What must a Colorado criminal defense lawyer do when a client hands over a gun, money, a phone, or other incriminating physical or digital evidence?

Plain-English summary

Opinion 60 (revised February 2025) replaces the Committee's 1982 opinion of the same name, which was repealed on adoption of this revision. It analyzes a lawyer's duties when handling a client's incriminating evidence under the current Colorado Rules of Professional Conduct, carries forward the six original fact patterns (involving a gun, stolen cash, the location of a body and getaway car, and fingernail-scraping testing), and adds new fact patterns involving digital evidence such as cell phones, a car's telematics data, child pornography, and a witness's video.

The core principles: a lawyer who takes possession of incriminating physical evidence has an affirmative duty to surrender it to the proper authorities, because retaining or concealing it would violate Rule 3.4(a) and Colorado criminal statutes on tampering with or concealing evidence (C.R.S. sections 18-8-610, 18-8-105(2)). Turning evidence over to comply with law does not violate Rule 1.6, which permits disclosure required to comply with law or a court order (Rule 1.6(b)(8)); but the lawyer must not reveal the client's identity or confidential communications, and may, for example, retain another lawyer to deliver the item. A lawyer who merely observes incriminating evidence as a result of the representation, without altering or disturbing it (such as learning the location of a body or getaway car), must not disclose those observations. A lawyer and the lawyer's agents may not suppress or conceal incriminating evidence in the lawyer's possession, and may not counsel the client or anyone else to alter, destroy, or conceal evidence (Rules 1.2(d) and 8.4). If a lawyer or agent disturbs evidence, for example by scraping and testing material from a victim, that disturbance must be voluntarily revealed to the prosecution because it deprived the prosecution of the chance to discover and test the evidence in its original state.

The revision's main addition is digital evidence. Under the competence duty (Rule 1.1, including the technology comment), a lawyer must recognize that devices such as cell phones, flash drives, and modern cars hold potentially relevant data (communications, location, attribution evidence). A lawyer may not advise a client to destroy or conceal an old phone, and the existence of the device remains confidential under Rule 1.6 absent a court order. A lawyer who accepts a car with onboard data as a fee risks destroying evidence by driving it or transferring title, and should consider having a forensic image made; the lawyer also risks a Rule 1.4 violation by failing to warn the client that the data or the car may have to be produced. For child pornography, the lawyer may not advise how to conceal or destroy it (and mere possession is itself a crime), though the lawyer may discuss the legal consequences of possessing versus destroying it consistent with Rule 1.2(d). When a witness merely shows the lawyer a video on the witness's own phone, the lawyer is not required to disclose it (the work-product doctrine applies) so long as the lawyer does not take possession; the lawyer should avoid manipulating the device, which could constitute possession or alter the file, and may not counsel the witness to destroy it. If the lawyer accepts a copy while the original remains with the witness, the lawyer need not turn the copy over unless served with a subpoena or court order.

In practice

The opinion holds that the analysis turns on whether the lawyer takes possession of or disturbs the evidence. Under Rule 3.4(a) and Colorado's evidence-tampering statutes, a lawyer who takes possession of incriminating physical or digital evidence must surrender it to the authorities within a reasonable time, while shielding the client's identity and confidential communications under Rule 1.6 and never revealing observations of undisturbed evidence. The opinion's standard operating procedures state that criminal defense lawyers should avoid taking or handling potential evidence (a device, drive, or firearm) from anyone, especially a client, and should instruct their paralegals, investigators, and experts to do the same; when they must handle an item, they should advise the client that it may have to be turned over before trial, that handing it to the lawyer does not make it privileged, and that the lawyer could be called to testify about how it was acquired. The opinion further holds that a lawyer may tell a client that possessing an item is illegal and that destroying or concealing evidence is a crime, but may not advise the client how to dispossess, conceal, or destroy it. Confirm the current text of Rules 3.4, 1.6, 1.2, and 8.4 and the cited statutes before acting on any specific point.

Common questions

Q: My client handed me the gun used in the crime. What do I do?

A: The opinion concludes that if the lawyer takes possession of the gun, Rule 3.4(a) and Colorado law require turning it over to the police or prosecutor, because retaining it would be unlawful; before taking it, the lawyer must advise the client of these obligations (Rule 1.4(a)), may not advise destroying or concealing it (Rule 1.2(d)), and must keep the client's identity and possession confidential under Rule 1.6 absent a court order.

Q: When I surrender the evidence, do I have to identify my client?

A: No. The opinion concludes the lawyer must not reveal the client's identity or confidential communications when surrendering evidence, and suggests the lawyer consider retaining another lawyer to deliver the item to the authorities.

Q: My client told me where the body is but I never touched anything. Must I disclose it?

A: No. The opinion concludes that a lawyer who only observes incriminating evidence as a result of the representation, without altering or disturbing it (such as the location of a body or getaway car), must not disclose those observations, which are protected client information.

Q: Can I tell a client to wipe or get rid of an old cell phone?

A: No. The opinion concludes a lawyer may not advise a client to destroy or conceal an old cell phone or assist in doing so (Rules 1.2(d), 8.4), because the phone may hold relevant digital evidence; the existence of the phone stays confidential under Rule 1.6 absent a court order.

Q: A witness showed me a video on their phone that hurts my client. Do I have to hand it over?

A: Not from merely viewing it. The opinion concludes that if the lawyer does not take possession, the lawyer need not disclose the video (work-product), but the lawyer should avoid manipulating the device (which could constitute possession or alter the file) and may not counsel the witness to destroy it; if the lawyer accepts a copy while the original remains with the witness, the copy need not be produced unless the lawyer is served with a subpoena or court order.

Q: Can I advise a client who possesses contraband like child pornography?

A: Only as to consequences. The opinion concludes the lawyer may not advise how to conceal or destroy the items and may not assist in doing so, but may discuss the legal consequences of the proposed conduct (Rule 1.2(d)), including that possessing, concealing, or destroying the material would violate the law.

Background and rules framework

The opinion interprets Colo. RPC 3.4(a) (a lawyer shall not unlawfully alter, destroy, or conceal material with potential evidentiary value, or counsel or assist another to do so), read with Comment [2] on temporary possession for limited examination. It also applies Rule 1.6 (confidentiality, including the Rule 1.6(b)(8) exception for disclosures required by law or court order and Comment [15] on responding to a court order), Rule 1.2(d) (not counseling or assisting client crime or fraud), Rule 8.4(a-1), (b), (c), (d) (misconduct), Rule 1.1 (competence, including technology), and Rule 1.4 (communication). The corresponding Model Rules are 3.4, 1.6, 1.2, 8.4, 1.1, and 1.4.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 3.4(a) / Model Rule 3.4 (fairness to opposing party; handling evidence)
• Colo. RPC 1.6, 1.6(b)(8) / Model Rule 1.6 (confidentiality; disclosure required by law or court order)
• Colo. RPC 1.2(d) / Model Rule 1.2 (not counseling or assisting crime or fraud)
• Colo. RPC 8.4(a-1), (b), (c), (d) / Model Rule 8.4 (misconduct)
• Colo. RPC 1.1, 1.4 / Model Rules 1.1, 1.4 (competence, including technology; communication)

Statutes:

• C.R.S. section 18-8-610 (tampering with physical evidence)
• C.R.S. section 18-8-105(2) (accessory; assisting concealment or destruction of evidence)
• C.R.S. section 18-1-501 (definition of voluntary act and possession)

Cases:

• People v. Swearingen, 649 P.2d 1102 (Colo. 1982), no Fifth Amendment protection for incriminating evidence in a lawyer's possession
• Fisher v. United States, 425 U.S. 391 (1976), compelled production of documents from an attorney
• State v. Olwell, 394 P.2d 681 (Wash. 1964), lawyer must produce physical evidence; should not be a depository for criminal evidence

See also

• CA Bar Op. 1984-076: Criminal Defense Lawyer's Duty on Taking Possession of Evidence
• CA Bar Op. 1986-089: Accepting Stolen Property From a Client
• ABA Formal Op. 06-442: Review and Use of Metadata

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/Repository/1.23.23/Revised%20Opinion%2060_FINAL.pdf