When a criminal defense lawyer takes possession of physical evidence the client brings in, must the lawyer turn it over to the prosecution, and can the lawyers stay on the case if they may become witnesses?

Plain-English summary

The opinion addressed two appointed lawyers from different firms defending a client charged with first-degree murder. The client told them he knew of relevant physical evidence and brought it to one lawyer's office; that lawyer took possession to examine it and consult co-counsel. The client's wife, who had been present during the altercation, gave the lawyers a self-incriminating account that differed from her statement to police. The inquiries asked whether the lawyers had to notify the prosecution about the evidence, what they could disclose, and whether becoming potential witnesses forced them to withdraw.

On disclosure, the opinion concluded the lawyers need not notify the district attorney or investigators. It balanced the duty to preserve client confidences and zealously represent the client (Rule 4, Canon VII) against the duty not to engage in conduct prejudicial to the administration of justice (Rule 1.2(d)). Absent a court order or a common-law or statutory duty to disclose or deliver inculpatory physical evidence that is not contraband, a defense lawyer may take such evidence for testing, examination, or inspection and should then return it to the source, advising the source of the legal consequences of possessing or destroying it and to retain it intact, citing the ABA Standards for Criminal Justice, Standard 4-4.6. If subpoenaed for such evidence, the lawyer may contest the subpoena but must comply with a court order, and under G.S. 15A-905 must produce evidence the defendant intends to introduce at trial. On withdrawal, the opinion concluded the lawyers need not withdraw because it was not "obvious" that either "ought" to be called as a witness under Rule 5.2(b); information from the wife was confidential under Rule 4(a) and G.S. 15A-906, the wife could be called directly, and a nonlawyer present at witness interviews could avoid the problem. Even if a lawyer had to testify to rebut the wife, the Rule 5.2(a)(4) substantial-hardship exception might let that lawyer continue, and at most only the testifying lawyer, not co-counsel, would have to withdraw.

Currency note

This opinion was issued in 1995, before the North Carolina State Bar'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: Must a North Carolina defense lawyer tell the prosecution about physical evidence the client brings in?

A: No, absent a court order or a common-law or statutory duty to disclose. The opinion concluded the lawyer may take non-contraband inculpatory evidence for examination and then return it to the source.

Q: What must the lawyer do after examining the evidence?

A: Return it to the source and advise the source of the legal consequences of possessing or destroying it, including advice to retain it intact and not violate evidence statutes. The opinion cited ABA Standard 4-4.6.

Q: What if the lawyer is subpoenaed for the evidence?

A: The opinion concluded the lawyer may take appropriate steps to contest the subpoena to protect the client, but must comply with a court order to produce the evidence.

Q: Do the lawyers have to withdraw because they might be witnesses?

A: No. The opinion concluded it was not obvious that either lawyer ought to be called as a witness under Rule 5.2(b), and even if one had to testify, the substantial-hardship exception might apply and only the testifying lawyer, not co-counsel, would need to withdraw.

Background and rules framework

The opinion applied North Carolina's then-current Rule 4 confidentiality provision (corresponding to Model Rule 1.6), Rule 1.2(d) on conduct prejudicial to the administration of justice (corresponding to Model Rule 8.4), and Rule 5.2 on the lawyer as witness (corresponding to Model Rule 3.7), including the Rule 5.2(a)(4) substantial-hardship exception. It also drew on the ABA Standards for Criminal Justice, Standard 4-4.6, and North Carolina statutes governing criminal discovery and the confidentiality of attorney work in criminal cases.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• MR 3.7 (lawyer as witness)
• MR 8.4 (misconduct; conduct prejudicial to the administration of justice)
• North Carolina Rule 4, Rule 1.2(d), Rule 5.2

Statutes:

• N.C. Gen. Stat. 15A-905 (defendant's disclosure of evidence to be introduced at trial)
• N.C. Gen. Stat. 15A-906 (confidentiality of defense work)

Other authorities:

• ABA Standards for Criminal Justice, Prosecution Function and Defense Function (3rd ed.), Standard 4-4.6(a)-(c), "Physical Evidence"

See also

• NC Ethics Op. 2012 FEO 15: lawyer as witness
• NC Ethics Op. 2011 FEO 1: lawyer as advocate and witness

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-221/

Original opinion text

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

Inquiry #1:

Attorney A and Attorney B work for different law firms. They have been appointed to represent Defendant who is charged with first degree murder. Defendant's wife, W, was apparently present during the altercation that led to the victim's death. During Attorney A and Attorney B's investigation, Defendant implicated W in the matter and told the attorneys that he had knowledge of relevant physical evidence. The police detectives who investigated the death are in possession of a stick they believe Defendant used to commit the murder but neither the police detectives nor the prosecutors are aware of the existence of other physical evidence.

Defendant brought the physical evidence to Attorney B's office. Attorney B took possession of the physical evidence for purposes of examination and consultation with Attorney A concerning the extent to which the physical evidence might incriminate or exculpate Defendant.

Attorney A and Attorney B interviewed W who incriminated herself. The story W told Attorney A and Attorney B is different from the statement that she gave to the police officers during the initial investigation.

Must Attorney A or Attorney B notify the district attorney's office or the investigating law enforcement agency of the existence of the physical evidence?

Opinion #1:

No. On the one hand, a lawyer has a duty to preserve the confidences of the client and to zealously represent the client within the bounds of the law. Rule 4 and Canon VII of the Rules of Professional Conduct. On the other hand, a lawyer is an officer of the court and should not engage in conduct that is prejudicial to the administration of justice. Rule 1.2(d). In the absence of a court order or a common law or statutory obligation to disclose the location or deliver an item of inculpatory physical evidence that is not contraband (the possession of which is in and of itself a crime, such as narcotics) to law enforcement authorities, a defense lawyer may take such evidence into his or her possession for the purpose of testing, examination, or inspection. The defense lawyer should return the evidence to the source from whom the lawyer received it. In returning the item to the source, the lawyer must advise the source of the legal consequences pertaining to the possession or destruction of the evidence by that person or others. This advice should include the advice to retain the evidence intact and not engage in conduct that might be a violation of criminal statutes relating to evidence. See generally ABA Standards for Criminal Justice Prosecution Function and Defense Function (3rd ed.), Standard 4-4.6(a)-(c), "Physical Evidence," and Commentary. If a defense lawyer receives a subpoena for inculpatory physical evidence in his or her possession, the lawyer may take appropriate steps to contest the subpoena in order to protect the interests of the client. However, the lawyer must comply with a court order to produce the evidence.

Similarly, pursuant to G.S. §15A-905, a defense lawyer must comply with any order entered by the court to produce evidence the defendant intends to introduce at trial.

Inquiry #2:

What specific information, if any, is Attorney A or Attorney B allowed to disclose to the district attorney or the law enforcement agency regarding the weapon or how it was obtained?

Opinion #2:

See opinion #1 above.

Inquiry #3:

W provided information to Attorney A and Attorney B which would assist Defendant in his defense. Since Attorney A and Attorney B might be witnesses for Defendant, do they have to withdraw from the representation of Defendant?

Opinion #3:

No. Rule 5.2(b) requires a lawyer to withdraw from the representation of a client if, "after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client." However, he may continue the representation and he or a lawyer in his firm may testify under the circumstances enumerated in Rule 5.2(a). It is not "obvious" that Attorney A or Attorney B "ought" to be called as a witness for their client. Any information gained by Attorney A and Attorney B during the professional relationship with Defendant, including information obtained from third parties such as W, is confidential information. Rule 4(a); see also G.S. §15A-906. Unless Defendant consents to disclosure of the information gained from W, the lawyers may not testify about what W told them. Even if Defendant consents to the use of this information, W may be called as a witness herself, thus avoiding the need for Attorney A or Attorney B to testify. A problem of this nature can be avoided by having a nonlawyer present at all interviews with prospective trial witnesses.

Inquiry #4:

Defendant has consented to the disclosure by Attorney A and Attorney B of the substance of W's statements to them. At trial, W is called as a witness and testifies contrary to her earlier statements to Attorney A and Attorney B. If the testimony of Attorney A or Attorney B is necessary to rebut the testimony of W, must one or both of them withdraw from the representation?

Opinion #4:

Withdrawal may not be required. It is possible that by aggressive cross-examination of W, the need for one of the lawyers to testify will be avoided. If Lawyer A or Lawyer B must testify in order to rebut the testimony of W, moreover, the lawyers might conclude that an exception in Rule 5.2(a)(4) applies which would allow the lawyer to testify without withdrawing from the representation. Rule 5.2(b). Rule 5.2(a)(4) allows a lawyer to continue the representation despite acting as a witness in the trial if withdrawal "would work a substantial hardship on the client because of the distinctive value of the lawyer...as counsel in the particular case."

If it is necessary for one of the lawyers to testify, the lawyer who testifies may have to withdraw from the representation but the other lawyer may remain in the case. Rule 5.2(b) only requires the lawyer who testifies for his client and the other members of his firm to withdraw from the representation.