The Champion

December 2010 , Page 16 

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Ethics and Advocacy Dilemmas — Possessing Evidence of a Client’s Crime

By Evan A. Jenness

Criminal defense lawyers help clients and safeguard their secrets. They also must follow the law. These obligations collide when a lawyer acquires tangible evidence of a client’s crime, leaving counsel to walk a fine line between protecting a client and avoiding wrongdoing. Potential risks a lawyer faces include state bar proceedings, sanctions, ineffective assistance, malpractice and spoliation claims, and even criminal charges.

What should counsel do? The first step is to locate state rules of professional conduct. The second step is to evaluate the type of evidence and how it was acquired because this usually dictates the statutes, rules, and case law that could apply. Simply possessing certain types of evidence is a crime, and an array of federal and state criminal statutes punish obstruction of justice, evidence tampering, and related offenses. Discovery rules and court orders in pending proceedings also may apply, and various laws impose civil and evidentiary sanctions for conceal

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