If a criminal defense lawyer becomes reasonably certain that the specific cash a client paid as a fee is the actual bills used in the crime, must the lawyer turn that cash over to law enforcement?

Plain-English summary

A client charged with selling illegal drugs paid the attorney's fee in cash. The attorney suspected the cash was used in an illegal narcotics sale, put it in a safe rather than a checking account, and later learned with reasonable certainty (confirmed by the client's statements to police, which the client admitted were accurate) that the cash was the actual money used in the transaction. The question was whether the attorney must turn the cash over to police.

The committee identified two duties in tension. First, Business and Professions Code section 6068(e) and the ABA Model Code DR 4-101(A) definition of "secret" (which the committee had adopted in earlier opinions) bar disclosure of client confidences and secrets without informed consent unless disclosure is compelled by law, and the source of fees being cash from narcotics transactions is a client secret. The committee noted, however, that under federal authority information about a fee arrangement may not always be privileged (Caplin & Drysdale v. United States; In re Osterhoudt; Tornay v. United States), while section 6068(e) provides broader protection than the evidentiary privilege.

Second, the committee identified Rule 5-220, which provides that a member shall not suppress any evidence the member or the client has a legal obligation to reveal or produce. It surveyed the California authority on turning over physical evidence and instrumentalities of a crime: People v. Meredith (observations resulting from a privileged communication, where the defense altered the evidence's location, were admissible), People v. Lee (counsel had no right to withhold the defendant's shoes and should turn evidence over on his own motion after a reasonable time), People v. Superior Court (Fairbank) (physical evidence must be turned over; secreting instrumentalities of a crime is an abuse of professional responsibility), and State Bar Formal Opinion 1984-76 (the criminal defense attorney is legally and ethically obligated, after a reasonable time to prepare the defense, to turn such evidence over to the prosecution on his own motion).

The committee concluded that once an attorney learns with reasonable certainty that the cash received was the actual money used in the illegal narcotics transaction, the attorney has a duty to turn that cash over to the police or prosecution within a reasonable period. In a footnote it noted that until the attorney is reasonably certain of the source, there is no such duty.

Currency note

This opinion was issued in 1991, before California's November 1, 2018 adoption of the renumbered Rules of Professional Conduct. It interprets former Rule 5-220 (suppression of evidence) and Business and Professions Code section 6068(e); these correspond to current Rules 3.4 and the confidentiality duty (Rule 1.6 / section 6068(e)). 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 mentioned here.

View original opinion

Common questions

Q: Must a defense lawyer turn over cash paid as a fee if it is the money used in the crime?

A: Per the opinion, yes, once the lawyer is reasonably certain the specific cash is the actual money used in the crime. The committee concluded the lawyer must turn it over to law enforcement or the prosecution within a reasonable time, without a request.

Q: Is the source of the cash a protected client secret?

A: Per the opinion, yes; that the fees are cash derived from narcotics transactions is a client secret under section 6068(e). The committee identified Rule 5-220's anti-suppression duty as the countervailing obligation that requires turning over the physical evidence.

Q: What if the lawyer is not yet certain the cash was used in the crime?

A: The committee stated in a footnote that until the attorney is reasonably certain the cash was used in the illegal transaction, there is no duty to turn it over.

Background and rules framework

The opinion interprets former California Rule 5-220 (a member shall not suppress evidence the member or client has a legal obligation to reveal or produce), corresponding to ABA Model Rule 3.4, and Business and Professions Code section 6068(e), paralleling Model Rule 1.6. The duty to surrender physical evidence and instrumentalities of a crime is drawn from the Meredith, Lee, and Fairbank line of California cases and State Bar Formal Opinion 1984-76.

Citations and references

Rules of Professional Conduct (former):

• California Rule 5-220 (suppression of evidence)

Statutes:

• California Business and Professions Code section 6068(e) (duty to preserve client secrets)

Cases:

• People v. Meredith, 29 Cal.3d 682 (1981), observations from privileged communication; altered evidence
• People v. Lee, 3 Cal.App.3d 514 (1970), duty to turn over physical evidence
• People v. Superior Court (Fairbank), 193 Cal.App.3d 32 (1987), instrumentalities of a crime
• Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989)
• In re Osterhoudt, 722 F.2d 591 (9th Cir. 1983); Tornay v. United States, 840 F.2d 1424 (9th Cir. 1988); Baird v. Koerner, 279 F.2d 623 (9th Cir. 1960)

Other opinions cited:

• California State Bar Formal Opinions 1981-58, 1984-76
• LACBA Formal Opinions 386, 389, 436, 456

See also

• LACBA Ethics Op. 531: Evidence From an Opposing Party's Former Employee
• LACBA Ethics Op. 519: No Self-Defense Exception to Confidentiality for Third-Party Claims
• LACBA Ethics Op. 463: Disclosing a Former Client's Securities Fraud to a Current Client

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010977