Can a North Carolina lawyer take possession of a photograph showing a minor in sexual activity to use it as evidence in a custody case?

Plain-English summary

In a custody matter, a client (Mother) shows her lawyer a photograph found on her minor child's phone depicting the child in sexual activity, and wants the lawyer to take it and introduce it at the next hearing to show the opposing party's lack of supervision. The opinion concludes the lawyer may not take possession of the photograph. Building on 2007 FEO 2 (a lawyer may not take possession of a client's contraband when possession is itself a crime) and Rule 1.2(d) (a lawyer shall not counsel or assist a client in conduct the lawyer knows is criminal), the opinion explains that possessing such an image is a crime under North Carolina law (third-degree sexual exploitation of a minor, N.C. Gen. Stat. § 14-190.17A(a), and second-degree for duplication or distribution, § 14-190.17(a)) and under federal law (18 U.S.C. §§ 2251, 2252, 2252A), with no exception for possession in furtherance of a representation. Even though the lawyer's purpose is to represent a client and not nefarious, the law absolutely bars possession, and the Rules of Professional Conduct cannot override that.

The opinion adds that the lawyer must review the law to determine whether the lawyer and the client have a duty to report the image to law enforcement or the Department of Social Services, pointing to N.C. Gen. Stat. § 14-318.6 (reporting a sexual offense against a minor to law enforcement) and § 7B-301 (reporting abuse, neglect, or dependency to DSS). Because the lawyer cannot lawfully take the image, the question of safeguards to protect the child is moot; the lawyer does not represent the child and owes no duty to protect the child's legal interest, though the lawyer may have a duty to report (Inquiry #2). If a client instead emails such images to the lawyer without warning, the opinion concludes the lawyer still cannot possess the contraband and must promptly review the law on the duty to report; if a law requires the lawyer to disclose the location of the contraband to authorities, the lawyer must do so after notifying the client and explaining the legal consequences (Inquiry #3, citing 2007 FEO 2).

In practice

Under this opinion, a North Carolina lawyer may not take possession of a photograph depicting a minor in sexual activity, even to use it as evidence, because possessing the material is a crime with no exception for a representation (N.C. Gen. Stat. §§ 14-190.17A(a), 14-190.17(a); 18 U.S.C. §§ 2251, 2252, 2252A; Rule 1.2(d); 2007 FEO 2). The opinion holds that the lawyer must review the law on whether the lawyer and the client have a duty to report the image to law enforcement (N.C. Gen. Stat. § 14-318.6) or the Department of Social Services (§ 7B-301). If a client emails such images to the lawyer unsolicited, the lawyer still may not possess them, must promptly review the reporting law, and, if required to disclose the contraband's location to authorities, must do so after notifying the client and explaining the legal consequences.

Common questions

Q: Can a North Carolina lawyer take a photo showing a minor in sexual activity to use as custody evidence?

A: No. Opinion #1 concludes the lawyer may not take possession, because possessing such material is a crime under state and federal law with no exception for furthering a representation, and Rule 1.2(d) bars assisting a client in known criminal conduct.

Q: Does the lawyer's good purpose change the answer?

A: No. Opinion #1 explains that even though the lawyer's intent is to represent a client and not nefarious, the law absolutely prohibits possessing the image and the Rules of Professional Conduct cannot override that prohibition.

Q: Does the lawyer have to report the image?

A: Possibly. Opinions #1 and #2 conclude the lawyer must review the law to determine whether the lawyer and the client have a duty to report the image, citing N.C. Gen. Stat. § 14-318.6 (law enforcement) and § 7B-301 (Department of Social Services).

Q: What if a client emails such images to the lawyer without warning?

A: Opinion #3 concludes the lawyer still cannot possess the contraband, must promptly review the law on the duty to report, and, if a law requires disclosing the contraband's location to authorities, must do so after notifying the client and explaining the legal consequences (2007 FEO 2).

Background and rules framework

The opinion interprets North Carolina Rule 1.2(d) (a lawyer shall not counsel or assist a client in conduct the lawyer knows is criminal or fraudulent), corresponding to ABA Model Rule 1.2. It relies on prior NC opinion 2007 FEO 2 (a lawyer may not take possession of a client's contraband when possession is itself a crime, and on the duty to disclose the location of contraband). The analysis applies criminal statutes that the Rules cannot override: N.C. Gen. Stat. § 14-190.17A(a) (third-degree sexual exploitation of a minor) and § 14-190.17(a) (second-degree), the federal statutes 18 U.S.C. §§ 2251, 2252, and 2252A, and the reporting statutes N.C. Gen. Stat. § 14-318.6 and § 7B-301.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.2 / NC Rule 1.2(d) (not assisting a client in known criminal conduct)

Statutes:

• N.C. Gen. Stat. § 14-190.17A(a) (third-degree sexual exploitation of a minor); § 14-190.17(a) (second-degree)
• 18 U.S.C. §§ 2251, 2252, 2252A (federal child-exploitation offenses)
• N.C. Gen. Stat. § 14-318.6 (reporting a sexual offense against a minor to law enforcement); § 7B-301 (reporting to the Department of Social Services)

Other opinions cited:

• 2007 FEO 2 (a lawyer may not take possession of a client's contraband; disclosing the location of contraband)

See also

• CO Bar Op. 60: A Client's Incriminating Physical Evidence
• TX Ethics Op. 690: Criminal Defense Lawyer Holding Tangible Evidence From a Client
• CA Op. 1986-089: Attorney Who Accepts Stolen Property From a Client

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2021-formal-ethics-opinion-4/

Original opinion text

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

Inquiry #1:

Lawyer represents Mother in a pending child custody matter. During the consultation, Mother informed Lawyer that she recently discovered an illicit photograph of her minor child on the child’s cell phone. The photograph depicts the minor child engaging in sexual activity. Mother believes the photograph was taken while the minor child was living with Mother’s ex-husband and opposing party, Father. Mother believes the photograph is relevant to the custody matter in that it demonstrates Father’s lack of proper supervision of minor child and wants Lawyer to introduce the photograph into evidence at the next custody hearing. Mother presents the photograph to Lawyer, who confirms that the photograph contains a visual representation of a minor child engaging in sexual activity. Lawyer believes the photograph is relevant to the court’s determination of the best interests of the child.

May Lawyer take possession of the photograph for the purpose of introducing it as evidence in the upcoming custody hearing?

Opinion #1:

No. The Ethics Committee previously opined that a lawyer may not take possession of a client’s contraband if possession is itself a crime. 2007 FEO 2. Furthermore, a lawyer shall not counsel or assist a client to engage in conduct that the lawyer knows is criminal. Rule 1.2(d).

The possession of child pornography is a crime. North Carolina state law provides that a person commits the offense of third-degree sexual exploitation of a minor if, knowing the character or content of the material, he possesses material that contains a visual representation of a minor engaging in sexual activity. N.C. Gen. Stat. § 14-190.17A(a). Furthermore, North Carolina law defines second degree sexual exploitation of a minor if the person, knowing the content of the material, duplicates or distributes material that contains a visual representation of a minor engaged in sexual activity. N.C. Gen. Stat. § 14-190.17(a). There is no legal exception allowing a lawyer to possess such material if the possession is in furtherance of the representation of a client. Additionally, federal law prohibits the production, distribution, reception, and possession of an image of child pornography using or affecting any means or facility of interstate or foreign commerce. See 18 U.S.C. § 2251; 18 U.S.C. § 2252; and 18 U.S.C. § 2252A.

Both North Carolina and federal law clearly establish that it is unlawful for Lawyer to take possession of the photograph. Although Lawyer’s intent in taking possession of the photograph is for the purpose of representing a client and not for nefarious purposes, the law provides an absolute prohibition against possessing the photograph that the Rules of Professional Conduct cannot overrule.

Additionally, Lawyer must review the law to determine if he and Mother/client have a legal duty to report the existence of the photograph to either law enforcement or the Department of Social Services. The North Carolina statutes Lawyer should review include, but are not limited to, N.C. Gen. Stat. § 14-318.6 (report sexual offense of a minor to law enforcement) and N.C. Gen. Stat. § 7B-301 (report abuse, neglect, and dependency to the Department of Social Services).

Inquiry #2:

If Lawyer is permitted to take possession of the photograph, what safeguards should Lawyer take to protects the rights of the minor child?

Opinion #2:

Lawyer is not permitted to take possession of the photograph because it is prohibited by law. See Opinion #1. Nevertheless, Lawyer does not represent the child and therefore owes no duty to protect her legal interest. Lawyer, however, may have a duty to report the existence of the photograph to law enforcement and/or the Department of Social Services (DSS). See Opinion #1.

Inquiry #3:

Same scenario as Inquiry #1, except that, without prior notice to Lawyer, Client sends to Lawyer by email photographs of Client’s minor child engaging in sexual activity. What are Lawyer’s duties regarding the photographs?

Opinion #3

Because a photograph portraying a minor engaged in sexual activity is contraband and it is unlawful to possess contraband, Lawyer cannot possess the photographs. Upon discovering the photographs/contraband in Lawyer’s email inbox, Lawyer must promptly review the law on the duty to report to law enforcement and DSS. See Opinion #1. Furthermore, if there is a law requiring Lawyer to disclose the location of the contraband to the authorities, Lawyer must do so after notifying the client and explaining the legal consequences to the client. 2007 FEO 2.