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2007 Formal Ethics Opinion 2

October 19, 2007

Taking Possession of Client's Contraband

Opinion rules that a lawyer may not take possession of a client's contraband if possession is itself a crime and, unless there is an exception allowing disclosure of confidential information, the lawyer may not disclose confidential information relative to the contraband.

Inquiry #1:

Defendant was arrested for drug trafficking and placed in jail. At the time of his arrest, Defendant was wearing a hat. The hat was confiscated by the police and put in the jail's repository for inmates' personal property along with Defendant's other clothes. Defendant was unable to post bond and remains in jail.

Attorney is appointed to represent Defendant. In an attorney-client consultation at the jail, Defendant tells Attorney that there is contraband hidden in the hat. It appears that the contraband has not been discovered by law enforcement or the jailers.

Attorney anticipates that Defendant will be convicted, probably by plea, and will be sentenced to prison. At that time, he will be asked about the disposition of his personal property. Personal clothing is not sent with inmates to prison; it is usually given to family or friends.

May Attorney take possession of the contraband for the purpose of destroying it, turning it over to the authorities, or giving it to a third party, such as another lawyer who would be subject to the duty of confidentially, to be delivered to the authorities?

Opinion #1:

No. Attorney may not take possession of an item that is contraband nor may the lawyer facilitate its transfer to any other person in furtherance of a crime.

A lawyer should not engage in criminal conduct under any circumstance and may not assist a client in conduct that the lawyer knows is criminal. See Rule 1.2(d) and Rule 8.4(d). If possession of an item is itself a crime, as in the case of contraband, a lawyer may not take possession of the item. Compare RPC 221.

Standard 4-4.6 of the ABA Standards for Criminal Justice, The Prosecution and Defense Function, 3rd ed. (1993), provides the following guidance:

(a) Defense counsel who receives a physical item under circumstances implicating a client in criminal conduct should disclose the location of or should deliver that item to law enforcement authorities only: (1) if required by law or court order, or (2) as provided in paragraph (d).

...

(d) If the item received is contraband, i.e., an item possession of which is in and of itself a crime such as narcotics, defense counsel may suggest that the client destroy it where there is no pending case or investigation relating to this evidence and where such destruction is clearly not in violation of any criminal statute. If such destruction is not permitted by law or if in defense counsel's judgment he or she cannot retain the item, whether or not it is contraband, in a way that does not pose an unreasonable risk of physical harm to anyone, defense counsel should disclose the location of or should deliver the item to law enforcement authorities.

(e) If defense counsel discloses the location of or delivers the item to law enforcement authorities under paragraphs (a) or (d), or to a third party under paragraph (c)(1), he or she should do so in the way best designed to protect the client's interests.

If there is a law requiring Attorney to disclose the location of the contraband to the authorities, Attorney must do so after notifying the client and explaining the legal consequences to the client. If there is no such law but the contraband is evidence in the pending case against Defendant or Attorney knows that there is a criminal investigation relative to the contraband, Attorney must discuss the matter with the client and recommend that the hat be surrendered to law enforcement, perhaps as a part of Defendant's plea bargain. If Defendant refuses and there is no law requiring disclosure to the authorities, Attorney may not disclose the location of the contraband to the authorities or anyone else unless an exception to the duty of confidentiality applies. See RPC 221.

Inquiry #2:

May Attorney disclose the location of the contraband to the authorities or to the family member or friend who is asked by Defendant to retrieve his personal property from the jail?

Opinion #2:

Rule 1.6(a) prohibits a lawyer from revealing information acquired during the professional relationship with a client unless the client consents, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by an exception set forth in paragraph (b) of the rule. The following exceptions might apply in this situation:

(b) A lawyer may reveal information protected from disclosure by paragraph (a) to the extent the lawyer reasonably believes necessary:

(1) to comply with the Rules of Professional Conduct, the law, or court order;

(2) to prevent the commission of a crime by the client;

(3) to prevent reasonably certain death or bodily harm; or

(4) to prevent, mitigate, or rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services were used.

With regard to the exception in Rule 1.6(b)(1), if there is a law requiring Attorney to disclose the location of the contraband, she must do so as noted in opinion #1 above. If disclosure is not legally required, Rule 8.4(d), which prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice, may permit disclosure if the contraband is evidence in the pending action against Defendant or the subject of a criminal investigation. See also Rule 3.4(a) (lawyer should not unlawfully obstruct access to evidence). If Attorney determines that this exception to confidentiality applies, Attorney should take steps to minimize the harm to Defendant. This would include encouraging Defendant to permit Attorney to use the information in plea negotiations.

The other exceptions to the duty of confidentiality may not apply. Whether the crime of actual or constructive possession of contraband is complete or continuing is a question of state or federal law; therefore, no opinion is expressed as to whether disclosure would be allowed to prevent the commission of a crime pursuant to Rule 1.6(b)(2). Unless the contraband is a weapon or some other dangerous item, disclosure is not necessary to prevent reasonably certain death or bodily harm as contemplated by the exception in Rule 1.6(b)(3). Finally, Attorney's services were not used to perpetrate Defendant's crime and disclosure is not necessary to rectify the consequences of Attorney's conduct as contemplated by the exception in Rule 1.6(b)(4).

Regardless of whether Attorney may disclose information relative to the contraband, Attorney must advise Defendant of the potential risk to a family member or friend who takes possession of the hat. Similarly, Attorney should advise Defendant of the legal and practical consequences of any course of action that he takes, including abandoning the hat and its contents.

No opinion is expressed on whether a lawyer with information about a client's possession of contraband is required to disclose that information to the tribunal in a plea hearing pursuant to the duty of candor in Rule 3.3. The resolution of this issue will vary substantially depending upon the facts of the particular case and upon the forum in which the lawyer is appearing. See, e.g., United States Sentencing Guidelines §3E1.1 (making it a condition of a plea that the defendant "truthfully [admit] or not falsely [deny] any additional relevant conduct for which [the] defendant is accountable").

 

 

 

 

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