Colorado Criminal Lawyer Series – When Can You NOT Trust Your Lawyer?
Colorado Criminal Lawyer Series – When Can You NOT Trust Your Lawyer? – The trust that must be present between a lawyer and their client is absolute. What clients don’t realize is that – unlike other professions such as medicine and religion – a lawyer serves two masters .
A criminal defense lawyer – like all lawyers – is also an “officer of the court.” What that means is there are ethical laws and other rules that govern the lawyer’s conduct at all times. This article addresses some of the issues that exist in this no man’s land that often tears lawyers apart at the seams.
Two Competing Masters – Incriminating Physical Evidence Handed To The Criminal Defense Lawyer
When a client gives incriminating evidence to their lawyer – that lawyer – usually a criminal defense lawyer – has a legal and affirmative ethical duty to surrender that incriminating physical evidence to the authorities and NOT retain it in his or her possession.
However, when the lawyer surrenders the evidence, the lawyer CANNOT reveal the identity of the client or ANY confidential communications from that client. Furthermore – the lawyer cannot in any way alter or disturb the evidence he or she is mandated to release to the authorities.
Finally – if the client decides not to give the evidence to his or her lawyer, the lawyer must still advise the client to surrender the evidence or, if the client does not have the evidence on him or her – to leave the evidence where it is.
Under these circumstances the lawyer need not do more than advise his or her client to voluntarily disclose the location of the evidence.
The classic fact pattern in these situations is when a client has used a gun in the commission of a crime and then asks his or her lawyer to “hold it” for them, or tells the lawyer where the gun is “stashed.”
Understanding The Tension Between Client Loyalty And A Lawyer’s Duty “To The Court”
A lawyers duty to the client is among the highest duties under our laws. The lawyer’s duty of loyalty to the client however – as noted – can compete directly with the lawyer’s duty of disclosure to the authorities as an “officer of the court.”
The lawyer’s duty of loyalty arises from a mix of the ethical duty to preserve a client’s confidences and the duty to represent his client zealously.
The attorney-client privilege – C.R.S. § 13-90-107(b), is:
“to secure the orderly administration of justice by insuring candid and open discussions by the client to the attorney without fear of disclosure.”
A criminal defense lawyer cannot:
“reveal a confidence or secret of his client,” and cannot “[u]se a confidence or secret of his client to the disadvantage of the client.”
A “confidence’ is any information that is protected by the attorney- client privilege. A ‘secret’ refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.”
The Duty To Reveal A “Fraud On The Court”
The lawyer is also required to reveal a fraud being perpetrated by the client upon a tribunal (such as a court) as long as the information is NOT protected by the attorney-client privilege. The duty to disclose only exists IF the “unprivileged client conduct” involves actual affirmative misrepresentations made to a court and does not extend to harmful material facts that could prejudice the case of the client.
The Duty To Snitch – Where A Client Intends To Commit A New Crime
The duty not to disclose client confidences and secrets does not include secrets that involve “[t]he intention of his client to commit a crime and the information necessary to prevent the crime.” Here – the law commands that a lawyer not “[c]onceal or knowingly fail to disclose that which he is required by law to reveal.” and it requires that a lawyer “not suppress evidence that he or his client has a legal obligation to reveal or produce.”
The Duty NOT To Conceal Incriminating Evidence – Accessory To A Crime
Colorado makes conduct criminal if anyone, including a lawyer, “renders assistance” by helping a person “conceal, destroy or alter any physical evidence that might aid in the . . . prosecution . . . of such person.” C.R.S. § 18-8-105(2)(e).
This is known as the being an accessory to crime or “complicity” – if a person intends to “hinder, delay, or prevent the discovery, detection, apprehension, prosecution, conviction, or punishment of another for the commission of a crime” – they may be guilty as an accessory. Both accessory and complicity are the kind of crimes that hold a person criminally liable even if they were not present during the commission of the crime.
If a lawyer or anyone actually assists in the commission of a crime (complicity), or assist before or after the crime (accessory), that person may be charged under the Colorado criminal code. If the action is performed as accessory to a felony- the charge is a lesser felony.
The Intentional Destruction Of Evidence In A Criminal Case – Colorado Tampering With Evidence 18-8-610
Any person, (including a lawyer), who “[d]estroys, . . . conceals, removes, or alters physical evidence with intent to impair its verity or availability in the pending or prospective official proceeding . . .” commits the Colorado felony crime of tampering with physical evidence under C.R.S. § 18-8-610.
This gets buy tadalafil 10 mg tricky when a criminal defense lawyer who – in defending the interests of his or her client intentionally alters the crime scene by manipulating a piece or pieces of evidence at that scene to better represent the accused. While it is still very clear that the lawyer cannot disclose any communications between the lawyer and client even in this situation – the lawyer has a duty to leave the scene in the same condition in which he or she found it. If fingerprints are smudged, if forensic evidence of any kind is destroyed – the lawyer can be prosecuted for the crime of Criminal Tampering with Evidence.
Every case is factually different than every other case, but the general rule is – the duty of client loyalty to the client under these circumstances must yield to the lawyer’s duty as an “officer of the court.”
But Compare: The Observation Of Incriminating Evidence During The Investigation
Observations of a crime scene – as opposed to tampering with it – presents a different balancing outcome. A criminal defene lawyer has no “duty of disclosure” where he or she observes incriminating evidence as the result of a lawyer-client representation or communication from a client.
Under these circumstances – the lawyer must have the client’s permission before there is disclosure to the authorities and then – even with such permission – disclosure can only take place IF it is in the client’s best strategic interest. Therefore, if a criminal defense lawyer – sees the crimes scene – but does not take anything from the scene – disclosure is not only unnecessary – it would be a breach of ethics for the lawyer to disclose unless it is under these rules.
Also, a criminal defense lawyer must – under these circumstances – advise the client not to alter or destroy evidence and inform the client to leave the evidence where it is. This is based on the duty of the lawyer to not advise or assist a client “in conduct that the lawyer knows to be illegal or fraudulent.”
Taking Samples Of Evidence For Testing – A Complex Problem
Let’s now say that a criminal defense lawyer removes material from an alleged victim’s fingernails in an assault investigation and then has that evidence tested pursuant to a potential defense of self defense. Here the results of the testing must be released to the prosecutor. While the scraping, of course, is an alteration of physical evidence which disturbs the crime scene, cases construing this kind of situation have held that a criminal defense lawyer who takes possession of physical evidence for scientific testing on behalf of his client is acting ethically in the attempt to zealously establish the client’s innocence.
Tactically, however, this may be a mistake, because once this removal and testing occurs – ALL results must be turned over to the prosecution – sometimes this can backfire. The criminal defense lawyer must make a tactical decision before taking and testing the sample because voluntary disclosure may actually damage his or her case.
The rules governing attorney-client communications are more complex than may be believed by the general public – I hope this article helps shed some light on that complexity.
Colorado Criminal Lawyer Series – When Can You NOT Trust Your Lawyer?
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