Ethics Committee Opinions
| Publication year | 1982 |
| Pages | 2717 |
| Citation | Vol. 11 No. 10 Pg. 2717 |
1982, October, Pg. 2717. Ethics Committee Opinions
A lawyer has an affirmative duty to surrender incriminating physical evidence in his possession. Upon surrender of the evidence, the lawyer must not reveal the identity of the client and confidential communications of the client. When a lawyer observes incriminating evidence as a result of his representation of the client and does not alter or disturb the evidence, he must not disclose these observations to authorities.
This opinion is designed to set out ethical guidelines for lawyers when faced with situations linking their clients to incriminating physical evidence. This opinion is limited to these specific patterns:
1. The client charged with murder under felony murder theory, where the felony is aggravated robbery, shows his lawyer the gun used in the crime and asks him to hold it for him.
2. The wife of a client charged with felony murder brings a gun to the lawyer's office and tells the lawyer that her husband, the client, told her to ask the lawyer to hold the gun for him.
3. The best friend of a client charged with felony murder brings a gun to the lawyer stating that before the client was jailed, the client left the gun with him, stating he had just used it in a stick-up. The friend says he feels guilty holding the gun and gives it to the lawyer.
4. The robbery for which the client is being investigated, felony murder, involved the taking of 50 unmarked $100 bills. The client retains the lawyer with 25 unmarked $100 bills. The lawyer, aware of the denominations taken in the robbery, asks his client whether the retainer came from the robbery. The client grins and says, "What do you think?"
5. The client, a suspect in a robbery-homicide, before his surrender takes the lawyer to the area where the getaway car and the body of the victim are located.
6. In the situation described in paragraph 5, the lawyer directs his investigator to scrape a sample of material from the deceased's fingernails in order to determine whether the sample contains the defendant's flesh and could possibly be a fact supportive of the defense of self-defense.
These fact patterns illustrate the conflict between the lawyer's duty of loyalty to the client and his duty of disclosure to the authorities as an officer of the court. The duty of client loyalty in this context emanates from a mixture of ethical duties requiring the lawyer to preserve his client's confidences and secrets, to represent his client zealously in the statutory attorney-client privilege. C.R.S. 1973, § 13-90-107(b). The purpose of this privilege is "to secure the orderly administration of justice by insuring candid and open discussions by the client to the attorney without fear of disclosure." Losavio v. District Court, 188 Colo. 127, 533 P.2d 32, 34(1975).
The Code of Professional Responsibility ("Code") requires the lawyer not to "reveal a confidence or secret of his client," Disciplinary Rule (DR) 4-101 (B) (1) and not to "[u]se a confidence or secret of his client to the disadvantage of the client," DR-4-101(B)(2). "'Confidence' refers to information protected by the attorney-client privilege under applicable law, and 'secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or...
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