Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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B. The Lawyer-Client Privilege (619)

Bentham is logical as far as he goes, but fails to take into account the major force underlying the attomey-client privilege in the context of criminal defense. Indeed, the logic of Bentham's argument is so compelling and the result for which he is arguing is so at odds with our existing practice that, in a way, his argument testifies to the explanatory power of the missing component.

What Bentham is missing is the importance of ensuring that guilty verdicts in criminal cases are acceptable and durable determinations that the criminal defendant committed the criminal offense. The task is epistemological: to lead people to accept a conclusion (a kind of knowledge or belief) that a given event happened in the past. Recognition of the difficulty and subtlety of this task is the key to understanding the deepest structure of the trial process and its attendant evidentiary rules, including some of the rules of privilege. Bentham's logic is fine if we can all agree that the defendant is guilty, but of course we never can, unless the system has already functioned so as to convince us of the defendant's guilt. Bentham has not addressed the way in which the attorney-client privilege functions in the context of criminal trials so as ensure that the system's determinations of guilt are convincing.

The defense lawyer's function in the process of generating convincing determinations of guilt is to test the prosecution's assertion that the defendant is guilty. The most effective form of testing is to oppose the prosecution's version of what happened with the most plausible alternative story about what happened that is consistent with the defendant's being innocent. If the most plausible counter-prosecution story is not persuasive enough to raise a reasonable doubt, then the "convincing" power of the prosecution's version of what happened is pretty well assured.

The privilege is essential to the defense lawyer's ability to gather information from the defendant and to communicate to the defendant in ways that allow the presentation of the most plausible defense. This is because of the tension between (1) the lawyer's ethical rules (and the defendant's common sense belief) that the lawyer cannot put on the most

effective defense, such as by putting an admittedly guilty defendant on the stand to protest his innocence, and (2) the adversary system's assumptions (and the defendant's desire and the private defense lawyer's economic interest) that the lawyer do so. This conflict between the lawyer's ethical responsibility and the realities of the system is inherent and never resolved. The privilege is one device that supports this system. It acts as a curtain of silence that allows lawyers to continue to act as the system and their selfinterest require while shielding behavior that does not conform to the fictional ethics of the canons. If the defense lawyer does not advance the most plausible defense then that defense cannot be actively evaluated and rejected by the trial process. The ultimate determination is thereby made less convincing, undermined by doubts that the plausible defense was not raised because of attorney incompetence.

The weakness in Bentham's argument lies in its implicit assumption that people will think that the reason a plausible defense was not raised was that the defense attorney knew it to be false. If people credit that explanation, then the verdict is not undermined. But the very plausibility of the defense means that people's conviction that the defendant is guilty will be vulnerable to plausible explanations for why the defense was not raised.

Conceiving the defense lawyer's institutional function as that of testing the prosecution's case by advancing the most plausible defense leads to an interesting conceptual conflict. The best test of the prosecution's case is the most plausible defense, independent of whether the defense is true or false. That function is undercut if plausible defenses are not raised at trial because the defense lawyer knows they are not true. His knowledge that they are not true is not readily communicable; it will not stop the defendant from asserting the plausible defense later on, along with an assertion about his defense lawyer's incompetence. It is true that in such a situation the lawyer could defend his competence, notwithstanding the privilege, but any lawyer who sinks his client by testifying that the client is guilty will have few other paying clients. The logic of the defense attorney's testing function, then, would seem to lead to a conclusion that a defense attorney should not be constrained by his knowledge of the truth.

Conceptual conflict arises because the idea that defense lawyers are trying to convince juries of lies is itself a proposition which undermines people's faith and confidence in the system. The cynical way out of this conceptual bind is to structure the system in such a way that defense lawyers do the testing, but also to say that they will not advance a defense they know to be false. The attorney-client privilege is essential to preserve this fiction, which, to a quite shocking extent, describes our present system. Some defense lawyers are straight-forward about it; Simon, Ideology of Advocacy, 1978 WIS. L. REV. 34-39, discussing Monroe Freedman's position. Others who may think of themselves as more scrupulous (or perhaps just more careful) play charades with the client so as not to learn the truth, and thereby avoid the discomfort of knowingly advancing a lie. See Robert Travers' wonderful description of "The Lecture" in Anatomy of a Murder.

The Lecture is an ancient device that lawyers use to coach their clients so that the client won't quite know he has been coached and his lawyer can still preserve the face-saving illusion that he hasn't done any coaching. For coaching clients, like robbing them, is not only frowned upon, it is downright unethical and bad, very bad. Hence the Lecture, an artful device as old as the law itself, and one used constantly by some of the nicest and most ethical lawyers in the land. "Who, me? I didn't tell him what to say," the lawyer can later comfort himself. "I merely explained the law, see." It is a good practice to scowl and shrug here and add virtuously: "That's my duty, isn't it?" Verily, the question, like expert lecturing, is unchallengeable.

Bentham should have made his argument, not about the privilege in the context of criminal defense work, but rather about the privilege in the context of civil representation. In the context of criminal defense the primary justification for the privilege is that it is needed to further the epistemological goal of generating .an acceptable determination about what happened. It is a matching component to the privilege against selfincrimination and the standard of proof beyond reasonable doubt, the combined effect of which is to give us maximum assurance that the state is justified (that we are justified) in punishing a criminal defendant. The system of criminal trials is radically skewed against the prosecution so that we have maximum confidence in the convictions which the prosecutions wins. The civil system is fundamentally different, based on procedural assumptions of equality between the parties, with full disclosure the object of discovery. It is hard to see how the privilege in this civil context furthers the quest for truth. Professor Edmund Morgan, imagining a world without the attorney-client privilege, forcefully framed his version of Bentham's questions in a civil context as follows:

If the client suppresses pertinent facts [from his attorney], what will happen? First, suppose that no lawsuit results. The client by reason of withholding material matter gets bad advice, and acts upon it. He sustains a loss, gets into trouble. Whom has he to blame but himself? Why should he be saved from his own deceit? Suppose a lawsuit or official investigation results (and this is the case where the privilege counts): whether the client be a plaintiff or a defendant or a mere witness, he is subject to compulsory process and may be required to disclose at the trial or hearing every pertinent fact within his knowledge, under the sanction of an oath or its equivalent that obliges him to tell the whole truth. If he told his lawyer the truth, he must now tell the same thing from the witness box. If he told his lawyer a lie and sticks to it, he will tell the same story at the trial or hearing. If he told his lawyer the truth and now tells a lie, why should he be protected from exposure? Is the privilege retained in order to protect perjurers? How can that either directly or indirectly further the administration of justice?

(Morgan, Forward, ALI Model Code of Evidence (1942), quoted in Weinstein, Mansfield, Abrams & Berger, Cases and Materials on Evidence (7th ed., 1983) p. 1404.)

Justifications for the privilege from the criminal context do not automatically transpose to the civil context.

Bentham's arguments apply with greatest force to the vast bulk of privileged attorney-client counseling which is not immediately related to litigation. The justification for the privilege in these contexts (which would include most corporate law practice) must be in terms of supposed beneficial effect on primary conduct. In other words, the privilege must be defended by assertions that it produces better behavior in the present and future, as opposed to helping in a process of determining how someone behaved in the past. Justifications for the privilege in terms of its effect on primary behavior are often very thin, not subject to objective verification, and selfservingly advanced by those who benefit from the privilege.

On the other hand, there may be cases where the existence of the privilege will lead to more law compliance rather than less, as the defenders of the privilege contend. For example, suppose D has been overcharging the state for personal services under a consulting contract. Concerned about his exposure, he consults a lawyer, tells all, and asks for the lawyer's advice. The lawyer advises D that D has committed a felony, should immediately stop overcharging, and make anonymous restitution to the state. D accepts the advice and brings his behavior into conformity with the law. It is not likely that persons in D's situation would consult lawyers if they feared that their disclosures to D and P's advice to them could be discovered by law enforcement officials.

While, unquestionably, there are imaginable cases in which the privilege contributes to greater compliance with law, the balancing question remains, whether such cases offset the extent to which the privilege serves as a means of shielding law violation.

At the grand level the interesting questions about privileges concern their justification or lack thereof. At a more mundane and practical level the question is, how do they work? The next problems and cases deal with the technical scope of the attorney-client privilege.

Problem - The Blackacre Fraud (620)

Answer and Analysis:

(1) The client's whispering to his lawyer is a (1) communication (2) between a client and his attorney (3) intended to be confidential (4) and in furtherance of the rendition of profession legal services. The privilege applies.

(2.) It does not matter whether the attorney or the client is asked. It is the communication that is privileged. The privilege is the client's; the attorney must assert the privilege on behalf of the client.

(3.) It is the communication between client and attorney, not its subject matter, that is privileged. The client cannot guard a fact from disclosure merely by telling his attorney about it.

(4.) Written communications, no less than oral communications, may be privileged.

(5.) The client may not guard a document from disclosure merely by giving it to his attorney. The deed is not a communication to the attorney, and therefore is not privileged.

Problem - The Eavesdropper (621)

The point:

This problem introduces the general question: Does "confidentiality" involve a subjective or an objective standard? Is the determinative fact that the client intended the communication to be confidential, or that was in fact confidential?

Answer and Analysis:

Proposed FRE 503 opts for a subjective standard (not intended to be disclosed to third persons), subject to the qualification that the communication must be made with a reasonable expectation that it is private. This approach has its problems. If no third party knows the content of a lawyer-client communication then there is only the speculative possibility, so far as anyone knows other than the lawyer and the client, that the privilege is shielding vital evidence, and puts the courts in the uncomfortable position of obviously meeting out justice with blinders on. But a communication the content of which becomes known becausf. it was overheard by a third party highlights the privilege's function of excluding often vital evidence. Thus the approach of the Hoy court, which holds in effect that clients and lawyers act at their peril in keeping their communications confidential, has the merit of keeping courts out of the business of suppressing known, relevant evidence. This idea is developed further in Problem - The Energetic Investigator and the discussion of Clark v. State, below.

Pritchard v. United States, 181 F.2d 326 (6th Cir.), affd, 339 U.S. 974 (1950) (622)

A reasonable person in Pritchard's position would have understood that he could not enter into a privileged relationship with the judge who was shortly to preside over the grand jury that would consider indicting him. By taking this objective approach the court avoids the awkwardness of having to make a factual assertion that Pritchard subjectively harbored a corrupt purpose in going to see Judge Ardery (the corrupt purpose of inducing the judge to bag the grand jury). The purpose of Pritchard's visit, whether subjectively determined or objectively imputed, overrides the formality of Pritchard's having asked for and received Judge Ardery's assurance that Pritchard could talk to him as an attorney. In effect, Pritchard is denied the privilege under a theory equivalent to that of Proposed FRE 503(d)(1).

Problem - The Energetic Investigator (625)

The point:

This problem further illustrates the bind created by the eavesdropper situation under a subjective approach to the privilege. P reasonably believed that he was talking to an authorized agent of his attorney. Under proposed FRE 503 the communication would be privileged. But suppose that P then testifies at trial in a way that is markedly inconsistent with the statements he made to the energetic investigator? Should the court suppress the inconsistent statements and ignore the evidence that the witness is lying?

Answer and Analysis:

In the criminal case on which this problem is based, Commonwealth v. Lewinski, 367 Mass. 889 (1975), the trial court permitted the defendant to use the information obtained by the defendant's investigator to impeach the key prosecution witness. The defendant was convicted nonetheless. Since admission of the statements favored the defendant the appellate court declined to comment on the question of privilege or upon the ethics of the means of acquiring the information.

In the criminal context the argument for admissibility can be based on the constitutional right to a fair trial. In the civil context, however, the outcome would depend on whether the scope of the privilege is subjectively defined, as in Proposed FRE 503, or objectively defined as in Hoy.

Problem - Tania's Tale (626)

Answer and Analysis:

Proposed FRE 503(d)(3) speaks of breach of duty by the client to her lawyer. What duty does the client owe to her lawyer? She owes a duty to pay her lawyer's bills and not to slander her lawyer's reputation! This part of the privilege rule covers the one situation in which the power to waive the privilege is the lawyers. Lee can testify to the contents of Patty's privileged conversations with him if the conversations are relevant to his collecting his bill and to his rebuttal of her assertion that he was incompetent. This exception to the attorney-client privilege demonstrates how the inherently subjective determination of the utility of a privilege permits powerful groups to make the rules serve their interests.

Problem - The Evanescent Privilege (626)

Answer and Analysis:

This problem is the subject of the film, Commonwealth v. McKinnon. The case is one in which the defendant at trial did not present his strongest defense (taking the stand to deny the charge and to present an alibi), and now claims plausibly that the defense was not presented because his attorney was incompetent.

The prosecutors theory was that McKinnon, by asking Bender about portions of conversations Bender had had with McKinnon concerning the risks of McKinnon's taking the stand, had thereby waived the privilege with respect to the whole of the conversations. McKinnon maintained that the rest of the conversations were not relevant to his claim that Bender misadvised him about the impeachment consequences of taking the stand.

McKinnon was extremely anxious to prevent Bender from testifying to the rest of those conversations. It is a good bet that his reluctance was because he had told Bender that he was guilty, and that he nonetheless wanted to take the stand to testify to his innocence because, given the strength of the prosecution's case, that was the only chance he had; and that Bender told him that he could not participate further as McKinnon's defense lawyer if McKinnon insisted on taking the stand and committing perjury. If indeed this was the substance of McKinnon's conversations with Bender, then Bender's misadvice about impeachment under FRE 609 appears in a different light. Bender, it appears, having failed by straight-forward explanations of the law to dissuade McKinnon from his intention to commit perjury, may have used the tactic of misadvising McKinnon that his entire prior record would be used to impeach him in order to scare him out of testifying. If so, then the full conversations are clearly relevant to the issue upon which sender's testimony on direct related, thus within the proper scope of cross-examination.

There is, of course, a serious ethical question as to whether Bender was justified in misadvising his client in order to force the client to do the right thing.

The problem illustrates the difficulties of determining the scope of a waiver of the privilege. The idea that waiver as to a part waives the whole has a certain symmetrical appeal, but no other logic. When does one conversation end and another begin? The scope of waiver should be determined by a relevance notion; all communications which form relevant context for the communication that was the subject of testimony should be open to cross-examination. But a judge has great difficulty determining what is relevant and what is not without knowing the substance of the whole conversation.

In the actual case (the names have been changed) the judge got the idea as the argument about the scope of waiver of the privilege went forward that McKinnon's claim of innocence was false. He ruled that McKinnon had waived the privilege with respect to the full conversations about which Bender had partially testified. He then told McKinnon that the only way McKinnon could prevent Bender from testifying to the full conversations would be to withdraw his motion for new trial. McKinnon thought about it, then withdrew his motion.

Ironically, after the hearing ended, Bender said that he would not have testified to the substance of his conversations with McKinnon even if he had been ordered to; contempt of court would have been more preferable to him than violating a client's confidence. Though he explained this in terms of the principles of the privilege, Bender's reluctance to testify probably had more to do with the damage that his testifying against McKinnon would have done to his business as a criminal defense lawyer.

Problem - Name That Client (627)

Answer and Analysis:

This problem is based on In re Grand Jury Proceedings, 517 F.2d 666 (5th Cir., 1975). Prosecutors, using a grand jury to investigate narcotics and income tax violations, wanted to find out who had posted bonds and paid attorney fees for small-time narcotics defendants. The little fish had been caught trafficking in narcotics, and bigger fish whose identity was not known to the prosecutors had apparently put up the money for their bonds and lawyers. The lawyers for the little fish, when asked who put up the money to pay them, refused to answer on grounds that the information was protected by the attorney-client privilege. The court upheld the privilege with respect to questions which, if answered, would have disclosed the names of unknown third parties (question 2, 3, and 4 in the problem). The court's logic was that an attorney is privileged from disclosing information which would reveal a client's motive in consulting the attorney if the disclosure might link the client to a crime.

"If relators were compelled to disclose the sought-after items before the grand jury, the unidentified clients -- having been linked by their lawyers to payments in excess of reported income, might very well be indicted. In any event, the income tax aspects of the government's inquiry demonstrate a strong independent motive for why the unidentified clients could be expected to (1) seek legal advice, and (2) reasonably anticipate that their names would be kept confidential. The attorney-client privilege protects the motive itself from compelled disclosure, and the exception to the general rule protects the clients' identities when such protection is necessary in order to preserve the privileged motive. "

United States v. Pape, 144 F.2d 778 (2d Cir. 1944) (716)

The Pane majority refuses to extend the privilege to the identity of the retaining client. Judge Hand in dissent emphasizes that legal representation for the woman was important to the retainers own defense. Had Pape known that his act of retainer was not privileged, he would not have associated himself with the woman by hiring a lawyer for her.

Hand's view seems to have prevailed in later cases. The Ninth Circuit, in Baird v. Koemer, 279 F.2d 623 (1960) permitted a lawyer to refuse to name his client in a situation in which the lawyer had made an anonymous payment to the IRS for the client. The client, having realized that he had underpaid his taxes in a way that exposed him to possible criminal prosecution, wanted to pay, but did not want to tell the IRS that he had paid, figuring that the payment would alert the IRS to his delinquency and cause the IRS to investigate him further. The Baird court took the view that when disclosure of the client's name would effectively disclose the client's reason for consulting the attorney, then the privilege applies. See also Tillotson v. Bouahner. 350 F.2d 663 (7th Cir., 1965); NLRB v. Harvey 349 F.2d 900 (4th Cir., 1965).

Problem - Hit and Run (629)

Answer and Analysis:

The question of whether a lawyer may be required to divulge a client's identity in the context of a civil suit or criminal investigation against the client is a close one. Although ordinarily the fact of representation is not privileged, where divulging the representation would, in effect, be divulging the name of an otherwise unknown suspect, the privilege can apply. A careful lawyer would not reveal the client's name under these circumstances without either consent of the client or a binding judgment ordering him to disclose the name.

Problem - On The Waterfront (631)

Answer and Analysis:

This problem, based on In re Klan, 8 N.Y.2d 214, 203 N.Y.S.2d 836, 168 N.E.2d 660 (1960), is an example of a situation in which extension of the privilege is essential to the lawyer's representation of the client. Moreover, unlike Baird v. Koerner or In re Grand Jurv Proceedings the representation is of a kind to be encouraged. The case thus seems easy by comparison, and provides a basis for considering whether lawyers shielding big fish by representing little fish (Pane and In re Grand Jury Proceedings) and lawyers acting as inscrutable money messengers to the IRS (Baird, Tillotson are activities which should have been encouraged by extension of the privilege.)

Couch v. United States, 409 U.S. 322 (1973) (631)

Couch begins our consideration of cases involving the handling of a client's possibly incriminating tax records. These cases involve the interrelationship of the attomey-client privilege, the Fifth Amendment, the Fourth Amendment and the canons of ethics.

The records in ouch were in the hands of the accountant at the time the subpoena was issued. They were then transferred to Couch's attorney (at Couch's request).

The attorney-client privilege did not cover the papers. Papers, like other physical objects, cannot be brought under the privilege merely by transferring them to the attorney.

The most interesting issue in the case for class discussion is passed off rather easily by the Court: whether there should be an accountant-client privilege, especially in light of the fact that accountants often do the same work as lawyers, namely advising clients about tax liabilities. The Court's refusal to recognize an accountant-client privilege in a situation in which an attorney-client privilege would be recognized if the attorney were doing the same kind of work that the accountant was doing raises the question: why should one profession have the privilege and not another for doing the same work? There is no good answer except that "privilege" is exactly that: the lawyers privilege is a manifestation of the power of the bar.

United States v. Schmidt, 343 F. Supp. 444 (M.D. Pa. 1972)(636)

Schmidt raises the issue of whether by hiring a lawyer first, who then hires an accountant as his agent, Couch can be circumvented. The court held that the attorney-client privilege extended to cover papers in the accountant's hands if they would have been privileged in the lawyer's hands; that is, the accountant was treated simply as an agent of the lawyer, just as an investigator or secretary would be treated.

When coupled with Couch's refusal to extend a privilege to accountants, Schmidt emphasizes the competitive economic power that the attorney-client privilege gives to lawyers.

Fisher v. United States, 425 U.S. 391 (1976) (637)

Fisher holds that, although the attorney cannot assert the client's Fifth Amendment privilege because the Fifth Amendment privilege is personal, the attorney can assert an attorney-client privilege to resist the production of documents if the documents would have been privileged in the client's hands by the Fifth amendment.

The most ground-breaking part of the court's opinion deals with whether the papers in question would have been privileged in the taxpayer's hands. Prior to Fisher it was thought that no incriminating evidence could be subpoenaed from a person asserting a Fifth Amendment privilege because the act of complying with a subpoena involves a tacit testimonial statement that the item produced is the item sought. That testimonial aspect of the act of production might be minor, but it had been enough prior to Fisher to permit invocation of the privilege against self-incrimination. The Court brushes past this problem, relying on the fact that the government had independent means of authenticating the documents and did not intend to use the testimonial aspects of Fisher's compliance with the subpoena.

This suggests a principle which could extend quite far; anything could be subpoenaed, the privilege against self-incrimination notwithstanding, so long as the prosecution does not intend to rely on the testimonial aspects of production in response to the subpoena. Moreover, any possible doubt about such reliance could be removed if the prosecution arranged for use immunity limited to the implicit testimonial act of subpoena compliance. The possible reach of the subpoena power would then extend to any physical items (papers and objects) in the possession or control of the person subpoenaed. See In re Grand Jury Proceedings (Martinez), 626 F.2d 1051 (1st Cir., 1980) in which the First Circuit Court of Appeals approves enforcement of a subpoena for documents on condition that the government make a grant of use immunity to cover the testimonial aspects of complying with the subpoena. Brennan, in dissent, suggests that a personal diary would be privileged, see below, but the logic of the limitation is unclear.

Questions on page 647.

(1) There is nothing testimonial about the invoice. Fisher makes clear that Bovd, which involved invoices, would not be decided the same way today.

(2) The memorandum to the file is a recording of the thoughts of the company president: As such, Justice Brennan might say that the Fifth Amendment protected it, even though it was seized rather than subpoenaed. The Fi, her majority, however, would say that the president's act of writing the memorandum was not compelled, and the seizure of the document was accomplished without compelling any testimonial act by the president; therefore the document is not protected from seizure by the Fifth Amendment. (See particularly, footnote 11 of the opinion.)

(3) The personal diary poses Brennan's worry in its most compelling form. The logic that applied to the memorandum-to-the-file applies also to the personal diary: there was no compulsion by the government to write it; nor was there any testimonial act involved in its seizure. Nonetheless there remains some doubt that Fisher extends to documents of such a personal nature.

(4) The copy of the letter from the company president to the company attorney would be covered by the attorney-client privilege even though seized rather than subpoenaed. The document attached to the letter (assume that the government had not obtained it otherwise) although not initially prepared for the purpose of communicating with the attorney, was attached to the communication as an integral part of it, and not as an independent piece of evidence to be examined. Although a close question, the attachment should be considered privileged as having been adopted and incorporated in a communication to the attorney for purposes of obtaining legal advice. This would not protect the original of the document still in the president's file from either subpoena or seizure. But if the original and all copies other than the copy sent to the attorney had been destroyed, the privilege would, very arguably, prevent the government from obtaining any copy of the document.

The further questions on page 647.

These questions are meant to frame the materials that follow in the text.

After Fisher a client cannot be confident that he can prevent the government from obtaining existing tax preparation documents that he had created. A person interested in preventing the government from obtaining such documents might consider two extreme possibilities: "hiding" the documents from the government or destroying them outright. The client might hide the documents by storing them someplace where the government cannot find them. The location of the storage-place is information which cannot be obtained from the client without a testimonial act, which means that the client could assert his Fifth Amendment privilege if asked to disclose their location. Information about the location of the documents could be communicated to the client's lawyer under the protection of the privilege. While hiding the documents would frustrate seizure, the client might well be obliged to produce the documents in response to a subpoena. They are in the client's possession or control, and under the theory of Fisher, the testimonial aspects of the act of producing them in response to the subpoena may not be a sufficient basis for asserting the Fifth Amendment privilege.

The client could destroy the documents. Assuming that the documents are not themselves records which are required by statute to be preserved, and provided that the documents have not yet been subpoenaed, it seems not to be a crime to destroy them. Cases involving destruction of documents under the federal Obstruction of Justice statute (18 U.S.C. 1503) (746) all involve documents destroyed after they had been subpoenaed. This seems to be true even if the potential evidentiary value of the documents to possible judicial proceedings is understood by the client.

Just because the destruction of the documents is not illegal, however, does not mean that destruction is advisable. The act of destruction itself will be admissible evidence in subsequent proceedings against the client from which adverse inferences may be drawn. If, however, documents are destroyed as part of a general, routinized document destruction program implemented prior to and without reference to the dispute to which the documents in question relate, then there is no particular inference to be drawn from their destruction. If the client has destroyed the documents, and communicates that fact to his attorney, the communication about the destruction of the documents is privileged. If, however, the client is questioned under oath in interrogatory, deposition or trial, and is asked whether the documents existed and what happened to them, then the client will be required to answer. Moreover, Clark v. State suggests that a lawyer who advises a client to destroy evidence may thereby become an accessory after the fact.

Problem - Mehrens' Problem: Who's Got the Button? (652)

Answer and Analysis:

Under Fisher the letters in the hands of the attorney would only be privileged if they were protected by the 5th Amendment privilege against self-incrimination. In that they had been sent to Sandra, it would appear that there would be no 5th Amendment privilege attaching to the letters. Thus the letters need not be returned to Mehrens.

Problem - The Smoking Gun (660)

Answer and Analysis:

There is no good resolution to this problem. The lawyer cannot take the gun with an expectation of simply keeping it. Ryder makes clear that a lawyer should not be a repository for physical evidence. Olwell suggests that the lawyer may take possession of a weapon for purposes of examining it, but must then pass it on to the prosecution. The problem is that if the lawyer were to explain these consequences to the client before taking the weapon, it is a good bet that the client would choose not to give the weapon to the lawyer. If the lawyer does not take the weapon, the client may walk out with it. The client has just killed someone, and may, perhaps kill again, especially if he is left with the gun. Moreover, the authorities may find the gun in the possession of the defendant, which would be severely incriminating. There is a strong ethical bind either way.

The lawyer should not advise the client to dispose of the weapon. A lawyer who so advised a client would be risking ethical sanctions and possible prosecution as an accessory after the fact. The court's discussion in Clark v. State at page 661 indicates that when a lawyer advises a client to dispose of a weapon, the lawyer becomes an accessory after the fact.

What some defense lawyers to whom we have put this question say they would do is to refuse to take the gun, advise the client to turn it in, and then let nature take its course.

Is this sufficient? Do lawyers have to take the weapon and turn it in? A recent California case, People v. Meredith, 29 Cal. 3d 682, 175 Cal. Rptr. 612, 631 P.2d 46 (1981), holds that if the lawyer, in taking possession of evidence, destroys information relating to the evidence such as where it was found, that information is not privileged. The client in the Meredith case told his appointed counsel the location of a piece of evidence (the victim's wallet, located in a barrel in back of the defendant's dwelling). Counsel directed an investigator to retrieve the wallet. The investigator did so, thereby eliminating anyone else's ability to determine where the wallet had been found. Counsel turned the wallet over to the police without disclosing the location where it had been found. The prosecution argued that the location where the wallet was found was not privileged information. The court ruled:

[W]henever defense counsel removes or alters evidence, the statutory privilege does not bar revelation of the original location or condition of the evidence in question. We thus view the defense decision to remove evidence as a tactical choice. If defense counsel leaves the evidence where he discovers it, his observations derived from privileged communications are insulated from revelation. If, however, counsel chooses to remove evidence to examine or test it, the original location and condition of that evidence loses the protection of the privilege. Applying this analysis to the present case, we hold that the trial court did not err in admitting the investigator's testimony concerning the location of the wallet.

In the Meredith case the defendant would certainly have been better off if the attorney had not taken possession of the wallet. The California court tacitly approves this "let nature take its course" approach as an acceptable "tactical" choice.

Clark v. State 159 Tex. Cr. R. 187, 261 S.W.2d 339 (1953) (661)

Why should the poor innocent client suffer because his lawyer is a snake? Is the client supposed to know the proper bounds of legal conduct? Don't a court punish the client when it refuses to recognize the client's privilege? Whose privilege is it anyway?

In Re Ryder 263 F. Supp. 360 (E.D. Va.), affd, 381 F.2d 713 (4th Cir. 1967)(663)

This is the classic case of a lawyer who helped his client too much - by taking the gun and the money and stowing them away in his safe deposit box. Almost no excuse will get a lawyer out of a bind like this.

Hitch v. Arizona, 146 Ariz. 588, 708 P.2d 72 (1985) (670)

Another case where a court struggles with the duty of defense counsel with respect to evidence coming into her or his hands. In this case the court adopts a middle road, requiring the lawyer to turn over the evidence to the prosecution, but forbidding the prosecution to make any evidentiary use of the source of the evidence.

Smith v. Superior Court (Abbott Ford) 151 Cal. App. 3d 491 (1984)(678)

The good guys win one. Right after this opinion was handed down the folks at Abbott Ford found the wheel. What do you supposed happened after that? Settlement? No. First the plaintiffs amended their complaint to include a count for punitive damages. Then settlement.

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