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Prof Responsibility • Fairness
PR#068
Legal Definition
Under Rule 3.4, a lawyer who receives incriminating evidence from a client must handle it carefully to avoid obstructing justice. The lawyer must not alter or destroy the evidence and must advise the client of its legal implications. The lawyer should not turn the evidence over to authorities without the client's consent, as doing so could violate the duty of confidentiality.
Plain English Explanation
The duty of fair representation requires lawyers to handle incriminating evidence from clients carefully to avoid obstructing justice. If a client gives their lawyer evidence that could incriminate them, the lawyer must walk a fine line between protecting the client and upholding their ethical duties.
First and foremost, the lawyer must not alter, destroy, or conceal the evidence. Doing so could constitute obstruction of justice. The lawyer also can't advise the client to destroy or hide the evidence. Instead, the lawyer should explain to the client the legal implications of possessing the incriminating evidence.
However, the lawyer generally should not turn over the evidence to authorities without the client's consent. Doing so could violate the duty of confidentiality that lawyers owe their clients. The attorney-client privilege protects most communications between lawyers and clients, including discussions about evidence.
So what should a lawyer do with incriminating evidence? The best approach is usually to advise the client to turn it over to law enforcement or the court. If the client refuses, the lawyer may need to withdraw from representation if keeping the evidence would require them to violate ethical rules. In some cases, a lawyer may be able to turn over evidence anonymously without revealing the client as the source.
First and foremost, the lawyer must not alter, destroy, or conceal the evidence. Doing so could constitute obstruction of justice. The lawyer also can't advise the client to destroy or hide the evidence. Instead, the lawyer should explain to the client the legal implications of possessing the incriminating evidence.
However, the lawyer generally should not turn over the evidence to authorities without the client's consent. Doing so could violate the duty of confidentiality that lawyers owe their clients. The attorney-client privilege protects most communications between lawyers and clients, including discussions about evidence.
So what should a lawyer do with incriminating evidence? The best approach is usually to advise the client to turn it over to law enforcement or the court. If the client refuses, the lawyer may need to withdraw from representation if keeping the evidence would require them to violate ethical rules. In some cases, a lawyer may be able to turn over evidence anonymously without revealing the client as the source.
Hypothetical
Hypo 1: Sam is arrested for drug possession. He tells his lawyer Bob that he has some additional drugs hidden in his apartment that the police didn't find. Sam asks Bob to go retrieve the drugs and destroy them before the police can find them. Result: Bob must refuse Sam's request. Retrieving and destroying the drugs would constitute obstruction of justice and violate Bob's ethical duties. Bob should advise Sam of the legal implications of possessing the drugs and counsel him not to destroy evidence. Bob cannot assist Sam in concealing or destroying the drugs.
Hypo 2: During a meeting with his client Sam, who is charged with assault, lawyer Bob notices bloody clothes in Sam's bag that match the description of what the attacker was wearing. Sam doesn't mention the clothes. Result: Bob should not seize or turn over the clothes without Sam's consent, as that could violate attorney-client confidentiality. However, Bob should discuss the clothes with Sam, explain their potential as evidence, and advise Sam of the legal implications. Bob may need to withdraw from representation if Sam insists on concealing the clothes.
Hypo 3: Sam is on trial for murder. He confesses to his lawyer Bob that he committed the crime and gives Bob a USB drive containing video footage of the murder. Result: Bob cannot destroy or conceal the USB drive. He should advise Sam to turn it over to the authorities. If Sam refuses, Bob likely needs to withdraw from representation, as he cannot put on a defense asserting Sam's innocence knowing it to be false. However, Bob still cannot disclose Sam's confession or turn over the video without Sam's consent.
Hypo 2: During a meeting with his client Sam, who is charged with assault, lawyer Bob notices bloody clothes in Sam's bag that match the description of what the attacker was wearing. Sam doesn't mention the clothes. Result: Bob should not seize or turn over the clothes without Sam's consent, as that could violate attorney-client confidentiality. However, Bob should discuss the clothes with Sam, explain their potential as evidence, and advise Sam of the legal implications. Bob may need to withdraw from representation if Sam insists on concealing the clothes.
Hypo 3: Sam is on trial for murder. He confesses to his lawyer Bob that he committed the crime and gives Bob a USB drive containing video footage of the murder. Result: Bob cannot destroy or conceal the USB drive. He should advise Sam to turn it over to the authorities. If Sam refuses, Bob likely needs to withdraw from representation, as he cannot put on a defense asserting Sam's innocence knowing it to be false. However, Bob still cannot disclose Sam's confession or turn over the video without Sam's consent.
Visual Aids
Related Concepts
In addition to the ABA rules under the Duty of Fairness to Opposing Party and Counsel, what additional rule does California impose?
Under the Duty of Fair Representation, when may an attorney request that a person other than their client refrain from voluntarily providing information to another party?
What is the Duty of Fairness to Opposing Party and Counsel?
What is the Duty of Fair Representation?
