What must a criminal defense lawyer do after taking possession of a key piece of physical evidence the prosecution is looking for?

Plain-English summary

Appointed to defend a homicide case, a lawyer sent an investigator to interview the defendant's live-in girlfriend. The investigator learned that she had found a wristwatch with a turquoise band in the defendant's suit jacket, an item significant to the prosecution because she had earlier told police the victim had such a watchband hours before the murder. The girlfriend did not want to turn the watch over to police, and the investigator called the lawyer to decide what to do.

The opinion treated this as a mixed question of law and ethics it would resolve on the merits because the ethical considerations weighed so heavily. It noted that, under Arizona statutes, concealing physical evidence to impair its availability and tampering with evidence are crimes (A.R.S. sections 13-2510 and 13-2809). It recognized that the ethical duty of confidentiality under the Code (EC 4-4, DR 4-101) is broader than the evidentiary attorney-client privilege, but concluded that a lawyer who takes possession of important physical evidence must disclose it and may be compelled to reveal its source and whereabouts.

The opinion added that Arizona's new Rules of Professional Conduct, effective February 1, 1985, governed the inquiry as well: although ER 1.6 imposed no obligation to reveal the source of the evidence, the lawyer remained subject to the requirement to testify if called as a witness, and under ER 3.4 could not unlawfully obstruct or conceal evidence or assist another in doing so. Because the lawyer would likely be a necessary witness, and given the loss of credibility and the defendant's Sixth Amendment right to effective assistance of counsel, the opinion concluded all doubts should be resolved in favor of withdrawal under the lawyer-as-witness and withdrawal rules (ER 3.7, ER 1.16).

Currency note

This opinion was issued in 1985, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a defense lawyer keep a piece of physical evidence the client's associate found?

A: No. The opinion concluded that a lawyer who takes possession of an important item of physical evidence must produce the incriminating evidence and may be compelled to reveal its source and whereabouts.

Q: Does confidentiality protect the lawyer from disclosing the evidence?

A: The opinion concluded it does not as to the physical evidence itself. While the ethical duty of confidentiality is broader than the privilege, the duty not to conceal or obstruct evidence required production.

Q: Why should the lawyer withdraw?

A: Because the lawyer would likely be called as a witness about the evidence. The opinion concluded that, given the lawyer-as-witness problem, the credibility loss, and the right to effective counsel, doubts should be resolved in favor of withdrawal.

Background and rules framework

The opinion was decided at the transition between the Arizona Code of Professional Responsibility (DR 4-101 on confidentiality, DR 5-102 on the lawyer as witness, EC 4-4) and the new Rules of Professional Conduct effective February 1, 1985 (ER 1.6 confidentiality, ER 3.4 fairness to opposing party and counsel, ER 3.7 lawyer as witness, ER 1.16 withdrawal). It also rested on Arizona's evidence-tampering and concealment statutes.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / AZ ER 1.6 (confidentiality of information)
• MR 3.4 / AZ ER 3.4 (fairness; not obstructing or concealing evidence)
• MR 3.7 / AZ ER 3.7 (lawyer as witness)
• MR 1.16 / AZ ER 1.16 (withdrawal)
• AZ DR 4-101, DR 5-102 (Code of Professional Responsibility)

Statutes:

• A.R.S. section 13-2510 (suppressing physical evidence)
• A.R.S. section 13-2809 (tampering with physical evidence)

See also

• AZ Ethics Op. 05-05: Candor to a Tribunal and Client Perjury
• AZ Ethics Op. 05-04: Confidentiality of Electronic Files
• AZ Ethics Op. 99-03: Communication With Witnesses

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=530

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

3/1985

Criminal defense attorney, taking possession of important item of physical evidence must not only disclose the incriminating evidence, but may be compelled to reveal its source and whereabouts, and may be called as a witness.

FACTS

After having been appointed to represent the defendant in a homicide case, the inquiring attorney sent an investigator to interview his client's live-in girlfriend. During his discussion with the girl friend, the investigator learned that she had found a wristwatch with a turquoise watchband in the defendant's suit jacket. The item has significance to the state because the girl friend had earlier told police that the victim had had such a watchband in his possession only hours before he was murdered.

Since the girl friend did not want to turn the watch over to the police, the investigator phoned the inquiring attorney from the girlfriend's house in order to determine what he should do. Because the attorney wanted to determine whether the watch was the same one that the girl friend had described to the police, and due to his concern that the girl friend might destroy or conceal this potentially vital piece of evidence, the inquiring attorney had the investigator bring the watch to him. The watch remains in his possession. Subsequently, the client informed the police that he had taken a watch from the victim, but the police do not know the whereabouts of the watch.

QUESTIONS

1. Does this committee have jurisdiction to render an opinion in this matter?

2. Must the attorney turn the watch over to the state?

3. If disclosure is required, can the attorney withhold information about the source of the wristwatch?

4. Must the attorney withdraw from further representation in this case?

5. If he must withdraw, how should he state his reasons to the court and to his client?

6. Must the attorney be a witness in this case?

CODE PROVISIONS INVOLVED

Canon 1. A lawyer should assist in maintaining the integrity and competence of the legal profession.

DR 1-102. Misconduct.

(A) A lawyer shall not:

(5) Engage in conduct that is prejudicial to the administration of justice.

Canon 2. A lawyer should assist the legal profession in fulfilling its duty to make legal counsel available.

EC 2-32. A decision by a lawyer to withdraw should be made only on the basis of compelling circumstances, and in a matter pending before a tribunal he must comply with the rules of the tribunal regarding withdrawal. A lawyer should not withdraw without

considering carefully and endeavoring to minimize the possible adverse effect on the rights of his client and the possibility of prejudice to his client as a result of withdrawal. Even when he justifiably withdraws, a lawyer should protect the welfare of his client by giving due notice of his withdrawal, suggesting employment of other counsel, delivering to the client all papers and property to which the client is entitled, cooperating with counsel subsequently employed, and otherwise endeavoring to minimize the possibility of harm. Further, he should refund to the client any compensation not earned during the employment.

Canon 4. A lawyer should preserve the confidences and secrets of a client.

DR 4-101. Preservation of Confidences and Secrets of a Client.

(A) "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 the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

(B) Except as permitted under DR 4-101(C) a lawyer shall not knowingly:

(1) Reveal a confidence or secret of his client.

(2) Use a confidence or secret of his client to the disadvantage of the client.

(C) A lawyer may reveal:

(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.

(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.

(3) The intention of his client to commit a crime and the information necessary to prevent the crime.

(4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.

DR 5-102. Withdrawal as Counsel when the Lawyer Becomes a Witness.

(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.

Canon 7. A lawyer should represent a client zealously within the bounds of the law.

EC 7-27. Because it interferes with the proper administration of justice, a lawyer should not suppress evidence that he or his client has a legal obligation to reveal or produce. In like manner, a lawyer should not advise or cause a person to secrete himself or to leave the jurisdiction of a tribunal for the purpose of making him unavailable as a witness therein.

DR 7-101. Representing a Client Zealously.

(A) A lawyer shall not intentionally:

(3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B).

(B) In his representation of a client, a lawyer may:

(1) Where permissible, exercise his professional judgment to waive or fail to assert a right or position of his client.

(2) Refuse to aid or participate in conduct that he believes to be unlawful, even though there is some support for an argument that the conduct is legal.

DR 7-102. Representing a Client Within the Bounds of the Law.

(A) In his representation of a client, a lawyer shall not:

(3) Conceal or knowingly fail to disclose that which he is required by law to reveal.

(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.

(8) Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.

DR 7-109. Contact with Witnesses.

(A) A lawyer shall not suppress any evidence that he or his client has a legal obligation to reveal or produce.

OPINION

JURISDICTION

This committee will not render opinions on "pure questions of law, or on mixed questions of law and fact." Statement of Jurisdictional Policies, § 6(a). Our jurisdiction is limited to resolution of questions of professional ethics. See § 6. This is a mixed question of ethics and law. The ethical considerations weigh so heavily on the proper course of the inquiring attorney's conduct that the committee has decided to entertain the matter on the merits.

THE DUTY TO DISCLOSE

It is a crime to suppress by concealment any physical evidence that would aid in the state's prosecution. A.R.S. § 13-2510(3). Additionally, anyone who removes physical evidence with the intent to impair its availability commit the crime of tampering with evidence. A.R.S. § 13-2809(A)(1).

Ethical principles on attorney-client confidentiality cover more ground than the evidentiary attorney-client privilege. EC 4-4 states, in part, "The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of his client." Accordingly, if the attorney were called as a witness, he could not invoke the attorney-client privilege. The fact that the attorney, not the client, took the initiative in transferring the items, takes his conduct outside the privilege. In Re Ryder, 263 F. Supp. 360 (E.D. Va. 1967), affirmed per curiam, 381 F.2d 713 (4th Cir. 1967). More fundamentally, if evidence is obtained from a third party who is not acting for the client, then the privilege to refuse to testify concerning the manner in which the evidence was obtained is inapplicable. Morrell v. State, 575 P.2d 1200, 1210 (Alaska 1978). When defense counsel removes or alters evidence, the privilege does not bar revelation of the original location of the evidence in question. See People v. Meredith, 175 Cal. Rptr. 612, 631 P.2d 46, 54 (1981).

This inquiry involves the duty of an attorney to transmit certain incriminating evidence to the state and reveal its source and location when the evidence stems from a client's "secret." Central to the inquiring attorney's dilemma is a conflict between a duty of loyalty to his client and the duty of disclosure that he owes to the state as an officer of the court.

The Code of Professional Responsibility prohibits an attorney from revealing a confidence or secret of his client or from using such a confidence or secret to the disadvantage of his client. DR 4-101(B)(1) and (2). As a matter of definition, "'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 the disclosure of which would be... likely to be detrimental to the client." DR 4-101(A). Since the defendant's girlfriend was not his agent, what she told and showed the investigator cannot be classified as a confidence. The disclosure of the location of the watch, as well as the act of turning it over, falls, however, well within the definition of a “secret.”

DR 4-101(C)(2) permits a lawyer to reveal secrets of a client when required by law. The requirement of disclosure is generally created by DR 1-102(A)(5) which obliges an attorney not to engage in conduct that is prejudicial to the administration of justice. Although disclosure under DR 4-101(C)(2) is discretionary with a lawyer where the Disciplinary Rules or law requires it, DR 7-102(A)(3) flatly prohibits a lawyer from concealing or knowingly failing to disclose that which he is required by law to reveal. Furthermore, a lawyer shall not suppress any evidence that he has a legal obligation to produce. DR 7-109(A). In certain situations, then, the permissive duty of disclosure is transposed into a mandatory one. A lawyer is also under the mandate that he "should not suppress evidence that he or his client has a legal obligation to reveal or produce." EC 7-27.

The inquiry of this committee hinges upon whether the lawyer has a legal obligation to reveal the secret. As inferred earlier, the inquiring lawyer faces potential criminal liability for hindering prosecution and tampering with evidence. See A.R.S. § 13-2510 and § 13-2809. If a legal obligation attaches, the attorney is ethically required to obey the law. The conflict between the duty of loyalty and that of disclosure is resolved in favor of disclosure by reference to DR 7-102(A)(17) which prohibits an attorney from engaging in illegal conduct.

THE ATTORNEY AS A WITNESS

Based on the legal obligation imposed by the criminal statutes involved, the attorney must turn over the wristwatch. Examination of the case law reveals that not only must the attorney give the watch to the prosecution, but he may be compelled to testify as to the original location and source of the evidence. People v. Meredith, supra (where defense investigator removed victim's wallet from trashcan because of a client communication, the prosecution was entitled to be shown the location of the wallet). The public interest in an unbroken chain of evidence for purposes of prosecution prevails over the attorney's duty of loyalty and the attorney-client privilege. As a result of the fact that the inquiring attorney took the initiative in taking the watch, he loses the protection afforded by the attorney-client privilege because he has transformed his role from the passive possessor of information about a crime into the more active one of concealing evidence. Cf. People v. Belge, 83

Misc. 2d 186, 372 N.Y.S.2d 798 (1975), affirmed 50 App. Div. 2d 1088, 376 N.Y.S.2d 771 (4th Dept. 1975), affirmed 41 N.Y.2d 60, 390 N.Y.S.2d 867, 359 N.E.2d 377 (1976). (Information given to attorney concerning crime is within the attorney-client privilege.)

DUTY TO WITHDRAW

Due to the committee's resolution of the attorney's duty to disclose the evidence, we must decide whether the fact that the lawyer is acting against the interest of the client requires him to withdraw from further representation. We note that "(a) decision by a lawyer to withdraw should be made only on the basis of compelling circumstances." EC 2-32. It is important, however, to recognize the realities of the attorney-client relationship in light of the disclosures that counsel makes; plainly, there is a potential for creating distrust in this client's relationship with the lawyer which could chill further cooperation in the preparation of the client's defense. Moreover, the attorney faces the almost certain prospect of being called as a witness as to the source and location of the incriminating watch. As discussed earlier, he would not be able to invoke the attorney-client privilege to avoid testifying. Pursuant to DR 5-102(B), which prohibits further representation by an attorney where such testimony may be prejudicial to his client, the lawyer must assess the prejudicial impact his testimony would have. In this case its prejudicial effect seems obvious, although if the state's case is strong enough without the watch, the attorney's testimony may be de minimis. Given the loss of credibility he would suffer if he testifies, and the Sixth Amendment guarantee of effective assistance of counsel, all doubts should be resolved in favor of withdrawal.

We note that Arizona's new Rules of Professional Conduct also govern the disposition of this inquiry. Although there is no ethical obligation to reveal the source of the evidence under ER 1.6, the lawyer is still subject to the same requirement to testify if called as a witness. Pursuant to ER 3.4, the lawyer shall not unlawfully obstruct the state's access to evidence or conceal it; nor can he assist another in such an act. The lawyer has to withdraw if it is likely that he will be called as a necessary witness. ER 3.7 and ER 1.16(a)(1).

CONCLUSION

Accordingly, we conclude that the attorney must not only disclose the incriminating evidence, but may be compelled to reveal its source and whereabouts, if requested. If he is called as a witness, he must assess the prejudicial impact of his testimony upon his client and resolve any doubt in favor of withdrawal in order to improve his client's chances.

** **© State Bar of Arizona 1985