LEO: Confidentiality and Secrets - Criminal  LE Op. 1202

 

Confidentiality and Secrets - Criminal Representation - Disclosure:

No Ethical Obligation to Reveal Evidence Which is not a Fruit of

a Crime.

 

February 22, 1989

 

You have advised that your client has been charged with possession of a

controlled substance with the intent to distribute. Your client's spouse,

whom you do not represent, has also been charged. Prior to their arrests,

a search warrant was issued for their home, a search conducted, and among

the items found were the alleged controlled substance and sizeable amount

of cash money. Both your client and spouse have been released on bond and

seizure proceedings instituted; however, a trial has not been scheduled at

this time.

 

After release, your client was allowed to return to the marital home to

collect certain items of personal property. While gathering a particular

item, your client discovered some cash money in a box which your client

removed and presently possesses. Your client revealed this information to

you and indicated that the amount of money involved appears to be a very

small amount. At your suggestion, your client has not counted nor

disturbed the money in any way.

 

You advise further that your client has no knowledge as to whether the

money in question is legitimate or perhaps the fruit of criminal

enterprise, and your client has indicated no prior knowledge of the

presence of the money until it was discovered by the client. However,

client's spouse has advised that the money was partially the proceeds of a

tax refund and some rental money which was being kept for the spouse's

sister.

 

You wish to know whether under the facts you have presented it is your

duty to both client and the legal profession to reveal any new information

or evidence gained during the course of the representation of your client,

which evidence cannot be identified by your client as fruits of the crime.

You have reviewed LE Op. 386, LE Op. 404, LE Op. 551 and LE Op. 709

and conclude that you would not be obligated to reveal the existence of

the cash money.

 

The appropriate and controlling rules relative to your inquiry are

Disciplinary Rules 4-101(B), 7-102(A)(3) and 7-108(A). The rules provide

that a lawyer shall not reveal a confidence or secret of his client; use

the same to the client's detriment; or use the same for the lawyer's or a

third person's advantage, except as provided in DR:4-101(C) and (D). (

See DR:4-101(B)) A lawyer shall not conceal or knowingly fail to

disclose that which he is required by law to reveal. (See DR:7-102(A)(3))

A lawyer shall not suppress any evidence that he or his client has a legal

obligation to reveal or produce. (See: DR:7-108(A) and LE Op. 953)

 

Whether the cash money that was found by your client is a fruit of

criminal enterprise is a legal question, and is thereby not within the

purview of this Committee. Since your inquiry indicates that you are

convinced that this recently discovered money is not a fruit of a crime,

then you would be under no ethical obligation to reveal it.

 

Committee Opinion February 22, 1989