to find them, counsel may become obligated to turn them over to law enforcement.14 From a practical perspective, possessing such evidence also may increase the chances of a law office search.
For all of these reasons, counsel should consider refusing to take custody of the originals of such materials or returning the originals to whoever provided them after making duplicates.15 Possessing copies of the materials for purposes of advising a client or preparing a matter is wholly appropriate. Indeed, it often is essential to effectively represent a client.
Where the circumstances surrounding counsel’s possession of ordinary evidence (i.e., materials other than contraband, instrumentalities, or fruits of a crime) do not require disclosure to law enforcement, counsel should not do so sua sponte unless disclosure advances a client’s interests. What if a subpoena or court order directs the disclosure of ordinary incriminating evidence? Counsel should consider available legal challenges. An individual client’s confession or other incriminating statements are protected from disclosure by the right to remain silent under the Fifth Amendment of the U.S. Constitution and Article I, Section 24 of the California Constitution. Even if the contents of incriminating records may not be privileged, if the act of producing the evidence could incriminate an individual client, or “furnish a link in the chain” of evidence that could incriminate the client, the client has a Fifth Amendment right to decline to produce the evidence absent act of production immunity.16 Where the evidence includes attorney-client communications or attorney work-product, a challenge may lie on behalf of both individual and corporate clients.
The duty of confidentiality. Whatever course of action is followed, counsel must protect clients’ confidences and secrets17 and the attorney-client privilege18 to the greatest extent possible. This requires counsel to limit disclosure to the bare minimum required by law.19 It also may require intermediate steps to shield the identity of a client or counsel. Would any nonprivileged evidence be concealed if a third party rather than counsel delivered contraband, fruits, or instrumentalities to law enforcement? If not, this could be an appropriate way to balance counsel’s legal obligations with counsel’s duties to the client. Anonymously delivering the evidence to law enforcement also may be appropriate, at least where counsel (or one of counsel’s agents) did not remove the items from a crime scene or their original locale.
If counsel must disclose evidence implicating a client, including evidence about the original situs or condition of the evidence, or its chain of custody, counsel should seek appropriate safeguards to protect confidential information. For example, if defense counsel stipulates to the chain of custody of an item, prosecutors should not be allowed to tell a jury how the evidence was obtained.20
Staying out of the fire. Ideally, lawyers should avoid possessing evidence of a client’s crime.21 However, the problem often becomes apparent only after counsel has an item. No single authority describes how to handle these situations, but the following may be useful guideposts:
1. Do not take possession of, move, or otherwise meddle with potential contraband, instrumentalities, or fruits of a crime, and train your subordinates and agents accordingly.
2. Warn clients or third parties seeking to provide evidence to you that if it’s illegal for you to possess it, you will be required to turn it over to law enforcement.
3. Do not destroy or conceal, or counsel a client to destroy or conceal, any potential evidence, and train your subordinates and agents accordingly.
4. If you possess contraband, instrumentalities, or fruits, turn them over to law enforcement pursuant to a strategy that minimizes the revelation of client confidences and the adverse impact on a client.
5. If a client provides ordinary evidentiary materials (i.e., items that are not contraband, instrumentalities, or fruits) that may implicate a client in wrongdoing, ordinarily you need not disclose them to law enforcement unless required to do so by a subpoena or court order.
6. Challenge any subpoena or court order requiring the disclosure of ordinary evidentiary materials that may implicate a client in wrongdoing where there is a legal basis for doing so.
7. Where the mere act of producing nonprivileged materials on behalf of an individual client may implicate the client in wrongdoing, or provide a link in a chain of evidence that may implicate a client, challenge disclosure of the evidence absent act of production immunity.
8. Avoid accusations that your offices were used as a repository for incriminating evidence by returning to the depositor the originals of evidentiary materials (other than contraband, instrumentalities, or fruits), even if you keep copies of them.
9. Consider seeking input from colleagues or the advice of outside counsel where the results of research are inconclusive.
10. Document your efforts to legally and ethically resolve the challenging issues presented by evidence of client wrongdoing to help protect against any later allegations of inappropriate conduct.
1 See Cal. Bus. & Prof. Code §6068(e)(1); Cal. R. Prof’l. Conduct, R. 3-100; Cal. Evid. Code §954.
2 See Cal. Bus. & Prof. Code §6068(a).
3 See Mueller & Laird, 2 Federal Evidence (3d ed), §5:26 (Hard Cases–Evidence Delivered to Lawyer) (collecting cases).
4 See Commonwealth v. Stenhach, 365 Pa. Super. 5, 23-24, 514 A. 2d 114, 123-24 (1986).
5 See United States v. Russell, 3:07-CR-31 (D. Conn.); see also United States v. Kellington, 139 F. 3d 909 (9th Cir. 1998) (lawyer convicted on felony charges of causing another to destroy evidence of client’s crime) (unpublished); United States v. Scruggs, 549 F. 2d 1097, 1103-04 (6th Cir.) (attorneys convicted of obstruction of justice and possessing stolen funds after accepting stolen money as a fee, subsequently denying doing so and destroying the money), cert. denied, 434 U.S. 824 (1977); cf. Cal. R. of Prof’l Conduct R. 5-220 (lawyer “shall not suppress any evidence that the member or the member's client has a legal obligation to reveal or to produce”).
6 See also Clark v. State, 261 S.W. 2d 339, 347 (Tex.) (no privilege regarding attorney’s advice that client destroy murder weapon because such communications are not within “legitimate course of professional employment”), cert. denied, 346 U.S. 855 (1953).
7 People v. Meredith, 29 Cal. 3d 682, 175 Cal. Rptr. 612, 631 P. 2d 46 (1981).
8 See also People v. Lee, 3 Cal. App. 3d 514, 83, Cal.Rptr. 715 (1970) (no violation of defendant’s rights where evidence included bloody shoes client's wife gave to defense lawyer, who provided them to court); People v. Superior Court (Fairbank), 192 Cal. App. 3d 32, 237, Cal. Rptr. 158 (1987) (lawyer obligated to inform court and prosecution about weapons used in charged offense that counsel retrieved from original locale).
9 People v. Belge, 372 N.Y.S. 2d 798 (1975).
10 See also State v. Douglass, 20 W. Va. 770 (1982) (lawyer’s observations of location of client’s pistol are protected by attorney-client privilege).
11 See In re Ryder, 263 F. Supp. 360 (E.D. Va.) (lawyer disciplined for moving money and shotgun from client's safe deposit box to his own; “It is an abuse of a lawyer’s professional responsibility knowingly to take possession of and secrete the fruits and instrumentalities of a crime.”), aff'd per curiam, 381 F. 2d 713 (4th Cir. 1967).
12 See Superior Court (Fairbank), 192 Cal. App. 3d at 39.
13 See Cal. Evid. Code §956 (“there is no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud”).
14 See, e.g., Clutchette v. Rushen, 770 F. 2d 1469, 1472 (9th Cir. 1985) (client told attorney location of incriminating receipts, which was privileged; once attorney’s agent retrieved them, counsel was obligated to turn them over to prosecutors) (applying California law).
15 But cf. Hitch v. Pima County Superior Court, 146 Ariz. 588, 593-95, 708 P. 2d 72, 78 (1985) (attorney may turn over to prosecutor evidence received from third party if attorney reasonably believes evidence would be destroyed if returned to third party).
16 See United States v. Hubbell, 530 U.S. 27, 38 (2000); Baltimore City Dep't of Soc. Servs. v. Bouknight, 493 U.S. 549, 554-55 (1990); Fisher v. United States, 425 U.S. 391, 410 n. 11 (1976).
17 Cal. Bus. & Prof. Code §6068(e)(1); Cal. R. Prof’l. Conduct, R. 3-100.
18 Cal. Evid. Code §954.
19 See COPRAC Op. 1986-89 (attorney who accepts stolen property from client may not disclose fact of theft but may be required to deliver stolen property to authorities and to disclose property’s possession and location).
20 See, e.g., People v. Superior Court (Fairbank), 192 Cal. App. 3d 32, 38-40, 237 Cal. Rptr. 158 (where defense counsel is obligated to disclose incriminating evidence, chain of custody stipulation eliminates need for prosecution evidence about how evidence was obtained, and court should “exerci[se] care to shield privileged communications and defense strategies from prosecution view” when giving prosecutors access to evidence); State v. Olwell, 64 Wash. 2d 828, 834, 394 P. 2d 681 (1964) (where attorney required to produce client’s knife over objection of attorney-client privilege, prosecutors must take “extreme precautions” to prevent jurors from learning that defense counsel disclosed the evidence).
21 See COPRAC Op. 1984-76 (counsel should carefully consider consequences before taking possession of evidence of client’s crime and warn client in advance about duty to turn over certain evidence to prosecutors).