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Prof Responsibility • Candor
PR#079
Legal Definition
A lawyer cannot suppress evidence that they or their client has a legal obligation to reveal or produce, regardless of the duty of loyalty. Also, they must not obstruct access to or tamper with the fruits or instrumentalities of a crime. An attorney who comes into possession of such instrumentalities must turn them over to the authorities, but may not breach their duty of confidentiality by revealing the source or statements made in conjunction. Further, a lawyer may retain the evidence for a reasonable time to prepare their client's case, so long as they do not alter the evidence in any way.
Plain English Explanation
Lawyers can't play hide-and-seek with important evidence just to help their clients win. That would be cheating the system.
This duty also extends to the "fruits or instrumentalities" of a crime. For example, if a client hands over the murder weapon, the lawyer can't just stash it away. They have to turn it over to the authorities, but without revealing where it came from or what the client said about it. Client confidentiality is still sacred.
Interestingly, lawyers are allowed to hang onto evidence for a "reasonable time" to prepare their client's case. But no funny business - they can't alter it in any way. So they can study that bloody glove, but they can't bleach out the stains.
This rule basically says: "Lawyers, you're officers of the court first, hired guns second. Help your clients vigorously, but don't hide the ball from the justice system."
This duty also extends to the "fruits or instrumentalities" of a crime. For example, if a client hands over the murder weapon, the lawyer can't just stash it away. They have to turn it over to the authorities, but without revealing where it came from or what the client said about it. Client confidentiality is still sacred.
Interestingly, lawyers are allowed to hang onto evidence for a "reasonable time" to prepare their client's case. But no funny business - they can't alter it in any way. So they can study that bloody glove, but they can't bleach out the stains.
This rule basically says: "Lawyers, you're officers of the court first, hired guns second. Help your clients vigorously, but don't hide the ball from the justice system."
Hypothetical
Hypo 1: Sam is being investigated for tax fraud. He gives Bob, his attorney, several boxes of financial records, saying "These prove I'm innocent, but there are a few bad documents in there. Can you just lose those for me?" Result: Bob cannot selectively remove or destroy any of the documents, even at Sam's request. If the records are subpoenaed or otherwise legally required to be produced, Bob must turn over all of them intact. However, Bob can review the records and use the information to prepare Sam's defense.
Hypo 2: During discovery in a civil lawsuit, opposing counsel requests certain emails from Sam's company. Bob knows these emails exist and are responsive to the request, but they are very damaging to Sam's case. Sam tells Bob, "Let's just pretend those emails don't exist. No one will ever know!" Result: Bob cannot conceal the existence of these emails or fail to produce them. Even though it may harm Sam's case, Bob has a duty to ensure all responsive documents are produced during discovery. Bob should explain to Sam that concealing evidence is not only unethical but could lead to severe sanctions if discovered.
Hypo 3: Bob is representing Sam in a products liability case. An internal company memo surfaces that shows Sam's company knew about the product defect but did nothing. Sam asks Bob to claim attorney-client privilege over the memo to prevent its disclosure. Result: If the memo is actually privileged, Bob can assert the privilege. However, if it's not legitimately privileged, Bob cannot falsely claim it is just to avoid producing damaging evidence. Bob must make a good faith determination about privilege and produce the document if it's not truly covered.
Hypo 4: Bob is defending Sam in a drunk driving case. Sam confesses to Bob that he threw his empty liquor bottles in a dumpster right after the accident. Result: Bob has no duty to go retrieve the bottles or inform the police about them. While the bottles may be relevant evidence, they are not in Bob's or Sam's possession, and Bob only learned about them through a confidential client communication. As long as Bob does not actively hide or destroy evidence, he has no affirmative duty to collect or produce evidence harmful to his client's case.
Hypo 2: During discovery in a civil lawsuit, opposing counsel requests certain emails from Sam's company. Bob knows these emails exist and are responsive to the request, but they are very damaging to Sam's case. Sam tells Bob, "Let's just pretend those emails don't exist. No one will ever know!" Result: Bob cannot conceal the existence of these emails or fail to produce them. Even though it may harm Sam's case, Bob has a duty to ensure all responsive documents are produced during discovery. Bob should explain to Sam that concealing evidence is not only unethical but could lead to severe sanctions if discovered.
Hypo 3: Bob is representing Sam in a products liability case. An internal company memo surfaces that shows Sam's company knew about the product defect but did nothing. Sam asks Bob to claim attorney-client privilege over the memo to prevent its disclosure. Result: If the memo is actually privileged, Bob can assert the privilege. However, if it's not legitimately privileged, Bob cannot falsely claim it is just to avoid producing damaging evidence. Bob must make a good faith determination about privilege and produce the document if it's not truly covered.
Hypo 4: Bob is defending Sam in a drunk driving case. Sam confesses to Bob that he threw his empty liquor bottles in a dumpster right after the accident. Result: Bob has no duty to go retrieve the bottles or inform the police about them. While the bottles may be relevant evidence, they are not in Bob's or Sam's possession, and Bob only learned about them through a confidential client communication. As long as Bob does not actively hide or destroy evidence, he has no affirmative duty to collect or produce evidence harmful to his client's case.
Visual Aids
Related Concepts
According to the Duty Not to Contact Represented Parties, which individuals within an organization must an attorney obtain permission from the organization's lawyer before contacting directly?
Can lawyers compensate witnesses?
How do the rules in California differ regarding how a lawyer balances their Duty of Candor with their criminal defendant client's right to testify if they believe the client intends to lie?
How must a lawyer balance their Duty of Candor with their criminal defendant client's right to testify if they believe they intend to lie?
In California, can an attorney disclose information to set the record straight if one of their witnesses intends to lie?
What are the 9 Affirmative Duties of a Public Prosecutor?
What is an ex parte proceeding, and how does it affect what a lawyer must disclose?
What is the Duty Not to Contact Represented Parties?
What is the Duty of Candor?
What must a lawyer do if they know that their witness intends to lie in their testimony?
