The Great Change: Turning Cathy into a Lawyer

I have no problem with this rule...

The point of the self-incrimination rule is to prevent coerced confessions, and the point of the search and seizure rule is to keep the authorities from unjustly searching the property of the innocent.

Protecting a "smoking gun" delivered to an officer of the court achieves neither of these goals, and potentially makes lawyers a favorite depository of physical evidence (similar to how the tobacco companies have sought to use their legal departments as depositories for all of their scientifice research).

Having the rule the way it is ensures that lawyers won't let their clients give them physical evidence. Thus, it keeps lawyers honest.

Mark

You may have no problem with this rule, but I still do. Furthermore, you've missed the essense of my argument, which is not that attorneys should necessarily have the ability to indefinitely shield evidence but that there should be procedural safeguards, or "triggers," that would dictate when he would need to divulge it.

But I think you are right that the rule as it stands "ensures that lawyers won't let their clients give them physical evidence." If I were a criminal defense attorney, I would never take anything. Unfortunately, I think such unilateral refusal runs counter to the policy goal of zealous advocacy. To be a successful advocate there needs to be some candor and fluidity to the attorney-client relationship. A unilateral refusal to safeguard evidence would not serve that interest.

Also, if "the point of the search and seizure rule is to keep the authorities from unjustly searching the property of the innocent," forcing the attorney to automatically turn over evidence of an innocent client (and remember, they are all presumed to be) undermines that purpose. If the police could not otherwise legitimately get that evidence, attorneys should not be forced to provide them with it.

And by the way, if this rule is really the only thing "keep[ing] lawyers honest," then we have much bigger problems with our system of justice than this rule could possibly solve.

I shouldn't have said that this "keeps lawyers honest." In fact, it just keeps them "more honest", as the truly dishonest lawyers will just ignore the rule. However, by causing lawyers to blanket refuse to accept physical evidence from their clients, it does permit the honest lawyers to say out of the ethical quagmire that would be caused if they did hold on to physical evidence.

As for your suggestion that lawyers be allowed to hold onto physical evidence until a supeana issues against them, I think that this suggestion has serious practical problems.

First, it means that the government would be routinely issuing supeanas against law offices. A search of a law office is a big deal, because law offices contain so much information that genuinely is priviledged. You just don't want to have thc cops routinely searching law offices (see this site for a description of the safeguards required for such searches in California http://calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10172&id=1355)

Second, if a warrant were issued against a lawyer, I suspect that this would cause sufficient divergence of interest to require both the lawyer and the client to get separate ocunsel, and might cause the lawyer to need to cease representation of the client.

Third, what I suspect would actually happen is that a guilty suspect (lets say a murderer with a smoking gun) would deposit the gun under priviledge with one lawyer (lawyer A) and then use a different lawyer (lawyer B) for his defense. Lawyer B wouldn't have the gun or know about its whereabouts when receiving the warrent. The suspect wouldn't tell the authorities about lawyer A. What would lawyer A's ethical obligation be?

The effect of this rule is not to cause lawyers to sneekily turn over evidence to the police, but to cause lawyers to refuse to take custody of evidence from their clients. That, to my mind, is a good thing. Like most of the ethics rules, this rule is intended to limit unfettered zealous advocacy in order to permit things to function and to meet other important social goals.

Mark

Where are you getting me advocating the issuance of search warrants against lawyers' offices? I'm talking about an order to produce or some such mechanism like that. The lawyer would maintain his role as the client's advocate in responding to them, and by having an external process to address when evidence should be disclosed it would extricate attorneys from the "ethical quagmire" they currently find themselves in.

As you say, under the current schema no lawyer would ever want to take evidence from a client. But I reiterate, is that the course of action we really want lawyers to be forced to take? In addition to the client's concerns that get compromised by the refusal, what if the lawyer had reason to suspect that if he refused to take the evidence the client would destroy it? Suddenly lawyers might actually want to take that evidence, or even be obligated to take that evidence. Of course, once they do, the client's due process rights are immediately compromised. We need a better situation that protects both the evidence and the client's due process rights. Right now the latter is too subordinated to the former and it puts lawyers into an impossible bind that inhibits their ability to be zealous advocates for their clients.

1. Certainly either of us can come up with occassional situations where it might be useful for an attorney to hold on to evidence. But having an absolute rule absolves attorneys from trying to determine whether or not their situtation falls into an exception. Thus, it serves the profession (and the public) well by setting up an absolute expection of how lawyers will act.

2. I don't see how the current law puts lawyers into an "impossible bind." They just refuse to take the evidence. This seems very similar to the position lawyers are put into with respect to factual (non-physical) evidence by the fact that they can't know that their clients are lying on the stand.

3. During the investigation stage of a crime, the police rely on warrants, as their is no action in which to have an evidentiary motion. Do you contend that evidence left by a client at their attorney's office should have more protection than evidence in the client's home? And, if so, wouldn't that make lawyers regularly become a depository for evidence.

This seems to me like a place where an absolute rule makes a lot of sense...

Mark

If an absolute rule is necessary to govern the profession (a proposition itself worthy of its own debate), then the better rule would be the opposite of what it is now. As long as our system of justice is premised on the philosophy "better ten guilty men go free than one innocent man be punished" (or however it is commonly phrased), it is better to err on the side of greater protection for the rights of the accused than to tolerate its evisceration, no matter how reasonable the interests such abandonment might promote.

However, what I'm proposing is an alternative to any all-or-nothing rule. A triggering mechanism as part of due process that could toggle the lawyer's evidence protection ability would protect both the police's interests in effective investigations and the client's Constitutional rights, while at the same time eliminating many of the ethical quandries lawyers currently face, trying to juggle both their clients' interests and those of the police. By creating a mechanism within the process for the latter to be promoted attorneys could then be freed up to focus exclusively on their role as a zealous advocate of their client.

It sounds like an additional layer of court involvement and litigation, without much of a benefit.

Can you explain to me a situation where an innocent person (or even a guilty one) would be worse off as a result of the rule that he or she can't deposit incriminating physical evidence with his or her lawyer? Remember, this rule (as I remember it, this isn't my branch of law) doesn't extend to discussing the incriminating evidence, only to handing it over.

I don't feel like my rights are especially infringed upon by the fact that I can't leave stuff with my lawyer-- so I can't imagine what the problem is with the existing rule. Especially since without the rule it seems to me that guilty folks would always leave everything with their lawyer-- which would be a major problem.

Mark

Incidentially-- I'm having trouble understanding how your court order system would work in the case a suspect deposits the evidence with some lawyer uninvolved in the case.

How do the police find such a person?

Mark

If there is any reason to give evidence to the lawyer as opposed to leaving it at home, where it would have 4th Amendment protections, then those protections should extend to the lawyer's custody.

My professor had raised the concern of evidence destruction as one such reason. If the client came in and said, "I'm going to chuck the gun into the river," the lawyer would be obligated to try to prevent that from happening. Holding the evidence should be a solution to the problem, but it's not if by doing so it results in an automatic disclosure to the police. Also, there could be situations where leaving the evidence in a home or office would leave it vulnerable to theft or destruction, either inadvertant or purposeful. Locations where the client does not have exclusive control raise this concern, and it makes sense to give it to the lawyer in order to protect it. No one knows if the police will come knocking the next day, next week, next year or never. The attorney is in a much better position to protect the evidence indefinitely.

But even if with this new rule "guilty folks would always leave everything with their lawyer," as I keep saying, it wouldn't really be a problem because the police would still have a means of getting it. The only issue I see is that the removal itself might result in destruction of evidence. To the extent that's true the attorney might counsel against it. But I suspect such destruction happens all the time: if you shoot someone and don't then drop the gun at the scene, are you also guilty of destruction of evidence? Criminals often relocate evidence in the furtherance of their crimes. Would it be better if they didn't? Sure, but it would be better if they didn't commit the crime in the first place. In the larger picture, relocating evidence, particularly in a way that inherently protects it from destruction, is really a very minor concern. Due process is a much bigger one.

Cathy...

I think that you have done a good job here of dodging my questions, rather than answering them.

I asked two questions:

1. How would an innocent person (or indeed any person) be prejudiced by a rule prohibiting him from depositing physical evidence with his lawyer and

2. If the courts did adopt your rule that lawyers can accept physical evidence, subject to disclosure upon court order, how would the police access evidence held by an otherwise univolved lawyer, and what would that lawyer's duties be with respect to the evidence.

You answered (and I apologize for my paraphrase) with:

1. the "chuck in the river" concern

2. an assertion that a lawyer's office is a safer place to keep evidence than a person's home

3. a straw counter argument that the rule, as it exists, protects evidence from the damage occuring as the evidence is moved.

These arguments don't strike me as particularly strong because.

1. The first argument isn't an argument about how a client would be prejudiced by the existing rule, but is really an argument about why your alternate rule might be better for the justice system. I am willing to accept that a certain amount of additional evidence is destroyed by client's bad acts as a result of the absolute rule, rather than open the quagmire of lawyers becoming despositories for physical evidence. It is hard for me to see an argument that a suspect is seriously prejudiced by the fact that after discovering that his lawyer can't take evidence, and after being advised by the lawyer not to destroy evidence,the suspect chooses, by his own action, to destroy the evidence. I don't see how one can be prejudiced by one's own clearly bad act.

2. A lawyer's office may be a safer place to hold evidence than a client's home. On the other hand, there are lots of places that are far safer than a lawyer's office, such as a safety deposit box. Therefore, since a client has options for safeguarding evidence other than a lawyers office, I see no reason to make such offices depositories for physical evidence.

3. I don't argue that the reason for the rule is to prevent folks from damaging evidence as they move it to the lawyer's office. The point of the rule is to keep lawyers from becoming evidence depositories for hiding things from a police search warrent and to keep lawyers from having in their possession a smoking gun that would neither be work product nor a priviledged _communication_.

I think you underestimate the reality of my "evidence depository" concern. I can easily see where, under your rule, every gun used by a member of the mafia would end up in a lawyer's safe, where it would neither be discovered by the execution of a search warrant against the wrongdoer's home, nor be discovered in all of the random ways the police find discarded weapons (ie washing up from a river, in the trash strean, etc). If there are exceptions to the no-acceptance rules, then well-educated clients will assure that the execption applies to anything they want to deposit.

Mark

If I'm dodging your questions it's because I've already answered them many, many times. The only exception to that might be your second question, to which I would say that there would be no such thing as an uninvolved lawyer. Once he accepted evidence he would inherently be involved.

By the way, there is no rule to not accept evidence. The problem is that other rules requiring automatic disclosure of any accepted evidence put the lawyer into an ethical bind that he should not have to be in. I'm trying to ease that pressure, not dictate that an attorney must or must not accept evidence. Other rules and realities govern that decision.

In effect, there is a rule not to accept evidence, since no lawyer will accept evidence knowing that he will have to turn it over. That's the point of the rule.

As fir what you've "answered many many times"-- all I have seen is some relatively vague assertions that this rule prejudices clients because it "harms trust." I was hoping you could be more specific about how this harms the relationship.

And, I honestly don't see how your court order would reach athird party lawyer whose only involvement was to hold evidence. How would the court (or the police) know that such a lawyer was holding the evidence... Would he ever see the warrant ordering that his client submit to a search?

I think its a bit naive to say that your proposed rule would release ethical pressure. As it stands now, all an attorney need do to remain ethical is refuse to take physical evidence-- and this is something the he, effectively, must do. With your proposed rule of individual jugement, the zealous advocate would constantly need to determine whether or nor he can ethically accept evidence. Under the current system, its easy-- if a client says "I want to leave evidence with your", the lawyer says "you know, if you give that to me, I have to turn it over to the police", and the client says "ok" and either has the lawyer give it to the police or takes the evidence back home.

This is much cleaner for the lawyers.

"As it stands now, all an attorney need do to remain ethical is refuse to take physical evidence-- and this is something the he, effectively, must do."

No, this isn't the case. Often to remain ethical the lawyer MUST take the evidence. Hence the conflict.

This is where you have me lost. Tell me when there is an ethical obligation of a lawyer to take evidence.

I suspect you are referring to the case where the client says "take it or I'll destroy it." But, if a lawyer instructs the client that if the client gives the lawyer the evidence then the lawyer will have to turn it over to the police, and then the client persists in insisting that the lawyer take the evidence despite this warning, then I do not see how the client is prejudiced. On the other hand, if the client chooses to not turn over the evidence after this warning, I don't see where the lawyer has an ethical obligation to take the evidence. Thus, no conflict.

If the only conflicting ethical obligation that you can identify is the general obligation of zealous advocacy-- I don't buy it. The whole point of the other ethical rules is that they place limits on zealous advocacy.