Can a criminal defense lawyer keep a piece of physical evidence the client says was stolen from a police station?

Plain-English summary

A felony defendant gave his lawyer a document the client said a friend had surreptitiously removed from a police station, and the lawyer asked whether he could retain it. The committee framed the issue as a balance between Canon 4's duty to preserve client confidences and secrets and DR 1-102(A)(5)'s bar on conduct prejudicial to the administration of justice. It noted that conflicts of this kind are generally resolved in favor of preserving confidences, because encouraging full client disclosure serves the client, the public, and the administration of justice.

But the committee stressed that confidentiality is not absolute. DR 4-101(C)(2) permits revealing confidences or secrets where required by law, and DR 7-102(A)(3) prohibits concealing or failing to disclose what the law requires the lawyer to reveal. So, as in N.Y. State 466 (1977), the analysis turns on whether there is a legal obligation to reveal, a complex question of law outside the committee's jurisdiction to resolve. The committee illustrated the legal issues a lawyer would have to weigh: the attorney-client privilege under CPLR 4503(a) (noting that merely depositing physical evidence with a lawyer does not cloak it with privilege, citing People v. Belge and Fisher v. United States), larceny and evidence-suppression statutes, and the client's Sixth Amendment right to counsel. It also pointed to the recognized distinction between affirmative acts to conceal evidence and the passive possession of information about a crime.

The committee concluded that if the lawyer has no legal obligation to turn over the evidence, the duty to preserve the client's secrets is paramount and there is no ethical duty to surrender it. If a legal obligation does attach, the lawyer is ethically required to obey the law. Where the law prescribes a method of return, the lawyer must follow it; where it does not, the lawyer should surrender the evidence revealing only what is necessary and in the manner least prejudicial to the client. A lawyer who becomes convinced the evidence must be surrendered should explain the legal requirements to the client and offer to withdraw, obtaining court permission to withdraw where the rules require it (DR 2-110(A)(1)). The question, whether the lawyer may simply retain the document, was answered in the negative.

Currency note

This opinion was issued in 1981, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (confidentiality now appears at Rule 1.6, fairness to opposing party and counsel including unlawful concealment of evidence at Rule 3.4, and the scope of representation at Rule 1.2). 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: Can a defense lawyer keep evidence the client hands over?

A: Only if the law imposes no duty to surrender it. The committee held that whether the lawyer may retain physical evidence turns entirely on whether a legal obligation to reveal it exists.

Q: Does giving evidence to a lawyer make it privileged?

A: Not by itself. The committee noted, citing People v. Belge, that merely depositing documents with an attorney does not cloak them with the attorney-client privilege.

Q: If the lawyer must turn it over, how should that be done?

A: Following any method the law prescribes, and otherwise in the manner least prejudicial to the client, revealing only what is necessary; the lawyer should also explain the situation to the client and offer to withdraw.

Background and rules framework

The opinion applied Canon 4 and DR 4-101 (confidences and secrets), DR 7-102(A)(3) (not concealing what the law requires be revealed), DR 1-102(A)(5) (conduct prejudicial to the administration of justice), and DR 2-110(A)(1) (withdrawal), to a criminal defense lawyer holding physical evidence. The closest current Model Rule analogues are Rule 1.6 (confidentiality), Rule 3.4 (fairness; unlawful concealment of evidence), and Rule 1.2 (scope; not assisting crime or fraud).

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality)
• MR 3.4 (fairness; evidence)
• MR 1.2 (scope of representation)
• NY Canon 4, DR 1-102(A)(5), DR 2-110(A)(1), DR 4-101(C), DR 7-102(A)(3), DR 7-102(A)(5), DR 7-102(B)(1)

Statutes:

• CPLR 4503(a) (attorney-client privilege)
• N.Y. Penal Law sec. 205.50 (suppression of evidence); secs. 165.45, 165.50 (receipt of stolen property)

Cases:

• People v. Belge, 83 Misc. 2d 186 (1975), aff'd, 50 App. Div. 2d 1088 (4th Dept. 1975), aff'd, 41 N.Y.2d 60 (1976), physical evidence and privilege
• Fisher v. United States, 425 U.S. 391 (1976), scope of the privilege
• Morrell v. State, 575 P.2d 1200 (Alaska 1978), statutory duty to turn over evidence
• In re Ryder, 263 F. Supp. 360 (E.D. Va.), aff'd, 381 F.2d 713 (4th Cir. 1967), concealment of evidence
• State ex rel. Sowers v. Olwell, 64 Wash. 2d 828, 394 P.2d 681 (1964), least-prejudicial surrender

Other opinions cited:

• N.Y. State 466 (1977), 405 (1975), 479 (1978): affirmative concealment versus passive possession
• ABA Inf. 1057 (1968): withdrawal where the lawyer acts against the client's interest

See also

• NY State Bar Op. 528: Client whereabouts and the duty to preserve confidences
• NY State Bar Op. 529: Representing a fugitive client who refuses to surrender
• NY State Bar Op. 525: A prospective client's confidences and a resulting conflict

Source

• Landing page: https://nysba.org/opinion-530/