mm. Section A(2)--Direct Evidence in the Lawyer's Possession
  i. Problem
   (1) Question (a);
    (a) The first issue in any such case is whether an attorney-client relationship existed;
    (b) Without such a relationship, the obligation of confidentiality under the Rules will not arise;
    (c) While there was no formal agreement, no payment of money, it would seem clear that the client, based upon the advice given, would assume such a relationship;
    (d) Thus, revelation of anything to the family of the watchman will involve revelation of information relating to the representation;
    (e) Is there an exception so authorizing?;
     (i) None that are express in the rules;
     (ii) No implied exceptions, other than as pertains to the physical evidence, considered below;
    (f) What about simply making an anonymous telephone call?
     (i) This enables the lawyer to have a heart;
     (ii) It also involves conduct that falls below the level of the rules;
     (iii) Even though such revelation might not be caught, the conduct is still impermissible;
    (g) Suppose, upon going out to the location, Barton discovers that the watchman is still alive–is there an exception?
     (i) Look at Rule 1.6(b)(1);
     (ii) You can see from the portion that was excised that under the 2001 version of this rule, there was no exception;
      1) The lawyer under the prior (b)(1) could reveal only to prevent a client from committing a criminal act likely to cause death or serious bodily harm–here the criminal act has already been committed;
      2) Now, the lawyer is permitted, but not required, to reveal when doing so will prevent reasonably certain death or substantial bodily harm–the current rule separates the criminal act from its consequences;
      3) Whereas the prior rule allowed the lawyer to reveal only the act; the current rule allows the lawyer to reveal the consequences, even if the act has already been committed;
   (2) Question (b):
    (a) The only difference between a and b is the possibility that b could involve testimonial compulsion, as where the lawyer is summoned to a grand jury investigating the disappearance;
    (b) If the lawyer is called to grand jury, the lawyer must assert privilege;
    (c) If judge is then contacted and lawyer is ordered to testify, rules say lawyer may then reveal;
    (d) If appeal is procedurally possible, lawyer should probably try to appeal;
    (e) If appeal substitute is available, such as action for prohibition (to prohibit the judge from ordering certain questions to be answered), this should also be tried;
    (f) Generally, however, "final" order does not require the lawyer to be held in contempt before answering;
    (g) Related issue:  Length of Privilege--Suppose client kills him/herself--lawyer is not relieved from obligations of confidentiality nor is lawyer permitted to waive the client's privilege upon client's death.  This is true even though the agency relationship of attorney-client is terminated upon the death of the client/principal;
   (3) Question (c):--physical evidence (canvas bag, keys, photos taken by lawyer);
    (a) Are these confidential within the meaning of Rule 1.6?
    (b) Yes; they relate to and were obtained in the course of the representation;
    (c) Are they privileged?
    (d) No; they are all physical and will not necessarily qualify as "communications" for privilege purposes;
    (e) They are thus subject to compelled demand by any lawful authority;
    (f) They gain no greater protection in hands of lawyer then they would have in hands of client
    (g) The only possible exceptions are the photos
     (i) These are lawyer's work product and may require some higher showing before being compelled from lawyer;
    (h) The second part of the question asks if Barton should do anything with these items independent of some compulsion?
    (i) This raises lessons from Armani, Belge, and Stenhach;
     (i) Armani and Belge are part of same case, the case of Robert Garrow's lawyers;
      1) The lawyers are told by their client of past murders he committed  and location of at least one of the bodies;
      2) The lawyers investigated and found a body where the client said it would be;
      3) The lawyers rearranged the body and took photos of it; but left the body where it was;
      4) The lawyers refused comment on the murders, other than to tell the parents of one of the victims they knew their daughter was dead;
      5) All of this came out at trial on the client's attempted insanity defense;
      6) The lawyers were then charged with failing to give a body a proper burial;  thus implying that what they knew should have been turned over;
      7) Was what the lawyers were told confidential or privileged?
       a) It was both;
       b) It was privileged because it came from a client communication;
       c) What the lawyers observed then, based on this communication, is probably also privileged
       d) Thus, the  lawyers could not reveal and were protected from a criminal charge;
      8) The lawyers did do one thing wrong--they told parents they knew daughter was dead;
      9) There was no exception that allowed this disclosure;
      10) There was no waiver of privilege by client, as Note 1 following Belge indicates;
      11) What about the  court’s statement that it would have had more difficulty with a charge of “obstruction of justice?”  Note 2, following Belge;
       a) The New York Penal Law, section 5 makes it a crime to suppress, “by any act of concealment ... physical evidence;”
       b) By discovering this evidence and then telling no one about it, didn’t the lawyer “conceal” that evidence?
       c) Aside from the criminal violation, would not telling be an ethics violation for the lawyer?
       d) Rule 8.4(b), (c), and (d) make it unethical for the lawyer to commit a criminal act that adversely reflects on lawyer’s trustworthiness, or engage in conduct that involves deceit, or engage in conduct that is prejudicial to the administration of justice;
       e) Thus it would be unethical for the lawyer to violate the New York criminal law;
       f) What problems exist with that?
       g) The lawyers in Armani and Belge  were  simply trying to confirm what the client told them by way of privileged communication;
       h) We’ve already said that what the lawyers observed as a result of the privileged communication was probably also privileged;
       i) How can the lawyer be unethical for maintaining privileged communications?  That is part of the point in the next case;
     (ii) Commonwealth v. Stenhach;
      1) Lawyers represented defendant accused of murder;
      2) Met with client and investigator;
      3) Client told the lawyers about the murder;
       a) What issue immediately arises?
       b) Whether these conversations are "privileged" in light of fact that investigator was there;
       c) Privilege will extend to employees of the attorney;
      4) Client and investigator drew map of where part of the rifle was located, investigator went out, got the stock for the rifle and returned it to lawyers;
       a) This case then differs from Belge in that lawyer/or person acting for lawyer has here removed the evidence;
      5) Balance of rifle was not found by investigator--was found by State and introduced at trial;
      6) At trial, prosecutor asked investigator about rifle;
      7) Objection on privilege grounds was overruled;
      8) Investigator testified and stock of rifle was returned;
      9) After trial, prosecutor charged attorneys with hindering prosecution and other criminal violations;
      10) Court first looks at statute dealing with hindering prosecution and indicates that it is reviewing the statute for possible over breadth;
      11) Court refers to cases from other jurisdictions;
      12) State v. Olwell;
       a) Attorney held in contempt for failing to answer questions and produce weapon;
       b) Court held the attorney has a duty, on attorney's own motion, to turn over the physical evidence;
       c) Can withhold it for reasonable period of time, but ultimately must turn over;
       d) It is not privileged;
       e) But State must take extreme precaution when introducing the evidence to prevent source of evidence from becoming known to finder of fact;
      13) People v. Meredith,
       a) Investigator for lawyer found and removed wallet from the crime scene;
       b) The wallet was a vital link in the chain of evidence needed to lead to the defendant;
       c)  Ultimately, lawyer turned wallet over to the police;
       d) The wallet was confidential because related to representation;
       e) The wallet not privileged because not a communication;
       f) When removed or changed, lawyer deprives state of opportunity to observe evidence in original condition;
       g) 9th Circuit. case of Clutchette v. Rushen, is similar in that the investigator removed physical evidence, but turned it over to police.  There was not a constitutional prohibition against introducing the evidence, but the prosecutor had to take care not to reveal the source of it;
      14) People v. Lee,
       a) The defendant's wife gave evidence to the lawyer who gave it to a third party;
       b) Court allowed search warrant to find and allowed testimony as to source;
       c) There is no privilege here, because, even though communication, it was not from client;
      15) Morell v. State is similar;
       a) A third party brought physical evidence to the lawyer;
       b) Because it did not come from the client, and because it is not a communication, it is not privileged;
       c) Ethics committee, upon attorney's request for advisory opinion, told lawyer to turn it over;
       d) What is there that compels this duty to turn over the evidence?
       e) Is the evidence "information relating to the representation?”
       f) Certainly, and all the courts recognize that fact;
       g) There is no express exception in Rule 1.6;
       h) There is no implied exception?
       i) No other rule permits or require it?
      16) Stenhach does not mention it, but all of these cases discuss the kind of criminal statute like that under which these lawyers are charged;
      17) Like the New York penal law, Note 2 following Belge;
      18) In Belge, the court said it would have difficulty if the lawyers were charged under a “hindering” statute, but in Stenhach, the court has no such difficulty--
       a) The Stenhach court holds that the criminal statute under which the lawyers were charged is unconstitutionally overbroad when applied to attorneys;
       b) And does so for the same reasons we discussed earlier–if the client gave the attorney a handwritten note detailing the client’s participation in a crime, the lawyer would be guilty of hindering if he concealed the note.  At the same time, however, the attorney is prevented by privilege from revealing that note;
       c) In Note 2 following Stenhach, you can see this aspect of the court’s decision has been criticized for its own overbreadth–wouldn’t it have been easier for the court to simply say the lawyers’ cannot be guilty of “hindering” if what they held was privileged?
       d) The court is thus finding that this statute is unconstitutional when applied to attorneys–and is doing so largely on the basis of the court’s inherent power;
       e) At the same time, however, the court does not let the lawyers off the hook–particularly in light of the cases referred to by the court.  Instead of relying on the criminal statute, the court exercises its inherent power and imposes a duty on lawyers along the lines of the holdings in the cases it discusses;
      19) Duty imposed by the court is based upon a synthesis of all of the cases cited and discussed by the court;
       a) A lawyer may keep physical evidence for reasonable time for examination;
       b) The lawyer may then return the evidence to its source if that can be done without altering, destroying or concealing the evidence; or impairing its verity or availability;
       c) Otherwise, the lawyer  must turn the evidence over to state;
       d) The state may use the evidence, information relating to condition, location and discovery;
       e) But, the state cannot use source of evidence;
     (iii) Let’s consider the returning evidence to its original location option–and here look at Note 3 following Stenhach;
      1) If you have taken the evidence, then had it tested, then tried to return it, can it ever be in the same condition?
      2) You can see that the drafters of the Restatement agreed with those who thought the evidence could not be in the same condition;
     (iv) How does lawyer turn evidence over?
      1) The name of the client is not generally privileged--except where name provides last link to crime, as indicated in the earlier Notes on privilege;
      2) Thus, prosecution would generally be entitled to obtain name of person who gave material to lawyer;
      3) Whenever lawyer has permission or obligation to reveal confidential information, the lawyer must still preserve confidentiality to the extent possible;
      4) One way might be for lawyer to hire another lawyer for limited purpose;  following example of Dean v. Dean:  the  second lawyer would know the name of the first lawyer, but not the name of the client;
   (4) To summarize, in question (c) in our problem;
    (a) Bag and contents are evidence and must be turned over either because state statute or because of implied obligation arising in Stenhach;
    (b) Keys are evidence linking client to crime--like the wallet in Meredith, and must also be turned over;
   (5)  That leaves only the photographs–certainly they are not communications and are not therefore privileged–but they could be considered work product of lawyer and therefore subject to higher showing of need;