Law professors love to torture their students with this scenario: The client, a defendant in a murder case, comes to your office with a brown paper bag. He hands you the bag and says, “You decide how to deal with it.” Of course, the existence of the gun might be extremely damaging, and you never want it to surface. While you can neither toss it into the sewer nor tell your client to do so, it certainly does you no good for your client to take the gun home. Taking into consideration a lawyer’s legal and ethical responsibilities, as well as his defense strategy, the defense counsel’s decision-making here will be difficult at best.1
Nowadays, however, the more typical situation that likely keeps the criminal bar awake at night is where the client comes to his lawyer with evidence actually helpful to his defense, but which he obtained by (likely) violating the law—whether by traditional theft or, these days, via computer hacking. For a lawyer may expose himself criminally, or at least ethically, if he tries to use the evidence so obtained, thereby acknowledging its existence. Using the evidence could also expose the client to additional criminal liability. Then too, the possibilities that a court may rule the evidence inadmissible and that the lawyer may risk discipline or even prosecution, may factor into whether the attorney decides to “surface” the material.
Assume, then, that the client, Joe Dirtbag, has just been fired by Corporation X for embezzlement. Outraged, Dirtbag (or his agent) downloads proprietary financial information to which Dirtbag should not have had access—from X’s computer system. The downloaded information reveals email communications between X’s key executives, general counsel and chief accountant, and points to an arguably criminal plot to defraud the SEC and X’s shareholders. This information could potentially be quite valuable in helping to defeat a conviction or even a prosecution.
Alternatively, suppose Dirtbag, anticipating that his embezzlement would soon be uncovered, lifts (or has his confederate lift) exculpatory hard copy documents from Corporation X. Dirtbag wishes to tender to his lawyer these hard copy materials. And let’s say that before handing these materials over, Dirtbag actually tells his lawyer what he has and how he obtained it. Deciding what to do as Dirtbag’s lawyer in such situations is indeed difficult.
Is Taking Possession Criminal?
As Michael Ross, an ethics and criminal law attorney who formerly served as assistant U.S. attorney in the Southern District of New York, pointed out in his presentation at the 2012 Fall Bench & Bar Retreat, an attorney who accepts stolen physical evidence from his client may indeed open the door to his own criminal liability.2 In New York, a person is guilty of criminal possession of stolen property in the fifth degree—a Class A misdemeanor with a potential one-year jail sentence—when he knowingly possesses stolen property with the intent to benefit himself or another person and to impede recovery by the property’s owner.3
As a result, a lawyer who knows that the property his client handed over is stolen risks being charged with criminal possession of stolen property, not to mention potential criminal liability for his client.4
Beyond the potential criminal problem is the lawyer’s ethical duty in such situations. How ‘up front’ must a lawyer be with opposing counsel or the tribunal when the defendant hands him something, as Dirtbag proposes to, that the defendant shouldn’t have?
Where the evidence is harmful to the defense, the lawyer may not conceal property on behalf of a client and allow the client to testify falsely as to its location. Where this has happened in New York, disciplinary proceedings have been instituted and the attorney was disbarred.5
Suppose, however, the evidence in question is a potentially helpful piece of documentary evidence, and not something created in the course of an attorney-client consultation.6 The question arises whether the attorney is ethically obligated to return the property. The New York State Bar Association Committee on Professional Ethics says “Yes.” Opinion 530 considered a case in which a client provided his attorney with a piece of documentary evidence that the client’s friend had “surreptitiously removed” from a police station. The committee reviewed various New York penal statutes and concluded that a lawyer is ethically obligated to return the evidence where the law prohibits the willful possession of stolen property, as in for purposes of concealment.7
May the attorney continue to hold the physical evidence until a court orders its surrender? The answer appears to be “No.” A 1986 Pennsylvania Superior Court case, apparently still good law today, rejected the appellants’ contention that their conduct was proper and that they had no duty to deliver a rifle stock to the prosecution until they were ordered to do so.8 The court explained that
a criminal defense attorney in possession of physical evidence incriminating his client may, after a reasonable time for examination, return it to its source if he can do so without hindering the apprehension, prosecution, conviction or punishment of another and without altering, destroying or concealing it or impairing its verity or availability in any pending or imminent investigation or proceeding. Otherwise, he must deliver it to the prosecution on his own motion. In the latter event, the prosecution is entitled to use the physical evidence as well as information pertaining to its condition, location and discovery but may not disclose to a fact-finder the source of the evidence.9
Do an attorney’s ethical obligations change when documents that come into his possession at once have the potential to make a difference in a pending case and are simultaneously intended to be concealed from the public?
The NYLJ recently reported on a Sept. 21, 2012, Eastern District limited unsealing order in which Judge I. Leo Glasser permitted a prosecutor to review documents under seal in advance of an Oct. 2, 2012, hearing regarding the continued sealing of the documents.10 The order was issued in connection with arguments heard by Glasser in 2010. Then, the attorney representing the John Doe whose record of conviction was revealed argued that opposing counsel had stolen the documents—documents that records indicate were obtained through the assistance of a former client with whom the John Doe had worked.11 The John Doe’s attorney argued that, as an attorney himself, opposing counsel had an “ethical obligation” to “not disseminate or use information that is secret, private and confidential, that came into his possession.”12 Glasser himself was highly critical of the opposing counsel, suggesting that the attorney may have violated an ethics rule by attaching the presentence report to the complaint.13
Room for Interpretation
Despite concerns regarding the reliability of the evidence and the protections afforded to defendants under the exclusionary rule—which prohibits using illegally obtained evidence against criminal defendants at trial—there may indeed exist loopholes that allow the admission of illegally obtained evidence when such evidence favors the criminal defendant.
In a 1982 New York City Bar opinion, the Committee on Professional Ethics concluded that an attorney is not ethically barred from using evidence that may have been illegally obtained, as long as opposing counsel is made fully aware of the circumstances surrounding the obtaining of the evidence.14 The ethics opinion concerned a defendant who had removed files pertinent to his case from the office of the plaintiff’s attorney following a deposition.15 The majority of the files were returned that evening, after the plaintiff’s attorney, having discovered what had occurred, demanded that the defense attorney return the missing files.
It turned out, however, that the defendant had retained some documents that contained information damaging to the plaintiff. Although defense counsel returned the remaining files to plaintiff’s counsel, he retained copies for himself. The committee concluded that because plaintiff’s counsel had “full knowledge of what occurred,” including the existence of the photocopies, “nothing in the Code of Professional Responsibility prevents the inquiring attorney from using the copies of the documents retained by his client or the information contained in them.”16 As the committee noted, however, this fact-specific conclusion was reached because plaintiff’s counsel had the necessary information to seek a judicial determination of the legal questions concerning the use of the documents and the information they contained.17
Similarly, the Philadelphia Bar Association Committee on Legal and Professional Responsibility decided in 2001 that defense counsel had fulfilled the requirements of Rule 3.3 of the Pennsylvania Rules of Professional Conduct—”Candor Toward the Tribunal”—in disclosing to the judge and opposing counsel his receipt of potentially legally obtained surveillance records from his client in a Workers’ Compensation action.18 Even so, just as in the 1982 New York City Bar Committee on Professional Ethics opinion discussed supra, the Philadelphia Bar Association Committee on Legal and Professional Responsibility declined to address the admissibility of the evidence, concluding that “the final determination concerning admissibility is within the sole discretion of the judge, who considers the law when making a ruling.”19
Although these opinions seem, facially, to unduly burden plaintiffs’ counsel (requiring counsel to take action in order to ensure the exclusion of the evidence), like it or not, and whether or not they are intended to do so, they arguably balance the playing field between the parties and, dare we say it, provide an opportunity for exculpatory evidence to come to light. That said, the ethical opinions shy away from announcing a blanket rule when it comes to such evidence, given their advisory nature and their lack of binding authority on courts and disciplinary boards.
In our computerized age, gadgets like iPads, data phones, Kindles, and laptops contain a wealth of information that could potentially exculpate (at least) a white-collar criminal defendant. Aside from the potential criminal and ethical problems defense counsel face in receiving and using illegally obtained evidence as part of their advocacy, does this helpful (if tainted) evidence actually get in? Judicial decisions on computer hacking seem divided on the issue, in part because “computer hacking” seems to mean different things to different people.20
In a 2009 litigation between divorcing spouses, the court held that even where the wife improperly accessed her husband’s computer to obtain the email communications she later annexed to a discovery motion regarding the husband’s income, she had not violated New York’s Penal Law provision prohibiting the illegal interception of communications, and so, because the emails were not otherwise privileged, they would not be suppressed.21 By contrast, the Third Department suppressed emails between a husband and his attorney because they were protected by the attorney-client privilege, finding this a sufficient remedy and choosing not to disqualify the wife’s counsel, who had taken possession of and sought to use the improperly accessed emails.22
The aforementioned electronic hacking-type cases should be compared with cases in which the information helpful to the defendant’s case is obtained in hard copy format. For instance, the Appellate Division of New Jersey’s Superior Court refused in 2009 to permit the use of 1,800 pages of confidential information obtained without authorization by a female former human resources employee who filed a gender discrimination and retaliation action following the promotion of a male colleague, allegedly in her stead.23 The court indicated that permitting the use of these documents “could have the undesirable effect of encouraging employees to go through their employers’ files and copy confidential material, secure in the knowledge that employers could do nothing so long as the material was later used in litigation.”24
Representing criminal defendants is not for the faint of heart—a certain mix of courage and skill are needed to balance the duty of “zealous advocacy” with the requirement of “candor toward the tribunal.” So, to finally answer the professor’s question, what should a law-abiding defense attorney do when faced with helpful, but illegally obtained evidence?
Since each situation is unique, published guidelines recommend that attorneys seek the advice of other members of the criminal defense bar.25 The ethics opinions consulted for purposes of this article seem to universally preach disclosure to opposing counsel, and to the court, if applicable. The conclusions reached in these opinions are in keeping with Rule 3.3 of New York’s Rules of Professional Conduct. Specifically, Rule 3.3(b) requires that “[a] lawyer who represents a client before a tribunal and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”26
And what is a defense attorney to do if the client refuses to consent to the disclosure? Of course, the attorney should explain the legal requirements that prevent the attorney from accepting and retaining the evidence.27 If the client refuses to grant consent or if the client feels that continued representation by this attorney is not in the client’s best interest, the attorney might be well advised to seek leave of the court to withdraw from the representation.28 In other words, “protection” is a two-way street as far as the criminal law is concerned. Where the law does not provide for a method to return the evidence, illegally obtained evidence does have the potential to come in…but not until the evidence has cleared the hurdles of inspection and consideration by opposing counsel and, if applicable, the judge.
Joel Cohen, a former federal and state prosecutor, is a partner at Stroock & Stroock & Lavan and teaches Professional Responsibility as an adjunct professor at Fordham Law School. Yevgenia S. Kleiner, a Stroock associate, assisted in the preparation of this article.
1. Parenthetically, the law professor likely won’t tell his students the complete truth of how he, as a real-world lawyer hoping to zealously protect his client, would handle the situation, i.e., through the talmudic nuances of not exactly telling the client to “lose the gun.”
2. See Michael S. Ross, Monograph on Issues of Ethics (Sept. 23, 2012) (unpublished manuscript) (on file with author).
3. N.Y. PENAL LAW §165.40
4. See N.Y. PENAL LAW §15.05(2). Theoretically at least, the criminal attorney’s sneaking suspicion that the property he accepts from his client was stolen can get him into trouble—even when the property is not, in fact, stolen—because an individual’s mere belief makes him vulnerable to charges of attempted criminal possession of stolen property. See People v. Zaborski, 59 N.Y. 2d 863 (1983).
5. See, e.g., In re Abuza, 178 A.D. 757, 166 N.Y.S. 105 (1st Dept. 1917) (lawyer disbarred for concealing jewelry and allowing client to testify falsely to its location). Attorneys who pursue access to restricted information likewise place their licenses in jeopardy: prominent Capital Region criminal defense attorney Terence Kindlon was censured in September 2012 by the Committee of Professional Standards for the Third Department for photographing a document on an Albany County prosecutor’s table last year and was cited for his “undignified and/or discourteous conduct” Matter of Kindlon, D-4312 (App. Div. 3rd, Decided Sept. 27, 2012).
6. This distinction is especially important in New York, where the Court of Appeals concluded that privilege barred an attorney’s disclosure of the locations where the bodies of two young women were buried. People v. Belge, 372 N.Y.S.2d 798, 803 (Onondaga County Ct. 1975), aff’d, 50 A.D.2d 1088, (4th Dept. 1975), order aff’d, 41 N.Y.2d 60 (1976).
7. See N.Y. State Bar Assn. Op. 530 (April 1981), 1981 WL 27591 (1981).
8. Com. v. Stenhach, 514 A.2d 114, 123 (Pa. Super. 1986).
10. John Caher, “High Court Seeks Views on Gag, Evasion of Mandated Constitution,” NYLJ, Sept. 25, 2012, at 1, col 3.
11. Id. The attorney representing opposing counsel argued that his client merely received allegedly stolen information and that it would be a violation of his client’s First Amendment rights to hold that speech by a “law-abiding possessor of information” could be suppressed in order to deter the conduct of a non-law abiding third party. Id.
13. See id. Meanwhile, the opposing counsel who revealed the identity of the John Doe by attaching a presentence report and other identifying information to a complaint, despite the fact that the John Doe’s record of conviction was sealed due to his past cooperation with the government, has been gagged by the U.S. Court of Appeals for the Second Circuit and other courts and faces a criminal contempt probe. Id.
14. See New York City Bar, Op. 82-21 (1982).
15. See Ross, supra n.1.
16. See ,Op. 82-21 (1982).
17. Id. But see Opinion 07-1 of the Florida State Bar Association Committee on Professional Ethics, which concluded that a lawyer whose client provided him with wrongfully obtained hard copy and electronic documents was obligated to consult with a criminal defense lawyer about the client’s actions and to advise the client that the opposing party would need to be notified before the documents could be reviewed, retained, or used. FL Eth. Op. 07-1 (2007).
18. See Phila. Eth. Op. 01-10, 2001 WL 1411587 (Nov. 2001).
19. See id.
20. See Ross, supra n.1.
21. Gurevich v.Gurevich, 24 Misc.3d 808, 813 (Sup. Ct. Kings Co. 2009).
22. See Parnes v. Parnes, 80 A.D.3d 948, 951 (3d Dept. 2011).
23. See Quinlan v. Curtiss-Wright, 409 N.J.Super. 193, 208 (Sup. Ct. N.J. 2009).
25. See John Wesley Hall, Jr., Prof. Resp. Crim. Def. Prac. 3d §28:60 (2012).
26. See N.Y. RULES OF PROFESSIONAL CONDUCT R. 3.3(B) (2009).
27. See NY Eth. Op. 530 (1981), 1981 WL 27591 (April 1981).
28. See id.; see also FL Eth. Op. 07-1, 2007 WL 5404933 (September 2007).