Michigan Legal Ethics – May an Attorney Possess Evidence of a Client’s Criminal Activity?

[Kronzek Cronkright]

Imagine a situation where a client commits an armed robbery. Knowing it would be very harmful if law enforcement conducts a lawful search of their home and finds the gun used in the robbery, the client gives the gun to their attorney for safekeeping. One might think it would be acceptable for the attorney to keep the gun hidden from law enforcement because of the attorney-client confidentiality rules. However, concealing evidence of a crime or destroying such evidence puts the attorney at risk of violating multiple laws and professional ethics rules. As Michigan criminal defense lawyers, we are often faced with situations where we are aware of confidential information regarding our clients’ criminal activity, and we strive to follow all the rules of professional ethics when it comes to dealing with that information.

In a publication from the National Association of Criminal Defense Lawyers, author Evan A. Jenness breaks down evidence of a client’s crime into two main categories. The first category is the actual contraband or instrumentalities the defendant used to commit a crime. This would include things such as illegal narcotics, fake IDs, or a lock-pick. An attorney’s ethical duty to not hide or destroy evidence comes into play here. The attorney who possesses such items should take some action to get rid of—but not destroy—the items. Otherwise, the attorney could face criminal charges of their own. The second category of evidence of a client’s crime noted by Ms. Jenness is ordinary items that were not directly used to commit the crime, but that implicate a client because of their content. These can include bank records, phone records, and emails. Jenness writes that, unlike the first category of evidence, “mere possession of ordinary evidence is not a crime requiring counsel to stop possessing the evidence…In most situations, counsel is not obligated to provide law enforcement with ordinary evidence unless a subpoena, court order, discovery obligation, cooperation agreement, or the like mandates disclosure.”

The attorneys at Kronzek & Cronkright, PLLC take representation of our clients very seriously. We will maintain our clients’ confidentiality until this is no longer legal. We take a team approach to criminal defense, meaning we view the client and the attorney as being on the same defense team during the representation. We have over 80 years of combined experience defending our clients from criminal charges. Let us put that experience to work for you!