When a criminal defense client hands the lawyer possible physical evidence, must the lawyer open it and turn it over to the prosecutor?

Plain-English summary

A criminal defense lawyer asked about a diary that the client, charged with rape of his daughter, had given to the lawyer. The diary had been kept by the daughter, and the lawyer did not know how the client obtained it; Child Protective Services had removed the daughter from the client's custody. The lawyer asked whether he was permitted to open the diary, and if so, whether he would be obligated to turn it over to the prosecuting attorney if it contained incriminating evidence.

After considerable discussion, the committee was of the opinion that it did not have enough facts to answer the question. It concluded that the lawyer's conduct would be governed by RPC 3.4(a) and RPC 4.4, and suggested the lawyer review those rules for guidance.

Currency note

This opinion was issued in 1992, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Did the committee decide whether the lawyer had to turn the diary over to the prosecutor?

A: No. The committee said it lacked enough facts to answer and pointed the lawyer to RPC 3.4(a) and RPC 4.4 for guidance.

Q: Which rules did the committee identify as governing?

A: RPC 3.4(a) (unlawfully obstructing access to or altering evidence) and RPC 4.4 (respect for the rights of third persons).

Background and rules framework

The committee declined to resolve the question on the facts presented, but identified the controlling rules: RPC 3.4(a), which bars a lawyer from unlawfully obstructing another party's access to evidence or unlawfully altering, destroying, or concealing it, and RPC 4.4, on respect for the rights of third persons. These correspond to ABA Model Rules 3.4 and 4.4.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 3.4 (fairness to opposing party; evidence); Washington RPC 3.4(a)
• ABA Model Rule 4.4 (respect for the rights of third persons); Washington RPC 4.4

See also

• NY State Bar Op. 479: Client's Past Crimes and Confidences
• NY State Bar Op. 620: DA Press Release on Evidence

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=575

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1495
Year Issued: 1992
RPC(s): RPC 3.4(a); 4.4
Subject: Lawyer's duty to turn over evidence given to criminal defense lawyer by client

The Committee reviewed your inquiry concerning a diary which your client, who is charged with rape of his daughter, gave to you. The diary had been kept by the daughter. You state that you do not know how the client obtained the diary. Child Protective Services has removed the daughter from the client's custody. You ask whether you are permitted to open the diary, and if so, whether you would be obligated to turn it over to the prosecuting attorney if it contained incriminating evidence.

After considerable discussion, the Committee was of the opinion that it did not have enough facts to be able to answer your question. However, the Committee concluded that your conduct would be governed by RPC 3.4(a) and RPC 4.4, and suggests you review those rules for guidance.