Professional Responsibility
Review of Class of 3/10/2005


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;