Ethics Docket No. 1990-24

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1990-24

Lawyer Given Money from Criminal Act

Your letter sets forth the following facts. You represent a defendant in a criminal case concerning charges dealing with the theft of a large sum of money. Most of the money was recovered by the police based on information provided by your client. Your client's family found and delivered to you more money which. you have "confirmed" is from two sources: the crime with respect to which you represent your client, and a separate, unrelated and uncharged crime committed by your client. The money was delivered in a bag which can be identified as belonging to your client.

You have raised six questions concerning your duties arising out of the foregoing circumstances. In answering these questions, the Committee bases its opinions on the fact that you have "confirmed" that the money delivered to you by the client's family clearly represents money stolen by your client, so that there is no question about this issue. Based on this fact, the Committee's responses to your six questions are as follows:

1. Your first question is what you should do with the stolen money. The Committee is of the opinion that you have an obligation to see to it that the stolen money is returned (either by you or someone else) to the appropriate authorities. There are several bases for the Committee's opinion.

Rule 8.4(b) of the Maryland Rules of Professional Conduct provides that "it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." Rule 8.4(d) provides that it is also considered to be professional misconduct for a lawyer to "engage in conduct that is prejudicial to the administration of justice." In a somewhat similar vein, Rule 3.4(a) provides that a lawyer shall not "unlawfully .. . conceal... material having potential evidentiary value."

The Committee believes that if you were to retain the admittedly stolen money, you arguably would be committing a criminal act constituting "theft" as described in Article 27, Sections 341 and 342 of the Maryland Annotated Code. In doing so, the Committee believes that such conduct would violate the foregoing cited Rules. Although there is no Maryland precedent with respect to this issue, the Court of Special Appeals, in Spencer v. State, 76 Md. App. 72 (1988), at n.2., cites numerous cases from other jurisdictions which, under circumstances similar to yours, have held that evidentiary items must be turned over to the appropriate authorities. See also In Re Ryder, 381 F.2d 713, 714 (4th Cir. 1967), where the Fourth Circuit, applying the Virginia Ethics Rules, held that "it is an abuse of a lawyer's professional responsibility knowingly to take possession of and secrete the fruits and instrumentalities of a crime."

Accordingly, the Committee believes that you must see to it that the stolen money is returned to the appropriate authorities. We also want to note that your circumstances differ from those set forth in Ethics Opinion 89-30, which dealt with a factual situation where the lawyer had suspicions that certain money delivered to him may have been stolen, but where that lawyer's client told the lawyer that the funds represented lottery winnings. Under those circumstances, we opined that the lawyer was not under an obligation (absent receiving a subpoena) to turn over the funds.

2. Your second question is whether your obligations differ depending upon whether the money received is attributable to the charged crime or to the uncharged crime. The Committee believes that your ethical obligations are the same, regardless of whether the stolen monies relate to a charged or uncharged crime admittedly committed by your client. The Rules cited above would apply in either instance, there being nothing in the Rules to draw a distinction between these situations since the money must be considered stolen regardless of whether or not a criminal charge has been brought.

3 & 4. The next two questions you ask are whether you must identify the case associated with the stolen funds if you turn the money over, and whether you may give the stolen money to an officer of the court to turn in, keeping secret your client's involvement. In answering both of these questions, it is important to distinguish your obligation with respect to stolen monies versus your obligation to your client to zealously defend him and to preserve the confidential relationship which you have with your client. The cases referred to in Spencer v. State, supra, while requiring a lawyer to turn over stolen evidence, nevertheless require the lawyer to protect the confidential communications between the lawyer and client. Thus, you have an affirmative obligation under Rule 1.6(a) not to reveal information relating to the representation of your client. You should not reveal to the authorities the crimes pertaining to the stolen funds nor your client's involvement in those crimes. These are "testimonial" matters which you should protect, and, therefore, which involve an obligation different from your obligation to return the stolen tangible evidence. We leave it to your discretion and ingenuity as to how you directly or indirectly return the stolen money to the proper authorities.

5. Your fifth question is whether you are "protected by attorney/client privilege for the evidence provided by family if its illegal nature is confirmed only by my client." Although the Committee is not sure what you are seeking in this question, the scope of the attorney/client privilege is a legal matter, and this Committee does not render opinions on legal matters. Your question does not in any way change the Committee's opinion regarding your ethical obligations, as discussed above.

6. Your last question is what obligation you have with respect to the bag delivered to you, inside of which was the stolen money. Your inquiry indicates that the bag can be identified as belonging to your client. If the bag itself was stolen as part of the crimes committed by your client, then the bag must be viewed as tangible evidence, and you must turn it over to the appropriate authorities pursuant to the Rules discussed above. On the other hand, if the bag was not stolen but properly belongs to your client, then you have no obligation to deliver the bag to the appropriate authorities; indeed, you may be violating the confidentiality provisions of Rule 1.6 if you were to do so.