When a West Virginia lawyer or investigator comes into possession of physical evidence of a client's crime, what do the amended Rules of Professional Conduct require?

Plain-English summary

The Lawyer Disciplinary Board issued this opinion to revisit its earlier inquiry L.E.I. 98-02, "When Lawyers Know About and/or Come Into Possession of Fruits or Instrumentalities of a Crime," after the West Virginia Rules of Professional Conduct were amended effective January 1, 2015. The rules applicable in L.E.I. 98-02 were Rules 1.2(d), 1.6, 3.4(a), 3.4(b), 3.4(c), 3.4(f), 8.4(b), 8.4(c), and 8.4(d). Of those, the Board notes the only rule whose language changed was Rule 1.6, which was expanded to give more examples of when disclosure of client confidential information is allowed.

Although the text of Rule 3.4 did not change, the Board flags a noteworthy new comment to Rule 3.4 of the amended rules. The comment states that if a lawyer takes possession of evidence, "applicable law" may require the lawyer to turn the evidence over to police or the prosecutor. The Board advises that a lawyer should be careful in advising clients and should review the applicable law, state or federal, including whether possession of the evidence would violate statutes on obstruction of justice, tampering with evidence, or other offenses related to the alteration, concealment, or destruction of evidence. The opinion observes that defense lawyers, and even their investigators, may be required to turn over evidence, even without a court order or subpoena, if they take physical possession of an item of physical evidence.

The Board illustrates the point with State v. Carney, in which an investigator working for an attorney in a murder investigation was charged with and convicted of obstruction of justice after removing items of evidence from a residence and turning them over to the attorney, who in turn gave them to the United States Attorney. The Board reads the Supreme Court of Appeals' reversal of that conviction (because the items were obtained through lawful entry and then provided to the authorities) as suggesting that evidence obtained unlawfully, or held by an attorney or investigator and not turned over to authorities, may be grounds to sustain an obstruction conviction. Because of that risk, the opinion advises lawyers to consult with the client before taking possession of evidence and to clearly inform the client that it is a crime to alter, conceal, or destroy evidence. The opinion fully adopts L.E.I. 98-02 and adds that there is no single right or wrong answer for every factual situation; applicable law must be reviewed before anyone takes temporary possession of physical evidence of client crimes.

In practice

Under this opinion, the conduct addressed (a lawyer or the lawyer's investigator taking physical possession of evidence of a client's crime) is governed by both the Rules of Professional Conduct and applicable criminal law. The opinion holds that the analysis turns on applicable law: obstruction-of-justice and evidence-tampering statutes may require the lawyer to turn the evidence over to police or the prosecutor, even without a court order or subpoena, and may expose the lawyer or investigator to criminal liability for how the evidence is obtained or withheld.

The opinion makes the guidance fact-specific. It states there is no right or wrong answer for every situation and directs that applicable law be reviewed before anyone takes temporary possession of physical evidence. Per the opinion, the practical steps the Board identifies are to consult the client before taking possession of evidence and to inform the client clearly that altering, concealing, or destroying evidence is itself a crime.

Common questions

Q: Did the 2015 rule amendments change what a West Virginia lawyer must do with physical evidence of a client's crime?

A: The opinion concludes the substance is largely unchanged: of the rules applicable in L.E.I. 98-02, only Rule 1.6 had a language change (expanded disclosure examples). Rule 3.4's text did not change, but a new comment was added flagging that applicable law may require turning evidence over to police or the prosecutor.

Q: If a lawyer or investigator takes possession of physical evidence, must it be turned over to authorities?

A: The opinion concludes that applicable law may require it. It notes defense lawyers and their investigators may be required to turn over evidence even without a court order or subpoena if they take physical possession, and that obstruction and tampering statutes must be reviewed.

Q: What does the opinion advise before a lawyer takes evidence from a client?

A: The opinion advises consulting with the client before taking possession of evidence and clearly informing the client that it is a crime to alter, conceal, or destroy evidence.

Background and rules framework

The opinion interprets the West Virginia Rules of Professional Conduct as amended effective January 1, 2015, in the context of evidence of client crimes. Rule 1.6 (Model Rule 1.6, confidentiality) was expanded to add examples of permitted disclosure, including the paragraph (b) exceptions reproduced in the opinion's footnote. Rule 3.4 (Model Rule 3.4, fairness to opposing party and counsel) retained its text but gained a comment addressing a lawyer's obligations on taking possession of evidence. The opinion also lists Rules 1.2(d) (counseling or assisting crime or fraud) and 8.4(b), (c), and (d) (misconduct) as applicable to the underlying L.E.I. 98-02 analysis, and points to West Virginia's obstruction-of-justice statute, W.Va. Code § 61-5-17(a), as the kind of applicable law a lawyer must review.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / WV RPC 1.6 (confidentiality; expanded disclosure exceptions effective Jan. 1, 2015)
• Model Rule 3.4 / WV RPC 3.4(a), (b), (c), (f) (fairness to opposing party and counsel; new comment on possession of evidence)
• Model Rule 1.2 / WV RPC 1.2(d) (counseling or assisting client crime or fraud)
• Model Rule 8.4 / WV RPC 8.4(b), (c), (d) (criminal acts, dishonesty, conduct prejudicial to the administration of justice)

Statutes:

• W.Va. Code § 61-5-17(a) (obstruction of justice)

Cases:

• State v. Carney, 222 W.Va. 152, 663 S.E.2d 606 (W. Va. 2008), reversing an investigator's obstruction conviction where items were obtained through lawful entry and provided to the authorities

Other opinions cited:

• WV L.E.I. 98-02: When Lawyers Know About and/or Come Into Possession of Fruits or Instrumentalities of a Crime (fully adopted and attached as an appendix to this opinion)

See also

• TX Ethics Op. 690: A criminal-defense lawyer holding tangible evidence from a client
• NY State Bar Op. 405: Disclosing the location of stolen property
• LACBA Op. 466: Disclosure of evidence of a crime received from a client

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e9d8a39b85670f694.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

L.E.O. 2015-03

THE AMENDED RULES OF PROFESSIONAL CONDUCT AND THEIR EFFECT ON L.E.I. 98-02

INTRODUCTION

The West Virginia Rules of Professional Conduct were amended on January 1, 2015. The Rules of Professional Conduct that were applicable in L.E.I. 98-02[1] were Rules 1.2(d), 1.6, 3.4(a), 3.4(b), 3.4(c), 3.4(f), 8.4(b), 8.4(c), and 8.4(d). Out of this list of rules, the only the rule with a change in its language was Rule 1.6. Rule 1.6 was expanded to provide more examples of when disclosures are allowed regarding client confidential information.[2] While the language in Rule 3.4 did not change, the additional comment that was added to the rule is noteworthy.

The comment to Rule 3.4 of the Amended West Virginia Rules of Profession Conduct states that if a lawyer takes possession of evidence, "applicable law" may require the lawyer to turn the evidence over to police or the prosecutor. A lawyer should be careful in the advice which he or she provides to clients and should review the "applicable law," state or federal, which addresses these issues. This review would include whether possession of the evidence would be in violation of statutes dealing with obstruction of justice, tampering with evidence or any other offense related to the alteration, concealment or destruction of evidence. Defense lawyers, or even their investigators, may be required to turn over evidence, even without a court order or subpoena, if they take physical possession of an item of physical evidence.

State v. Carney, 222 W.Va. 152, 663 S.E.2d 606 (2008), is one West Virginia case where an investigator, working for an attorney in a murder investigation, was charged with, and convicted of, obstruction of justice after the investigator had removed several items of evidence from a residence and turned that evidence over to the attorney. The attorney subsequently turned the evidence over to the United States Attorney. In reversing the investigator's conviction, the Supreme Court of Appeals of West Virginia held that "... the removal of the items in issue, which were obtained through lawful entry and then provided to the authorities, does not constitute evidence sufficient to sustain a conviction for obstruction under West Virginia Code § 61-5-17(a)." Id. at 159, 613. This case certainly suggests that evidence obtained unlawfully and/or held by an attorney or investigator and not turned over to authorities, may very well be grounds sufficient to sustain a conviction for obstruction of justice. Because there is a risk in a lawyers having to turn over evidence to authorities, lawyers should consult with the client before taking possession of evidence and clearly inform the client that it is a crime to alter, conceal or destroy evidence.

This Legal Ethics Opinion fully adopts L.E.I. 98-02. This opinion also provides additional guidance to help attorneys in following the amended Rules of Professional Conduct. Again, there is no right or wrong answer for each factual situation that can arise in different cases. "Applicable law" needs to be reviewed prior to anyone taking temporary possession of physical evidence of client crimes.

APPROVED by the Lawyer Disciplinary Board on the 18th day of September, 2015, and ENTERED this 22nd day of September, 2015.

Robby J. Aliff, Chairperson
Lawyer Disciplinary Board

[1] L.E.I. 98-02 "When Lawyers Know About and/or Come Into Possession of Fruits or Instrumentalities of a Crime" is attached to this L.E.O. as an appendix.

[2] Rule 1.6. Confidentiality of information.
(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, disclosures is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice, or informal ethics advice from the Office of Disciplinary Counsel, about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of a client; or
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.