Client Confidentiality · 6-12% of the exam
7.3.2Fruits and instrumentalities of crime — physical evidence from a client (Rule 3.4)
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- Physical evidence received from a client — Rule 3.4(a) and the majority approach
When the evidence door slams shut, be on the outside of it: don't let the client's physical-evidence problem become the lawyer's problem. Privilege protects communications, not objects. Under the majority approach, a lawyer receiving physical evidence may retain it temporarily to gather information, then must return it to the client or turn it over to authorities, never retaining it indefinitely or concealing it.
Picture a big green door between the lawyer and the client's evidence: she may look through it to see what the object shows, but she may not carry the object through and hide it for him. Taking possession starts a clock rather than ending a problem: the object has to move on, back to the client if he will take it and the law allows it, or to the authorities if he will not. Handling it also has a price: where a lawyer or her investigator removes the item, courts have allowed the prosecution to prove where it originally sat.
Why
A client who could launder an object through the lawyer's desk drawer would turn a protection built for candor into a hiding place, and the lawyer into a storage locker for the case against her own client. These obligations keep the object moving while still letting the lawyer learn what it shows.
Plain English
Rule 3.4(a) itself bars unlawfully obstructing another party's access to evidence and unlawfully altering, destroying or concealing it, or counseling or assisting another to do so; the handling rules below are the majority approach, not Model Rule text, and they vary by jurisdiction.
Under that approach a lawyer who receives physical evidence from a client may hold it long enough to gather information useful to the representation. Then the lawyer must return it to the client if the client will take it, or turn it over to the proper authorities if the client will not, and need not reveal the source in doing so. The lawyer may not keep it indefinitely, hide it, or alter it, and may not advise the client to destroy or conceal it.
Rule
Physical evidence received from a client — Rule 3.4(a) and the majority approach
Rule 3.4(a) itself bars unlawfully obstructing another party's access to evidence and unlawfully altering, destroying or concealing it, or counseling or assisting another to do so, and Comment [2] speaks only of what applicable law may permit and may require. The handling rules below are the majority approach drawn from case law, not ABA black letter, and they split by jurisdiction. Under that approach a lawyer who receives physical evidence from a client — a weapon, stolen property, or incriminating documents not created for the attorney-client relationship — has these obligations. Four points below, and only the fourth is a prohibition:
May retain it long enough to gather information useful to the representation.
- Must then
- return it to the client if the client will take it, OR
- turn it over to proper authorities if the client will not.
Need not reveal the source when turning the item over to authorities.
May not keep the evidence indefinitely, hide it, or alter it.
Advice prohibition. A lawyer can't advise the client to destroy or conceal evidence. Under the majority approach, a lawyer may advise returning the evidence to where it was originally found, if that action is lawful and does not constitute concealment in a new location.
Intent doesn't matter — locking evidence away is still indefinite retention, and the duty to produce the object is separate from any duty to identify its source.
Questions · 1
Q 01ch07-e10
Question 1 of 1 · Rule 3.4(a)
Client, charged with arson at a warehouse, handed Attorney a scorched fuel canister taken from the loading dock before the fire investigators arrived. Attorney photographed the canister, had it weighed, and had the residue inside it identified by a laboratory, all of which took about three weeks. Attorney then put the canister in a locked drawer and left it there. Fourteen months later the canister is still in the drawer. Attorney has neither offered it back to Client nor produced it to the authorities, reasoning that the prosecution can build its own case. Is Attorney subject to discipline?
Keys 1 to 4 choose.