RI-390
February 16, 2024
SYLLABUS
Lawyers and their staff should only accept client property that is legal to possess and only when it relates directly to the underlying representation. Lawyers should not accept illegal property from a client prior to having a discussion regarding confidentiality, the lawyer’s duties to courts and opposing parties, and the lawyer’s obligation to hand over illegal property to the proper authorities. Prior to accepting any client property, lawyers must inform clients about the law regarding possession of their property and provide a straightforward assessment of the risks and consequences of maintaining said property so that clients may make an informed decision as to what to do with the property at issue.
References: MRPC 1.1, 1.2(c) and (d), 1.3, 1.6(b) and (c), 1.15(d), 1.16, 3.3, 3.4(a), and 8.4(b); RI-69.
TEXT
Lawyers routinely inquire about what they should do when a client or third person requests the lawyer or their staff to accept illegal property for safekeeping. They further wonder whether they have an obligation to accept said property, return it to the client, or release it to the proper authorities and, if the latter, what information they may provide to the authorities in light of their duties of confidentiality to their clients.
Implicated Rules of Professional Conduct
Rule 1.2. Scope of Representation…
(c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, but a lawyer may discuss the legal consequences 23 of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law.
(d) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer’s conduct…
Rule 1.6. Confidentiality of Information
(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:
(1) reveal a confidence or secret of a client;
(2) use a confidence or secret of a client to the disadvantage of the client; or
(3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.
(c) A lawyer may reveal:
(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;
(2) confidences or secrets when permitted or required by these rules, or when required by law or by court order;
(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client’s illegal or fraudulent act in the furtherance o which the lawyer’s services have been used;
(4) the intention of a client to commit a crime and the information necessary to prevent the crime; and
(5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer’s employees or associates against an accusation of wrongful conduct…
Rule 1.15. Safekeeping Property…
(d) A lawyer shall hold property of clients or third persons in connection with a representation separate from the lawyer’s own property. All client or third-person funds shall be deposited in an IOLTA or non-IOLTA account. Other property shall be identified as such and appropriately safeguarded…
MRPC 3.4. Fairness to Opposing Party and Counsel.
A lawyer shall not:
(a) unlawfully obstruct another party’s access to evidence; unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value; or counsel or assist another person to do any such act…
MRPC 8.4. Misconduct.
It is professional misconduct for a lawyer to:
(b) engage in conduct involving dishonesty, fraud, deceit, misrepresentation, or violatio of the criminal law, where such conduct reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer…
DISCUSSION
Lawyers are often asked by clients to hold on to property for safekeeping in the course of their representation. While lawyers are generally not required to accept client property, MRPC 1.15(d) requires property of the lawyer “to be kept separate from the property of the client…” when they opt to do so.1 However, if that property is illegal, lawyers must consider several ethical issues prior to accepting said property. Lawyers must balance their fundamental duties of preserving client confidences2 and safekeeping a client’s property3 with their obligation to not “unlawfully obstruct another party’s access to evidence.”4 They must also protect their own interests by ensuring that they do not “engage in conduct that might reflect adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer” by accepting property that is illegal to possess.5 All of the relevant ethical rules must be read together to assist the lawyer in determining whether to accept illegal property and, if it is accepted, how to ethically accept the property of the client while protecting themselves from unwillingly or unwittingly committing a criminal act.
Threshold Questions Prior to Accepting Client Property
Lawyer’s General Duty to Accept Property
Prior to accepting property, lawyers must first answer the threshold question of whether they are even required to do so. MRPC 1.15(d) provides that “[a] lawyer shall hold property of clients or third persons in connection with a representation separate from the lawyer’s own property.” However, the language of MRPC 1.15 does not require the lawyer to accept property from a client or third person when asked to do so. It only provides that, if the lawyer actually receives the property, that lawyer must hold the property separate from the lawyer’s own and safeguard it. Thus, if a client or third party requests that a lawyer hold on to property for safekeeping, the lawyer may decline to do so as there is no ethical obligation within the Rules of Professional Conduct that requires lawyers to do so.
If the property in question is related to a case the lawyer is representing the client on and the lawyer refuses to hold on to the property, the lawyer should advise the client of the lawyer’s ethical obligations, such as not to engage in criminal conduct in violation of MRPC 8.4(b), not to withhold evidence from an opposing party in violation of MRPC 3.4(a), and not to assist a client in conduct that the lawyer knows is illegal or fraudulent in violation of MRPC 1.2(c). If a lawyer accepts illegal property from a client, the lawyer has a responsibility under MRPC1.6(c)(3) to “rectify the consequences of a client’s illegal or fraudulent act in the furtherance of which the lawyer’s services have been used” and must promptly contact the prosecutor’s office, law enforcement, or other appropriate authority depending upon the item. The lawyer must further abide by MRPC 3.4(a) and not obstruct another party’s access to evidence.6 The lawyer must also counsel the client of the potential legal ramifications, i.e., to surrender the property to the proper authorities to avoid charges such as obstruction of justice or other criminal or civil violations.7
Following the request to hold on to the client’s or third person’s property, the lawyer must then make appropriate inquiries regarding the property.
Lawyer’s Duty to Make Appropriate Inquiries
Lawyers may not only assist their clients in safeguarding their confidences and secrets, but also in safeguarding their property. However, when property is handed over to the lawyer and/or the lawyer’s staff, it should not be blindly accepted without further scrutiny. Prior to agreeing to accept the client’s or third person’s property, the lawyer should discuss the legal consequences of possessing the property with the client as permitted under MRPC 1.2(c) and must inquire what the property is, how it was acquired, how it is to be stored, etc. in order to avoid assisting in potential criminal activity under MRPC 1.2(c) or (d).
ABA Formal Opinion 491 reaches a similar conclusion, stating that the lawyer has a duty to inquire as to the provenance and nature of the property in order to avoid ethical entanglements. If the client refuses to answer the lawyer’s questions, refuses to consent to disclosure of the illegal property to the appropriate authorities, or continues the unlawful maintenance of any illegal property they have in their possession, the lawyer should consider withdrawing or declining representation under MRPC 1.16(c). However, the ethical obligations of lawyers do not necessarily end with the decision to decline or withdraw from representation. Lawyers must still consider their ethical obligations with respect to the property. By way of example, lawyers must not assist in destroying or concealing evidence and, if their legal services were used to assist the client in committing an illegal or a fraudulent act,8 lawyers may disclose any information relevant to said act to the prosecutor, law enforcement, or other appropriate authorities under MRPC 1.6(c), which provides that lawyers may rectify “the consequences of a client’s illegal or fraudulent act in the furtherance of which the lawyer’s services have been used.”
Model Analysis of Lawyer Obligations Regarding Client Property
Lawyers must be especially cautious about several types of property they may receive from a client or third party, regarding both the ethical duties they must consider and what information they should relay to their client. In the following analysis, we will first address property that is illegal to possess before providing guidance on what to do once a lawyer has been made aware of said property.
Lawyer Asked to Accept Property that Is Illegal9 to Possess
There are circumstances or situations in which a client comes into possession of property that is illegal to possess, e.g., unregistered handguns, illegal substances, child pornography, or a physician’s prescription pad. When clients attempt to entrust said property to their lawyers, the lawyers must understand their ethical responsibilities and take appropriate steps in order to comply with the law and those ethical responsibilities.
If a client requests that the lawyer take possession of such, or similar, property, the lawyer must first consider their duty as an officer of the court under MRPC 3.3, their duty to opposing counsel under MRPC 3.4(a), and the duty to not engage in criminal conduct under MRPC 8.4(b). Further, the lawyer is now in a precarious position as they are in possession of property that is illegal to possess. The lawyer should consider whether the relevant statute criminalizing said property recognizes any defenses that would exculpate them. If not, neither MRPC 1.6 nor MRPC 1.15 provides any protection to the lawyer. There is already precedent where lawyers have faced criminal charges for holding property for safekeeping that is illegal to possess.10 There is further precedent for lawyers facing criminal charges for destroying such property.11 Therefore, lawyers must use great caution in determining the legality of possessing specific types of property prior to accepting such property from clients, as acceptance may be subject lawyers to criminal and civil liability. The American Bar Association (ABA) addressed the issue of receipt of physical evidence by criminal defense lawyers in their Criminal Justice Standards – Defense Function12 and stated the following:
Receipt of physical evidence: Defense counsel should not take possession of such physical evidence, personally or through third parties, and should advise the client not to give such evidence to defense counsel, except in circumstances in which defense counsel may lawfully take possession of the evidence (emphasis added). Such circumstances may include:
(i) when counsel reasonably believes the client intends to unlawfully destroy or conceal such evidence;
(ii) when counsel reasonably believes that taking possession is necessary to prevent physical harm to someone;
(iii) when counsel takes possession in order to produce such evidence, with the client’s informed consent, to its lawful owner or to law enforcement authorities;
(iv) when such evidence is contraband and counsel may lawfully take possession of it in order to destroy it; and
(v) when defense counsel reasonably believes that examining or testing such evidence is necessary for effective representation of the client.13
Similarly, the Restatement of the Law Governing Lawyers provides:
With respect to physical evidence of a client crime, a lawyer:
(1) may, when reasonably necessary for purposes of the representation, take possession of the evidence and retain it for the time reasonably necessary to examine it and subject it to tests that do not alter or destroy material characteristics of the evidence;14 but
(2) following possession under Subsection (1), the lawyer must notify prosecuting authorities of the lawyer’s possession of the evidence or turn the evidence over to them.
…
Disposition of evidence of a client crime. Once a lawyer’s reasonable need for examination of a client crime has been satisfied, a lawyer’s responsibilities with respect to further possession of the evidence are determined under the criminal law and the law affecting confidentiality of client information.15
In these circumstances, lawyers must inquire as to what the property is that they will be holding, inspect the property and conduct appropriate legal research to determine whether it is legal to possess, and inform the client as to the lawyers’ responsibilities to promptly hand over any illegal property to the proper authorities under MRPC 3.4(a) and MRPC 8.4(b).16 The lawyer should also notify the client that, in accordance with MRPC 1.6(c)(3), the lawyer may reveal confidences and secrets in such circumstances but assure the client that confidences and secrets will be maintained to the extent reasonably possible and permissible.17
Counseling the Client Regarding Possession of Illegal Property
Less guidance is available regarding how a lawyer should counsel a client upon learning that the client is in possession of illegal property. The ABA has provided some guidance on the question in the context of a defense lawyer asked to hold property for a client:
Counseling the client: If defense counsel knows that the client possesses physical evidence that the client may not legally possess (such as contraband or stolen property) or evidence that might be used to incriminate the client, counsel should examine and comply with the law and rules of the jurisdiction on topics such as obstruction of justice, tampering with evidence, and protection of the client’s confidentiality and against self-incrimination. Counsel should then competently advise the client about lawful options and obligations. …
Permissible actions of the client: If requested or legally required, defense counsel may assist the client in lawfully disclosing such physical evidence to law enforcement authorities. Counsel may advise the destruction of a physical item if its destruction would not obstruct justice or otherwise violate the law or ethical obligations. Counsel may not assist the client in conduct that counsel knows is unlawful and should not knowingly and unlawfully impede efforts of law enforcement authorities to obtain evidence.
…
Confidentiality: Defense counsel should act in accordance with applicable confidentiality laws and rules. In some circumstances, applicable law or rules may permit or require defense counsel to disclose the existence of, or the client’s possession or disposition of, such physical evidence.13
Under MRPC 1.2(c), a lawyer may not assist a client in conduct that is illegal, but may ethically discuss the legal consequences of any proposed course of conduct with their client. An article titled “What Do I Do with the Porn on My Computer: How a Lawyer Should Counsel Clients about Physical Evidence”18 explores scenarios and possible responses a lawyer may provide given various hypothetical situations. The Committee finds this article instructive and encourages lawyers to consider its general guidance where appropriate, including the following:
1. The lawyer should explain that if the client continues the possession of the illegal or dangerous property, they will be exposing themselves, as well as any other person who lives with them, to arrest and possible charges.
2. The lawyer should explain the risks and consequences of tampering with, altering, concealing, or destroying illegal or dangerous property.
3. The lawyer should emphasize that the lawyer is not advising the client to break any law and should provide options as to how to handle the property.
Lawyers should be aware that when a client brings evidence into their office for the sole purpose of the lawyer holding on to it for safekeeping, that does not impose a duty upon the lawyer to take possession of said property, even it means leaving the property in the client’s possession. The lawyer should instead inform the client of the risks of the client keeping such property, the liabilities the client may face having the property in their possession, and the options available to the client, including the lawyer handing it over to the proper authorities while maintaining client confidentiality. If the lawyer does not practice criminal law, the lawyer should consult with a criminal defense lawyer to determine whether the client is committing a crime and to provide information that is relevant to the client.19
Lawyers must note that “no single rule applies to all situations.”20 As noted in Jenness’ article, the following guideposts are worth considering:
1. Do not take possession of potential contraband, instrumentalities or fruits of a crime, or move or otherwise meddle with evidence involved in the perpetration of a crime, and train your subordinates and other agents accordingly;
2. Do not destroy or conceal, or advise a client to destroy or conceal, any potential evidence, and train your subordinates and agents accordingly;
3. Warn clients or third parties seeking to give evidence to you that if it is unethical or illegal for you to possess it, you may be required to turn it over to law enforcement and it could be admitted into evidence against them;
4. Before taking action, research applicable ethics rules, laws, and other authorities. When the results of research are inconclusive, consult colleagues or outside counsel;
5. If you possess contraband, instrumentalities, or fruits of a crime, turn them over to law enforcement pursuant to a strategy that minimizes the revelation of client confidences and the adverse impact on a client;
6. If a client provides ordinary materials (i.e., items that are not contraband, instrumentalities, fruits of a crime, or items that were not directly involved in the perpetration of a crime) that evidence the client’s wrongdoing, you ordinarily need not disclose them to law enforcement unless required to do so by a subpoena, court order, discovery obligation, or the like;
7. Consider filing a motion to quash, seeking a protective order, and appealing any court order requiring the disclosure of evidence implicating a client where there is a legal basis for doing so;
8. Where the mere act of producing nonprivileged materials on behalf of an individual client may incriminate the client, or provide a link in a chain of evidence implicating a client, challenge disclosure of the evidence on Fifth Amendment grounds and/or seek act of production immunity for the client;
9. Avoid accusations that your offices were used as a repository for unique incriminating evidence by duplicating and returning to the provider materials other than contraband, instrumentalities, or fruits of a crime, unless doing so would lead to destruction of the evidence; and
10. Document your efforts to resolve problematic situations legally and ethically in order to shield yourself and your client from any claims of inappropriate conduct.20
CONCLUSION
For years, lawyers have wrestled with the ethical and legal issues surrounding their obligations with respect to handling the physical property of clients, especially those items that are illegal to possess. This is a very complex issue involving myriad considerations, and the Committee recognizes the difficulties lawyers face in resolving these types of ethical dilemmas and that a lawyer’s decisions when faced with these dilemmas can have severe implications for the lawyer. First and foremost, lawyers must inform clients about the law and provide a straightforward assessment of the risks and consequences of maintaining property so that clients may make an informed decision as to what to do with the property at issue. The appropriate course of conduct for lawyers asked to accept client property for safekeeping begins with recognizing that lawyers are not obligated to accept client property but also involves conducting an appropriate inquiry into the property. Lawyers must then analyze and research the issue to the greatest extent possible before applying thoughtful application of their analyses to the specific facts at hand.
Therefore, in considering this approach and the analysis contained herein, the Committee concludes that lawyers and their staff should only accept property that is legal to possess and only when it relates directly to the underlying representation. If the client requests that the lawyer hold property that is illegal to possess, the lawyer should refuse to do so and inform the client of the risks of their keeping such property, the liabilities the client may be facing having the property in their possession, and the available options, including handing it over to the proper authorities, while maintaining client confidentiality. If the lawyer agrees to hold illegal property for a client, the lawyer must counsel their client that they will promptly hand over the illegal property to the proper authorities while attempting to maintain client confidentiality. The lawyer should also review the exceptions that may require the lawyer to reveal those confidences under MRPC 1.6(c), the lawyer’s duties to the court under MRPC 3.3, their duties to opposing counsel under MRPC 3.4(a), and their responsibility not to engage in criminal conduct under MRPC 8.4(b).
If the property does not directly relate to the underlying representation, the lawyer should refuse to accept the property and should counsel their client as to their options for storage. If the lawyer decides to hold on to property that is not related to the representation, the lawyer should inform their client that the holding of the property may create an inherent new representation.
1. See also Ethics Opinion RI-69.
2. MRPC 1.6(b)
3. MRPC 1.15(d)
4. MRPC 3.4(a)
5. MRPC 8.4(b)
6. As with any violations of the MRPC, if a lawyer violates MPRC 3.4(a) or MRPC 8.4(b), disciplinary proceedings may ensue.
7. Whether holding property is a violation of criminal or civil statute is beyond the scope of this opinion and the Committee strongly encourages lawyers to do their due diligence under MRPC 1.3 and research possible consequences of their decisions to adequately advise their clients of those consequences.
8. See also MRPC 8.4(b) and MRPC 1.2(c), (d), and comments.
9. If the property is dangerous but is not illegal to possess, it is not considered an ethical question and, therefore, falls outside of the scope of this opinion.
10. United States v Russell, 639 F. Supp. 2d 226 (D. Conn. 2007).
11. Id.
12. See also Criminal Justice Standards – Prosecution Function for additional information.
13. ABA Criminal Justice Standards – Defense Function 4-4/7 (Am. Bar Ass’n 4th ed. 2015) (hereinafter ABA Criminal Justice Standards).
14. Note that any statutory allowances to inspect evidence are not covered under this opinion as they fall outside the scope of this Committee’s analysis.
15. Restatement of the Law Governing Lawyers, 3d, § 119 (2000) (hereinafter Restatement).
16. Lawyers should review the Michigan Department of Attorney General-Criminal Investigations Division Policies and Procedures as well as the State Ethics Act when handing property over to the proper authorities and review their safekeeping procedures.
17. Further analysis is found in Hansen, Hand it Over, 12 ABA J, 30-32 (2005).
18. Uphoff, What Do I Do with the Porn on My Computer: How a Lawyer Should Counsel Clients about Physical Evidence, Univ. of Missouri School of Law Scholarship Repository (2017).
19. See also MRPC 1.1 Competence.
20. Jenness, Possessing Evidence of a Client’s Crime-What Should a Lawyer Do?, The National Association of Criminal Defense Lawyers, The Champion Issue, p. 16 (December 2010).