What must a Missouri criminal-defense lawyer do after receiving a suspected illegal substance in a client's fee-payment envelope?

Plain-English summary

A criminal-defense lawyer received a fee check accompanied by a bag containing an apparent illegal substance and a thank-you note. Rule 4-3.4(a) prohibits unlawfully obstructing access to evidence or unlawfully altering, destroying, or concealing material with potential evidentiary value.

The lawyer must comply with law governing knowing possession or transfer. If law permits temporary possession for a limited examination that will not alter or destroy the substance, Comment [2] permits it. The opinion does not decide whether the lawyer may return the substance or must give it to police, treating both as legal questions outside the Rules.

Rule 4-1.2(f) bars counseling or assisting criminal conduct and bars suggestions about concealment. If law requires delivery to police or prosecutors, Rule 4-1.6(b)(4) limits disclosure of the client's identity and representation-related information to what the lawyer reasonably believes necessary to comply.

The lawyer must keep the client reasonably informed about the representation, including the lawyer's professional and legal duties concerning the substance, and consult about the possible effect on the client's interests.

In practice

Under this opinion, the lawyer preserves potential evidence and does not independently resolve the unsettled possession, return, or delivery questions through destruction, concealment, or assistance. Required disclosure remains limited, and the client receives the consultation required by Rules 4-1.2(g) and 4-1.4.

Common questions

Q: May the lawyer destroy the suspected substance?

A: Not if destruction would be unlawful. Rule 4-3.4(a) prohibits unlawful destruction or concealment of potential evidence.

Q: May the lawyer examine it?

A: Only if applicable law permits temporary possession for a limited examination that will not alter or destroy it.

Q: Must the lawyer return it to the client?

A: The opinion does not decide whether return is permitted, identifying that as a question of law.

Q: Must the lawyer give it to law enforcement?

A: Applicable law may require that, but the opinion does not resolve the legal question.

Q: What information may be disclosed if delivery is legally required?

A: Only the client's identity and other representation information the lawyer reasonably believes necessary to comply with the law.

Background and rules framework

Rule 4-3.4(a) governs potential evidence, Rule 4-8.4(b) points to possession and transfer law, and Rule 4-1.2(f) bars criminal assistance. Rules 4-1.6(b)(4), 4-1.2(g), and 4-1.4 govern limited required disclosure and client consultation.

Citations and references

Rules of Professional Conduct:

• Missouri Rules 4-1.2(f), 4-1.2(g), 4-1.4, 4-1.6(b)(4), 4-3.4(a), and 4-8.4(b)
• Missouri Rule 4-1.2 Comment [9]; Rule 4-3.4 Comment [2]

See also

• North Carolina RPC 221: Receipt of Evidence of a Crime
• Los Angeles County Op. 466: Evidence of Crime Received from a Client
• Maine Ethics Op. 60: Possession of Physical Evidence

Source

• Landing page: Missouri Informal Opinion 2020-28

Original opinion text

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

QUESTION: Attorney received in the mail a check for payment of fees and expenses related to defending Client against pending drug-related criminal charges. Included in the envelope in a small plastic bag was what appears to be an illegal substance with a note reading “thank you.” What are Attorney’s ethics obligations?

ANSWER: Attorney should exercise caution in transferring, disposing, or retaining what Attorney may reasonably believe is an illegal substance. Rule 4–3.4(a) prohibits unlawfully obstructing another party’s access to evidence or unlawfully altering, destroying, or concealing material with potential evidentiary value. If concealing or destroying the substance would be unlawful, Attorney may not do so. See Rule 4–3.4, Comment [2]. If applicable law permits Attorney to have temporary possession of evidence of a crime for the purpose of conducting a limited examination that will not alter or destroy the substance, Attorney may do so. Rule 4–3.4, Comment [2]. Attorney must comply with applicable law regarding the knowing possession or transfer of an illegal substance. See Rule 4–8.4(b). Whether applicable law permits Attorney to return the substance to Client is a question of law outside the scope of the Rules of Professional Conduct. Attorney may not counsel Client to engage in, or assist Client, in conduct Attorney knows is criminal, nor may Attorney suggest to Client how the conduct might be concealed. Rule 4–1.2(f) and Comment [9]. Applicable law may require Attorney to turn the evidence over to police or other prosecuting authority. See Rule 4–3.4, Comment [2]. Whether the law so requires is a question of law outside the scope of the Rules of Professional Conduct. If so, Attorney must do so in a way that limits the disclosure of Client’s identity and other information related to the representation to what Attorney reasonably believes necessary to comply with other law. Rule 4–1.6(b)(4). Attorney must keep Client reasonably informed about the representation, including Attorney’s professional and legal obligations regarding the substance, and consult with Client about the potential impact on the interests of Client. Rules 4–1.2(g) and 4–1.4.