If a friend of a criminal client hands the lawyer physical evidence of the crime, must the lawyer report it, take it, or turn it over?

Plain-English summary

A client in police custody on a non-violent property offense retained an attorney. A friend of the client later told the attorney that, while feeding the client's pets at the house, he had found objects that were probably evidence of the offense, had taken possession of them, and offered them to the attorney. The inquiry asked whether the lawyer had a duty to disclose the friend's information, a duty to take the evidence, and, if he took it, a duty to turn it over.

On disclosure, the committee concluded the lawyer is not only under no duty to disclose but is ethically obligated not to. Even if the information is not privileged (it came from a third party, not a confidential client communication), it is at least a "secret" under former Rule 4-101(a) because it was gained in the professional relationship and its disclosure would likely be detrimental to the client; the lawyer must keep it confidential until the client releases him or a valid court order requires disclosure.

On taking possession, the committee concluded no provision of the Code requires the lawyer to accept the evidence, though he might choose to. It noted that an object that comes into the lawyer's possession is generally privileged, with exceptions for contraband, instrumentalities, or fruits of the crime, which the lawyer must turn over to the State without any duty to say where they came from. On whether the items remain privileged once taken, the committee said that is largely a question of law, not ethics, and is unsettled; it cited People v. Doe (Ill. App. 1978), where a suicide note delivered by the client's family was held not privileged, and flagged the Illinois evidence-concealment statute (ch. 38, sec. 31-4) as a concern any lawyer taking such items would have to assess.

Currency note

This opinion was issued in May 1989, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rule (Rule 1.6(a)), while cautioning that the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Must a lawyer report incriminating information a client's friend tells him?

A: The opinion concluded no; the lawyer is ethically obligated not to disclose it, because it is at least a "secret" under former Rule 4-101(a) gained in the professional relationship whose disclosure would harm the client.

Q: Does a lawyer have to take physical evidence a third party offers him?

A: Per the opinion, no provision of the Code requires the lawyer to take possession; he may decline, though he might choose to take it to assess whether it helps or hurts the client.

Q: If the lawyer takes the evidence, must he give it to the State?

A: The opinion concluded that contraband, instrumentalities, or fruits of the crime must be turned over to the State, without a duty to disclose their origin; whether the items remain privileged is an unsettled question of law, and the lawyer should consider the evidence-concealment statute.

Background and rules framework

The opinion applied former Illinois Code Rule 4-101(a) and (b), governing the preservation of client confidences and the broader category of "secrets." The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 1.6(a), corresponding to ABA Model Rule 1.6. The opinion treated the question of whether physical evidence retains privilege, and the application of the concealment statute, as matters of law beyond the committee's ethics jurisdiction.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 4-101(a), (b) (former Code, applied in the opinion)
• Illinois RPC 1.6(a) (2010 equivalent per the Board's affirmation)
• MR 1.6 (confidentiality)

Statutes:

• Ill. Rev. Stat. ch. 38, sec. 31-4(a) (concealing evidence; class-four felony)

Cases:

• People v. Doe, 59 Ill. App. 3d 627, 375 N.E.2d 975, 16 Ill. Dec. 868 (Ill. App. 1978), suicide note delivered by a third party held not privileged

See also

• ISBA Ethics Op. 88-07: Suing a Former Government Client With "Public" Confidences
• ISBA Ethics Op. 88-17: Duty to Report a Disbarred Lawyer's Conduct

Source

• Landing page: https://www.isba.org/ethics/opinions/8813