Can a criminal-defense lawyer take possession of stolen property to return it, accept a retainer that may be the fruits of a crime, or take custody of a client's murder weapon?
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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.
Plain-English summary
The opinion addresses three criminal-defense scenarios. Defendant A, charged with theft, asks Lawyer A to take possession of the stolen property and return it to the victim. Defendant B, charged with obtaining money under false pretenses, wants to pay Lawyer B a large advance retainer. Defendant C, accused of murder, asks Lawyer C to take possession of the murder weapon.
On returning stolen property, the opinion concludes Lawyer A may assist in returning stolen property to its lawful owner absent a separate unlawful purpose, consistent with the client-objectives provision of Oregon RPC 1.2(a).
On the retainer, the opinion turns on the lawyer's knowledge. If Lawyer B knows the funds are the fruits of a crime, Lawyer B cannot accept them, because ORS 164.095 bars receiving stolen property, Oregon RPC 8.4(a)(2) bars a criminal act reflecting on fitness, and Oregon RPC 1.2(c) bars assisting conduct the lawyer knows is illegal. If Lawyer B does not know the funds are the fruits of a crime, Lawyer B may ethically accept and retain them. "Knows" means actual knowledge, which may be inferred from the circumstances (RPC 1.0(h)).
On the murder weapon, the opinion concludes Lawyer C may not accept evidence of a crime unless the lawyer makes it available to the prosecutor. A lawyer who comes into possession of information linking a client to a crime is ordinarily barred by the duty of confidentiality (ORS 9.460(3); Oregon RPC 1.6) from voluntarily disclosing it, but accepting physical evidence such as the weapon implicates the bar on tampering with evidence (ORS 162.295) and the prohibition on conduct prejudicial to the administration of justice (Oregon RPC 8.4(a)(4)). The lawyer may deliver the weapon to the prosecutor anonymously or through an intermediary to avoid implicating the client.
In practice
The opinion holds that, under the Oregon rules and criminal statutes as they stood at the time of the opinion, returning stolen property to its owner is permitted, accepting a retainer turns on whether the lawyer knows the funds are crime proceeds, and a lawyer cannot retain physical evidence of a crime without making it available to the prosecutor. The analysis turns on the lawyer's actual knowledge of the funds' source and on the distinction between holding information linking a client to a crime (protected) and holding physical evidence of the crime (which must be turned over). Verify the current text of Oregon RPC 1.2, 1.6, and 8.4 and ORS 164.095 and 162.295 before relying on any specific point.
Common questions
Q: Can I take stolen property from my client to return it to the victim?
A: Yes, absent a separate unlawful purpose. The opinion concludes a lawyer may assist in returning stolen property to its lawful owner under RPC 1.2(a).
Q: Can I accept a retainer that might be the proceeds of my client's crime?
A: Only if you do not know it is. The opinion concludes a lawyer who knows the funds are the fruits of a crime cannot accept them, but a lawyer who does not know may accept and retain them.
Q: Can I hold my client's murder weapon for safekeeping?
A: No, not without turning it over. The opinion concludes a lawyer may not accept evidence of a crime unless the lawyer makes it available to the prosecutor, though delivery may be anonymous or through an intermediary.
Background and rules framework
The opinion interprets Oregon RPC 1.2(a) and (c) (scope of representation; not assisting illegal conduct), corresponding to Model Rule 1.2; Oregon RPC 8.4(a)(2) and (a)(4) (criminal acts reflecting on fitness; conduct prejudicial to the administration of justice), corresponding to Model Rule 8.4; and Oregon RPC 1.6 (confidentiality), corresponding to Model Rule 1.6, against ORS 164.095 (receiving stolen property) and ORS 162.295 (tampering with evidence).
Citations and references
Rules of Professional Conduct:
- Oregon RPC 1.2(a), 1.2(c) / Model Rule 1.2 (scope; not assisting illegal conduct)
- Oregon RPC 8.4(a)(2), 8.4(a)(4) / Model Rule 8.4 (criminal acts; prejudicial conduct)
- Oregon RPC 1.6 / Model Rule 1.6 (confidentiality)
Statutes:
- ORS 164.095 (receiving or retaining stolen property)
- ORS 162.295 (tampering with physical evidence)
- ORS 9.460(3) (duty to maintain client confidences)
Cases:
- People v. Belge, 50 AD2d 1088, 376 NYS2d 771 (App Div 1975), aff'd, 41 NY2d 60, 359 NE2d 377 (1976)
- In re Ryder, 381 F2d 713 (4th Cir 1967)
- In re Albrecht, 333 Or 520, 42 P3d 887 (2002)
Other opinions cited:
- OSB Formal Ethics Op. No. 2005-34 (confidentiality and information linking a client to a crime)
See also
- OSB Ethics Op. 2005-34: Client Perjury
- OSB Ethics Op. 2005-92: Assisting a Client in Breach of Contract
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2005-105.pdf
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