Opinion #60. Attorney's Acceptance of Possession of Physical Evidence of a Crime

Issued by the Professional Ethics Commission

Date Issued: September 4, 1985

Facts

An attorney represents a client charged with or under investigation for a crime. During the course of the representation, the client discloses to the lawyer that he possesses evidence of the crime which evidence incriminates the client (e.g., the fruits of the crime, the instrumentality of the crime such as a weapon, or a document implicating the client). The client asks the lawyer to take custody of the evidence or the lawyer offers to hold the evidence. In any event, the lawyer takes custody of the evidence for these or other reasons, intending to hold the evidence temporarily or permanently.

Questions Presented

What is the duty of the lawyer in these situations? May the lawyer take possession of the evidence? If he does, may he keep it and if so how long? If he may not retain it, when and to whom and in what manner should it be transferred?

Opinion

At the outset, it is clear that the lawyer is under no ethical obligation to act as custodian of evidence for a client. Should, however, the lawyer elect to take possession of the evidence, for whatever reason, the lawyer will be confronted with complex and conflicting ethical and legal obligations. This opinion will, therefore, address the problem facing an attorney who in fact takes possession of physical evidence which incriminates a client and the disclosure of which to third parties could be damaging to the client.

The lawyer who takes possession of evidence of a crime is faced with a serious dilemma. On the one hand, Bar Rule 3.6(l)(1) prohibits a lawyer from knowingly revealing a confidence or secret of his client. Under the relevant facts here, the evidence held by the lawyer is such that its disclosure would seriously damage the client. This suggests that the evidence should be held in confidence. On the other hand, however, that same Rule provides an exception for disclosure permitted by the Rules or “required by law or Court order.” Similarly, Rule 3.7(b) prohibits a lawyer from concealing “information” legally required to be revealed. Since the Maine Criminal Code in 17‑A M.R.S.A. § 455 and 753 makes it a crime to conceal evidence, the lawyer may be ethically obligated by Rules 3.7(b) and the exception to 3.6(l)(1) to reveal and deliver the incriminating evidence to the investigating authority.

The historical and policy basis for these conflicting duties may be summarized as follows. This attorney‑client privilege had its origin in the Elizabethan era. It was based on the lawyer’s oath and honor as a gentleman rather than any concern for the client’s welfare.[1] Although its rationale has since changed, the privilege still exists with equal force. The purpose of the rule under modern legal theory is to encourage complete and open communication between the lawyer and client in order to enable the lawyer to adequately represent the client without fear by the client of prejudicial disclosure of information communicated to the lawyer. Advocates of the rule argue that any erosion of this principle that permits or requires disclosure of statements or objects given to a lawyer by the client compromises this principle and turns the lawyer into an agent of the prosecution.

To compel the defendant’s attorney to produce the evidence would, seemingly, be similar to compelling the client to testify. A collateral effect of such forced production might involve effectively denying the right to counsel by inhibiting the defendant from confiding in his attorney. By producing information against a client, the attorney would become an advocate against his own client, a role the legal profession has long resisted. Comment, The Right of a Criminal Defense Attorney to Withhold Physical Evidence Received from his Client, 38 U. Chi.L. Rev. 211, 212‑213 (1970).

The countervailing policy consideration notes quite properly that it is illegal to conceal evidence of a crime. [2] Since a lawyer may not himself break the law, and since the lawyer’s role has long been characterized as that of an “officer of the court,” the lawyer may be required to disclose and surrender to the prosecutor any physical evidence in his possession even if the effect of doing so is detrimental to the interests of the client. To do less is to make the lawyer a participant in concealing the crime.

[T]he legal profession, for just as long a time, has considered its members to be officers of the court, owing a duty to the court as well as to the client. To permit the withholding of physical evidence (which may in many cases preclude the prosecution from getting the evidence at all) seems to contradict the lawyer’s duty to the court. Id. at 213.

A review of case law reveals little authority on what one would expect to be a frequently encountered situation. Our research discloses a bare handful of cases which have addressed these issues. In each of those cases, the Court concluded that a lawyer in possession of physical evidence of a crime (i.e., the fruits of the crime, the instrumentality, or other evidence) had a duty to turn that evidence over to the prosecution. In Re January 1976 Grand Jury, 534 F.2d 719 (7th Cir. 1976); In Re Ryder, 263 F.Supp. 360 (E.D. Va. 1967); Morrell v. Alaska, 575 P.2d 1200 (Alaska 1978); affirmed 381 F.2d 713 (4th Cir. 1967); People v. Lee, 3 Cal.App. 3d 514, 83 Cal. Rept. 715 (1970); and State ex rel. Sowers v. Olwell, 394 P.2d 681 (Wash. 1964).[3]

Of those cases, the one most widely cited and most clearly on point is In Re Ryder. In Ryder a lawyer representing a client in a criminal matter obtained from his client stolen money and a sawed‑off shotgun used in a robbery. The lawyer took the items from the client and placed them in the lawyer’s safe‑deposit box. The Court held in clear and uncompromising terms that notwithstanding the fact that Attorney Ryder had discussed the ethical implication of his proposed action with a former officer of the local bar association and intended after the trial to return the money to its rightful owner, Ryder acted with an intention to conceal the evidence and therefore had violated the Virginia Canons of Ethics.

More recently, the Alaska Supreme Court in Morrell v. State, supra, addressed the question of whether a defendant’s right to counsel had been violated when his former attorney provided to the prosecution certain inculpatory physical evidence obtained by the lawyer from a third person during the course of representing the defendant. Although the Court did not directly address the ethical rules, the Court held that “a criminal defense attorney must turn over to the prosecution real evidence that the attorney obtains from the client.” Id. at 575 P.2d at 1210.

In State ex rel. Sowers v. Olwell, supra, the Washington Court considered the question of whether an attorney should be held in contempt for refusing to comply with a subpoena duces tecum requiring him to answer questions at a coroner’s inquest regarding a knife delivered to the lawyer by the client. While the Court held that the particular subpoena was defective, it also held, in dicta that as a general proposition, a lawyer had a duty to turn incriminating evidence over to the prosecutor after retaining it for a “reasonable period of time.” The prosecutor was free to use the evidence at trial, subject only to the limitation of not disclosing the lawyer as the source.

Similarly, in In Re January 1976 Grand Jury, supra, the Seventh Circuit considered an appeal from a finding of contempt against an attorney who refused to produce documents in response to a grand jury subpoena. The Court did not directly discuss whether the attorney had an ethical obligation to voluntarily disclose incriminating documents to law enforcement agencies, but rather dealt only with the more narrow question of whether the attorney‑client privilege provided a basis for refusing to respond to a subpoena. The Court held that the privilege did not prevent disclosure inasmuch as the client himself could have been compelled to produce the documents if he had been subpoenaed. The subpoena to the lawyer only sought that which the state could have compelled by a subpoena to the defendant.

In the case of People v. Lee, the California Supreme Court considered the question of whether blood stained shoes given by the defendant to his lawyer, and held by the judge at the joint agreement of the lawyer and prosecutor, could be seized by warrant and introduced at trial. The Court held such seizure permissible and admitted the evidence. In so doing, the Court also stated that the attorney‑client privilege did not give a lawyer the right to withhold evidence and that it was an abuse of a lawyer’s duty of professional responsibility to knowingly take possession of and secrete the instrumentalities of a crime.

In each of the above cited cases, the Court resolved the ethical/constitutional issue with relative ease and certainty. However, of these cases, only Ryder dealt directly with the question of legal ethics. The other cases dealt with disclosure issues in the context of criminal appeals, contempt proceedings or other proceedings. In contrast, however, the commentators have been more troubled by the ethical, constitutional and practical dilemma posed by these situations.[4] Indeed, it is fair to say that the commentators’ analyses have been far more thoughtful than the above cited judicial opinions, most of which express their opinions in conclusory terms with little considered evaluation of the competing legal and policy considerations. Many of the commentaries have been severely critical of the standard of conduct established by the courts.[5] Unfortunately, the commentaries also largely share a common flaw. Most provide no clear answer to the dilemma and those few that do so offer little practical guidance to “real world” practitioners.[6] Similarly the Bar Rules, and their predecessor, provide no clear standard of conduct. As stated in the words of one commentator discussing the provisions of the earlier ABA Model Code of Professional Responsibility:

It provides meager guidance for attorneys, disciplinary committees, or courts concerning the attorney’s duty in dealing with incriminating evidence. . . . [T]he Code offers no guidance for resolving the conflict. Comment, Ethics, Law and Loyalty: The Attorney’s Duty to Turn Over Incriminating Physical Evidence, 32 Stanford L. Rev. 977, 983 (1980).

Since the ultimate determination of an attorney’s duty in such cases depends on the application and interpretation of the Maine Criminal Code, we conclude that we are unable to authoritatively answer the questions. As a matter of policy the Grievance Commission, our predecessor, has consistently held that it was without authority to interpret statutory law. We believe that such a policy is sound. Although this Commission is empowered to interpret the Bar Rules we are not similarly empowered to interpret statutes. Our reading of a statute represents only our opinion and does not bind a court or a prosecutor. Because the answers to the questions presented are so inextricably intertwined with the Criminal Code, and because our opinion on the statute has no legal impact and provides no protection to an attorney, we, therefore, decline to answer them. Notwithstanding that decision, however, we think it useful to outline what we think are the essential arguments on each side of the questions in order to alert attorneys to the potential consequences of taking custody of evidence of a crime.

On the one hand, the argument can be made that, based on the exception in Rule 3.6(l)(1) and the cited provisions of the criminal code, a lawyer is under an affirmative ethical duty to turn over evidence of a crime to appropriate law enforcement officials. Little need be added beyond the language of the criminal code and the conclusion of cases such as In Re Ryder. The Code prohibits concealment of evidence. 17‑A M.R.S.A. § 455.

It can also be argued that all that is protected by Bar Rule 3.6(l)(1) are “secrets” and “confidences.” As defined in Bar Rule 3.6(l)(5), secrets and confidences include “information” protected by an attorney‑client privilege or that a client has requested be held inviolate. Physical evidence (e.g., the fruits of a crime or the instrumentality of a crime) may not be considered “information” and may therefore not even be protected by the scope of Rule 3.6(l)(1).

In contrast to this plain language analysis, an argument can be made, albeit an argument more complex than a plain language reading of the statute and rules, that such disclosure of incriminating evidence from a client is not “required by law.” First, although the Maine criminal code prohibits concealment of evidence, 17 M.R.S.A. § 455(1)(A) and 753(1)(C), it could be argued that those statutes were not intended to apply when the effect would be to destroy the confidential attorney‑client relationship, unless an express intent to abrogate that principle clearly appears on the face of the statute. Criminal statutes should be strictly construed to avoid applying them more broadly than the legislature intended. Freedman, 10 Crim. Law Bull. 979 at 986. State v. Goyette, 407 A.2d 1104 (Me. 1979); State v. Millet, 392 A.2d 521 (Me. 1978); State v. Porter, 384 A.2d 429 (Me. 1978). There does not appear to be anything in the history of the criminal code to support the conclusion that the legislature intended the obstruction of justice laws to affect long‑standing confidential relationships. Almost all jurisdictions have some kind of statutory prohibition on the destruction or concealment of evidence. In almost all cases those statutes were drafted “without attention to their effect on the attorney‑client relationship and their application to an attorney seeking to protect the confidences of his/her client is often uncertain.” 32 Stan. L. Rev. 977 at 989 and n. 68. This could also be said to be true in Maine.

Second, an argument can be made that neither § 455 nor § 753 prohibits the mere possession by an attorney of physical evidence. Although there are no Maine cases interpreting either section, those statutes may not apply to mere possession by an attorney, but may require as an element of the crime a showing that the attorney intended to hide the objects from law enforcement officers. In other words it may be that the prosecution must prove that the attorney held the evidence with the intent of concealing it as opposed to using it for preparing the defense. Since mere possession by the lawyer cannot prevent a law enforcement agency from obtaining the evidence by a search warrant or subpoena, see e.g., In re January 1976 Grand Jury, supra, it logically follows that something more is required to prove “concealment.” In the case of Attorney Ryder, for example, that “something more” could have been the unusual and suspicious act of placing the evidence in a safe deposit box rather than holding it in his office like any other of his client’s papers. Such an act could lead to a conclusion that Ryder was doing more than just holding the evidence, he was attempting to hide it. Under the facts of that case, the Court could correctly have concluded that Ryder broke the law which prohibited the “concealment” of evidence.

Third, it is possible to argue that the Ryder decision, on which many of the subsequent cases and commentaries are based, is flawed. In one commentator’s words, it may be seen as an exercise in “begging the question.”

[T]o argue that the attorney’s actions [in concealing stolen money and a gun] is in violation of substantive law, such as “possession” statutes or the Model Penal Code provision, is to beg the question. It must first be determined whether the conduct is privileged as a matter of law, and, if so, whether it is within a well recognized exception to the criminal statute. 32 U.Chi.L. Rev. 211 at 221.

In other words, the first task is to determine if the possession of the money and gun was within the scope of the attorney‑client privilege. If it was, then the unlawful concealment statute in Ryder, or in Maine, would not apply to the conduct, absent a clear statement in the statute that it was intended to apply to such traditionally protected lawyer‑client communications.

[I]t is a well settled principle that an attorney may withhold his client’s documents, such as confidential written communications from the client to the attorney, and it is generally recognized that the attorney may withhold any pre‑existing document that the client could have refused to produce. Just as the attorney’s act in advising is generally not considered “aiding and abetting,” so too his possession of a document under the stated circumstances [i.e., Ryder] is not considered a violation of the law. Likewise, his possession of a chattel should not be considered illegal. Id. at 220‑221.

We recognize that this interpretation of the interplay between Bar Rules 3.6(l)(1), 3.7(b) and the Maine criminal concealment laws cited above is not free from doubt. Since Rule 3.6(l)(1) prohibits disclosures except where “required by law,” and since § 455 and 753 specifically prohibit concealment of physical evidence without apparent regard for whether such evidence is held by an attorney by virtue of the attorney‑client relationship, it can be argued that the obligation of § 455 and 753 clearly controls and mandates disclosure by the Attorney.

On the other hand, it seems doubtful that such a result was intended by the drafters of the Bar Rules or the statute. Although Rule 3.6(l)(1) excepts conduct required by “law or order of court,” one could read that phrase as encompassing only legally compelled disclosures such as search warrants, subpoenas, court orders or other judicially mandated disclosures and not the general requirements of the criminal code. Similarly, one could read the prohibition against concealing “information legally required to be revealed” in Rule 3.7(b) as applying only after the issuance of such subpoena, warrant or order.

In response to the argument that physical evidence is not “information” and is thus not protected by Bar Rule 3.6(l)(1), we believe a reasonable argument can be made that there is no essential difference between oral communication by a client to a lawyer which implicates a client in a crime and the transmission of physical evidence to a lawyer which has the same impact.

[I]t would be incongruous to permit the attorney to elicit oral information from his client but to prohibit him from soliciting information in the form of physical evidence. Id. at 220.

In either event, the disclosure would be damaging to the client and helpful to the prosecution and could transform the attorney into an agent of the law enforcement body. There is no Maine law obligating an attorney to disclose incriminating oral statements from a client. If a client confesses the commission of a crime to his lawyer, neither the Bar Rules nor the Criminal Code compel a lawyer to report that confession to the police. In fact, Bar Rule 3.6(c) specifically prohibits disclosure of fraudulent conduct by a client, even if the fraud occurs during the representation, if the attorney learns of the fraud through a privileged communication. It can be argued that § 455 and § 753 were not intended to create a different standard for physical evidence and that a lawyer is not required by Maine statute to voluntarily disclose physical evidence given to him by his client without a subpoena, search warrant or court order to do so.

Such position is consistent with the professional duty of a defense lawyer as characterized by Dean Monroe Freedman of Hofstra University School of Law.

Thus, the defense lawyer’s professional obligation may well be to advise the client to withhold the truth. As Justice Jackson said, “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.” Similarly, the defense lawyer is obligated to prevent the introduction of evidence that may be wholly reliable, such as a murder weapon seized in violation of the Fourth Amendment, or a truthful but involuntary confession. Justice White has observed that although law enforcement officials must be dedicated to using only truthful evidence, “defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. . . . We . . . insist that he defend his client whether he is innocent or guilty.”

Such conduct by defense counsel does not constitute obstruction of justice. On the contrary, it is “part of the duty imposed on the most honorable defense counsel,” from whom “we countenance or require conduct which in many instances has little, if any, relation to the search for truth.” The same observation has been made by Justice Harlan, who noted that “in fulfilling his professional responsibilities,” the lawyer “of necessity may become an obstacle to truth finding.” Chief Justice Warren too, has recognized that when the criminal defense attorney successfully obstructs efforts by the government to elicit truthful evidence in ways that violate constitutional rights, the attorney is “merely exercising . . . good professional judgment,” and “carrying out what he is sworn to do under his oath—to protect to the extent of his ability the rights of his client.” Chief Justice Warren concluded, “In fulfilling this responsibility the attorney plays a vital role in the administration of criminal justice under our Constitution.” Freedman, 10 Crim. Law Bulletin 979 at 982‑983. (citations omitted).

This view of the defense lawyer’s role obliges him to hold in confidence both oral and physical evidence conveyed to him by the client. Since either an oral statement or physical evidence can provide a “link in the chain of evidence” to convict the defendant client, there is no functional difference between disclosing one but not the other. Moreover, this analysis of the duty of the lawyer is consistent with a policy of encouraging complete and open communication between an attorney and client.

Obviously, however, the client cannot be expected to reveal to the lawyer all information that is potentially relevant, including that which may well be incriminating unless the client can be assured that the lawyer will maintain all such information in the strictest confidence. “The purposes and necessities of the relation between a client and his attorney” require “the fullest and freest disclosures” of the client’s “objects, motives and acts.” If the attorney were permitted to reveal such disclosures, it would be “not only a gross violation of a sacred trust upon his part,” but it would “utterly destroy and prevent the usefulness and benefits to be derived from professional assistance.” Destroy that confidence, and “a man would not venture to consult any skillful person, or would only dare to tell his counselor half his case.” The result would be impairment of the “perfect freedom of consultation by client with attorney” which is “essential to the administration of justice.” Id. at 985. (citations omitted).

Having set forth the countervailing interpretations, one of which is a simple argument arising from the plain language of the rule and criminal code and the other of which is considerably more complex and less obvious from the law, we are unable to provide an answer as to what the ethical obligations of an attorney are when in possession of incriminating evidence.[7] We do think it clear that, precisely because there is such uncertainty, lawyers are well advised not to take possession of evidence of a crime. The prudent course for the lawyer to follow is to provide representation to a client without taking custody of physical evidence which the lawyer believes may be evidence of the commission of a crime, regardless of the purpose for which the attorney might hold the evidence. Until such time as the Courts definitely construe 455 or 753, any other conduct exposes an attorney to serious risks of criminal prosecution and subsequent ethical sanctions.


Footnotes

[1] Comment, Search Of The Lawyers Office‑Court Sanctioned Threat to Confidential Communications, 32 Alabama L. Rev. 92, 93 n. 13 (1980); Radiant Burners, Inc. v. American Gas Association, 320 F.2d 314, 318 (7th Cir. 1963).

[2] 17‑A M.R.S.A. § 455 provides in part:

Ҥ 455. Falsifying Physical Evidence.

  1. A person is guilty of falsifying physical evidence if, believing that an official proceeding as defined in section 451, subsection 5, paragraph A, or an official criminal investigation, is pending or will be instituted, he:

A. Alters, destroys, conceals or removes anything relevant to such proceeding or investigation with intent to impair its verity, authenticity or availability in such proceeding or investigation; or . . .”

17‑A M.R.S.A. § 753 provides in part:

Ҥ 753. Hindering Apprehension or Prosecution.

  1. A person is guilty of hindering apprehension or prosecution if, with the intent to hinder, prevent or delay the discovery, apprehension, prosecution, conviction or punishment of another person for the commission of a crime, he:

c. Conceals, alters or destroys any physical evidence that might aid in the discovery, apprehension or conviction of such person; or . . .”

[3] For a general, if inconclusive, discussion of this subject see Annotated Code of Professional Responsibility, pp. 173‑178 and 312‑314 (1979) discussion D.R. 4‑101(c)(2) and D.R. 7‑102(A)(3) of the ABA Model Code of Professional Responsibility, on which the current Maine Bar Rules were largely modelled, and Lawyer’s Manual on Professional Conduct, § 55 and 1201, briefly comparing the former ABA Model Code with the recently adopted ABA Model Rules of Professional Conduct.

[4] Comment, The Right of A Criminal Defense Attorney to Withhold Physical Evidence Received From His Client, 32 U.Chi.L.Rev. 211 (1970); Comment, Legal Ethics and the Destruction of Physical Evidence, 88 Yale L.J. 1665 (1979); Comment, Ethics Law and Loyalty: The Attorney’s Duty to Turn Over Incriminating Physical Evidence, 32 Stanford L.Rev. 977 (1980); Freedman, Where The Bodies Are Buried: The Adversary System And the Obligation of Confidentiality, 10 Crim.Law Bul. 979 (‑ ‑); Comment, Professional Responsibility and In Re Ryder: Can An Attorney Serve Two Masters?, 54 Va. L. Rev. 124 (1968); Comment, An Attorney in Possession of Evidence Incriminating His Client, 25 Wash. & Lee L.Rev. 133 (1968); Comment, Fruits of the Attorney‑Client Privilege: Incriminating Evidence and Conflicting Duties, 3 Duq.L.Rev. 239 (1965); Comment, Search of the Lawyer’s Office‑Court Sanctioned Threat to Confidential Communications, 32 Alabama L.Rev. 92(1980); Comment, Legal Ethics: Confidentiality And The Case of Robert Garrow’s Lawyers, 25 Buff. L.Rev. 211 (1975); and Recent Developments, Attorney‑Client Privilege‑Contempt: The Dilemma in Non‑Disclosure of Possibly Privileged Information, 45 Wash.L.Rev. 181 (1970).

[5] E.g., 25 Wash. & Lee L.Rev. 131 at 136, 140‑141 (It is inconsistent to require a defense attorney to assert his client’s innocence and not disclose orally incriminating evidence, but oblige him to turn over incriminating physical evidence); 3 Duq.L.Rev. 239 at 247 (Court opinions provide little insight into the problem and lack ethical and legal supporting authority).

[6] E.g., 3 Duq.L.Rev. 239 at 250 (“Regardless of the situation, the monstrous conflict still looms overhead until some definitive statement or guidelines are promulgated. Until then, each lawyer must resolve the problem for himself always remembering his obligations as counsel for the defendant.”); 54 Va.L.Rev. 145 at 193 (If the attorney is unsure, he can consult with the Court although that may itself violate the client’s confidences); 25 Wash. & Lee L.Rev. 133 at 140‑141 (Ryder raises more questions than it answers. Problems will remain one of the most difficult to decide, until the Courts supply a solution.)

[7] The fact that the argument against mandatory disclosure is more lengthy than that in favor of disclosure should not be read as any indication that we favor one interpretation over the other, but rather simply as a reflection of the fact that one line of analysis is more complex than the other.


Enduring Ethics Opinion