1. Direct Evidence in the Lawyer's Possession
a. Question a: If attorney client relationship
exists, lawyer is obligated to confidence under Rules and cannot reveal
without an exception;
i.If Barton discovers watchman still alive––can
reveal under Rule 1.6(b)(1); a substantial change from prior rule;
b. Question b: 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;
If so, then privilege apples––otherwise answer is still no, lawyer cannot
reveal;
c.Question c:--physical evidence (canvas
bag, keys, photos taken by lawyer); these are confidential, but not privileged;
Lessons from Armani, Belge, and Stenhach;
i.Armani & Belge tell us no general
exception;
(1)court would have difficulty with
law making it a crime to conceal evidence because lawyer cannot break law
under Rule 8.4;
(2)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;
ii.How lawyer can be unethical for maintaining
privileged communications is part of Commonwealth v. Stenhach;
(1)court holds that such a statute
is Constitutionally overbroad when applied to lawyers, but then, under
court’’s inherent power, still imposes a duty upon lawyer to turn over
direct evidence;
(2) Duty imposed by the court:
(a)lawyer may keep physical
evidence for reasonable time for examination;
(b)may then return to source
if it can be done without altering, destroying or concealing the evidence;
or impairing its verity or availability––this is impossible and Restatement
so recognizes;
(c)otherwise must turn it over
to state;
(d)state may use the evidence,
information relating to condition, location and discovery; but cannot use
source of evidence;
(e)To turn evidence over clearly
requires lawyer to breach confidentiality––so lawyer must exercise care
to protect client interest; Maybe hire a lawyer;