Incriminating Evidence: What to Do With a Hot Potato
| Jurisdiction | Colorado,United States |
| Citation | Vol. 11 No. 4 Pg. 880 |
| Pages | 880 |
| Publication year | 1982 |
1982, April, Pg. 880. Incriminating Evidence: What to do With a Hot Potato
What are the ethical duties of a lawyer when his client, charged with robbery, gives him a gun and asks him to hold it for him? Does the lawyer's duty change if the gun is given to him by a friend without the client's knowledge? If the lawyer accepts the gun and turns it over to the police, how can he do this without violating the attorney-client privilege and without incriminating his client? Should the lawyer refuse to accept the gun? If he does, what ethically permissible advice must he give, if any, to the person possessing the gun? May the lawyer accept a retainer with money he suspects was taken in a robbery, even if the client denies it? What are the lawyer's ethical responsibilities if the client, under investigation for robbery, takes the lawyer to a hidden spot where the gun has been left and asks the lawyer to take pictures of the gun? Does it make any ethical difference if the lawyer takes the gun for ballistic testing necessary for proving a defense theory?
These hypothetical questions represent a small sample of fact situations in which the lawyer must confront irreconcilable ethical duties: loyalty to the client and disclosure as an officer of the court to aid in the administration of justice. The duty of client loyalty is an esteemed hallmark of the legal profession which evolved from a combination of the following different doctrines: ethical mandates requiring zealous representation of clients; preservation of client confidences and the prohibition of using information harmful to a client; the privilege against self-incrim-ination; the accused's right to effective assistance of counsel; and the attorney-client privilege. The trend of recent decisions has been to limit the duty of client loyalty by requiring the lawyer to turn over to authorities incriminating physical evidence, including contraband, which is in his possession.
To determine when the duty to preserve a client's confidences must yield to the duty of disclosure, it is necessary to review the competing ethical duties and to discuss the present state of the law concerning the protections afforded clients by the attorney-client privilege and the privilege against self-incrimination. After discussion of these areas, this article suggests guidelines designed to assist lawyers in acting ethically when confronted with their client's incriminating evidence in situations similar to the hypothetical questions set out above. Any lawyer involved with a criminal ethics problem should consult Harold A. Haddon's superb Criminal Ethics Outline published by the Colorado Trial Lawyer's Association.
The Code of Professional Responsibility, written by the American Bar Association, has been adopted by the Colorado Supreme Court as grounds for the discipline of lawyers who practice in Colorado.(fn1)
The Code consists of Canons, which are generalized standards of professional conduct (e.g., Canon 4: "A lawyer should preserve the confidences and secrets of a client"), and Disciplinary Rules ("DR."), which state the minimum level of conduct required of the lawyer. Lawyer conduct falling below this minimum is subject to disciplinary action (e.g., DR 1-102(A)(1): "A lawyer shall not violate a Disciplinary Rule"). The Code also includes Ethical Considerations ("EC") which are aspirational and represent principles to guide lawyers in specific situations.
The duty of client loyalty is articulated throughout the Code.(fn2) Canon 7 states, "A lawyer should represent a client zealously within the bounds of the law." Canon 4 directs, "A lawyer should preserve the confidences and secrets of a client." A "confidence" is defined as "information protected by the attorney-client privilege" and "secret" means "information gained in the professional relationship," the disclosure of which would be "embarrassing" or "detrimental" to the client [DR 4-101(A)]. A lawyer may not "reveal a confidence or secret of his client," nor may he "use a confidence or secret of his client to the disadvantage of his client" [DR 4-101(B)(1) & (2)].
EC 4-4 states that the lawyer's duty to preserve his client's confidences is a broader principle than the statutory attorney-client privilege because the ethical precept exists without regard to the source of the information. The statutory attorney-client privilege protects the client only from the lawyer's testimony concerning communications held with the client. In addition, EC 4-5 directs the lawyer not to use information obtained from any source to the disadvantage of the client without client consent.
The lawyer may not prejudice his client during the course of the professional relationship, except when he is required to reveal "fraud" perpetrated by the client upon a "tribunal," provided that the fraudulent conduct does not constitute privileged information under the attorney-client privilege [DR 7-101(A)(3) and DR 7-102(B)(1)]. American Bar Association ethics opinions have strengthened the duty of client loyalty when it conflicts with the duty of disclosure by interpreting this disciplinary rule to require that the lawyer disclose client "fraud" to the court only in cases involving affirmative misrepresentations of the facts and that the duty of loyalty to the client protects the client from the disclosure of harmful material facts. For example, one opinion states that an attorney in practice before the IRS is under no duty to disclose weaknesses of a client's case;(fn3) another states that an attorney has no duty to disclose the client's admission of perjury in a divorce proceeding and that the defense attorney has no duty to advise the court that the court's information concerning the client's prior criminal record is in error.(fn4)
The competing duty of disclosure is also stated in the Code. Lawyers may disclose clients' confidences and secrets "when permitted under Disciplinary Rules or when required by law or court order" and when the confidences or secrets indicate "the intention of his client to commit a crime and the information necessary to prevent the crime" [DR 4-101(C)(2) and (3)].
The Code also commands that a lawyer not "conceal or knowingly fail to disclose that which he is required by law to reveal" [DR 7-102(A)(3)]. He may not "assist his client in conduct that the lawyer knows to be illegal or fraudulent." Also, the lawyer is forbidden to "knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule [DR 7-102(A)(7) and (8)]. It is misconduct for the lawyer to "engage in conduct involving dishonesty, fraud, deceit and misrepresentation" and to "engage in conduct that is prejudicial to the administration of justice" [DR 1-102(4)
and (5)]. EC 7-27 requires attorneys "not (to) suppress evidence that he or his client has a legal obligation to reveal or produce."
Although these various standards of ethical conduct mentioned seem appropriate in the abstract, they offer little or no guidance to the practitioner confronted with the dilemma of either holding incriminating evidence for his client, thus facing possible sanctions himself, or turning over evidence to the police, which will surely put his client at some disadvantage regardless of how ingenious he may be in arranging for an anonymous surrender.
The Code appears to be deficient in two respects: (1) it fails to articulate an underlying ethical philosophy which helps to resolve the practitioner's dilemma of prioritizing the duty of client loyalty and the duty to disclose in situations where they require contradictory conduct of the lawyer; and (2) it fails to set forth standards other than the obvious (e.g., when the client intends to commit a crime) which state when the law requires disclosure of a client secret or confidence.(fn5)
The practitioner faced with competing duties must choose correctly. Good-faith mistakes are no defense to attorney discipline. In In re Ryder,(fn6) the attorney for a robbery suspect consulted with two prominent members of the Bar before deciding to retain possession of a gun and currency suspected of being involved in the robbery. Intending to litigate the right of the prosecution to seize these items in...
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