1.Is there something unethical about you telling the client to take it back because if you keep it, you will have to turn it over? You have a duty as a zealous advocate but on the other hand can’t violate any laws. What would happen if he destroys it after you tell him this? Have to see if there is a statute that would make this an offense for the lawyer to do-are technically not violating ethics rule though. 1. The dividing line is possession-once the lawyer has it in his possession, he must turn it over 2.What is possession? Not possession till assert control-not possession just sitting on your desk 3. Dividing line between communication and physical control 2.Tell client that have to turn over the knife…gives it to you…can they ask the lawyer where he got the knife according to the Meredith standard? 1. Say Meredith doesn’t control because this has no evidentiary significance like in Meredith. Still, underlying Meredith, Olwell…is notion that want to encourage lawyers to do the right thing and turn over the evidence so say that if the evidence comes directly form the client it is privileged-the source is privileged. vii.Morrell-witness comes to you and tells u they found a kidnap plan in back of car…is there any privilege you can assert? No because it comes from a 3rdparty-cant assert a privilege for it. 1. Not only is it unethical, are in receipt of stolen property-crime. 2. The rule articulates some duties that lawyers owe 3 rd parties if get document from them, but it is not privileged b/c not your client! ix. Guidelines: 1. If a client tells a lawyer about the location of evidence, the lawyer may inspect the evidence but should not disturb it or move it unless doing so is necessary to examine or test the evidence. 2. If the lawyer merely inspects the evidence without disturbing it, the lawyer’s knowledge of its location remains privileged.
Prof Resp - Outline Page 39 of 42 Professor Ellen Yaroshefsky Spring 2006 3. In many states, a lawyer may “take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence…applicable law may require the lawyer to turn over the evidence to the police or other prosecuting agency. 4. If the client delivers physical evidence of a crime to a lawyer, the lawyer must turn the evidence over to the law enforcement authorities within a reasonable period of time-at least in some jurisdictions. This rule applies to physical evidence and documents. 5. A prosecutor who receives evidence of a crime from the lawyer for a suspect should take steps to avoid revealing to a jury the fact that the incriminating evidence came from the Ds lawyer. b. Civil Cases: i. The standard for civil cases is different because the possession of such documents may not cover up a crime.
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