Incriminating Physical Evidence

Rule 5.1-2A of the Rules of Professional Conduct and rule 4.01(5.2) of the Paralegal Rules of Conduct provide that lawyers and paralegals must not counsel or participate in the concealment, destruction, or alteration of incriminating physical evidence or otherwise act so as to obstruct or attempt to obstruct the course of justice.

What is “physical evidence”?

In these rules, “physical evidence” does not depend upon admissibility before a tribunal or upon the existence of criminal charges. It includes documents, electronic information, objects, or substances relevant to a crime, criminal investigation, or a criminal prosecution. It does not include documents or communications that are privileged or that the lawyer or paralegal reasonably believes are otherwise available to the authorities.

When do the rules not apply?

This rule does not apply where a lawyer or paralegal is in possession of evidence tending to establish the innocence of a client, such as evidence relevant to an alibi. However, a lawyer or paralegal must exercise prudent judgment in determining whether such evidence is in fact exculpatory and therefore falls outside of the application of this rule. For example, if the evidence is both incriminating and exculpatory, improperly dealing with it may result in a breach of the rule and also expose a lawyer or paralegal to criminal charges.

What are some of the options for a lawyer or paralegal who is in possession of incriminating physical evidence?

Lawyers and paralegals are never required to take or keep possession of incriminating physical evidence or to disclose its existence. Possession of illegal things could constitute an offense. A lawyer or paralegal in possession of incriminating physical evidence should carefully consider his or her options, which may include consulting with a senior lawyer. These options include, as soon as reasonably possible:

  • Considering whether to retain an independent lawyer to provide advice about the lawyer’s or paralegal’s obligations. If retained, the lawyer or paralegal and independent lawyer should consider
  • whether the independent lawyer should be informed of the identity of the client and instructed not to disclose the identity of the instructing lawyer to law enforcement authorities or to the prosecution, and
  • whether the independent lawyer should, either directly or anonymously, taking into account the procedures appropriate in the circumstances
  • disclose or deliver the evidence to law enforcement authorities or the prosecution, or
  • both disclose and deliver the evidence to law enforcement authorities and to the prosecution.
  • Delivering the evidence to law enforcement authorities or to the prosecution, either directly or anonymously, taking into account the procedures appropriate in the circumstances.
  • Delivering the evidence to the tribunal in the relevant proceeding, which may also include seeking the direction of the tribunal to facilitate access by the prosecution or defence for testing or examination.
  • Disclosing the existence of the evidence to the prosecution and, if necessary, preparing to argue before a tribunal the appropriate uses, disposition, or admissibility of it.

What are the lawyer’s or paralegal’s duties with respect to client confidentiality and privilege?

Lawyers and paralegals should balance the duty of loyalty and confidentiality owed to the client with the duties owed to the administration of justice. When a lawyer or paralegal discloses or delivers incriminating physical evidence to law enforcement authorities or to the prosecution, the lawyer or paralegal has a duty to protect client confidentiality, including the client’s identity, and to preserve privilege.

What are some additional issues that lawyers and paralegals should consider?

Lawyers and paralegals have no obligations to assist the authorities in gathering physical evidence of crime, but cannot act or advise anyone to hinder an investigation or a prosecution. A lawyer or paralegal who becomes aware of the existence of incriminating physical evidence or declines to take possession of it must not counsel or participate in its concealment, destruction, or alteration.

A lawyer or paralegal may determine that non-destructive testing, examination, or copying of documentary or electronic information is needed. Lawyers and paralegals should ensure that there is no concealment, destruction, or alteration of the evidence and should exercise caution in this area. For example, opening or copying an electronic document may alter it. A lawyer or paralegal who has decided to copy, test, or examine evidence before delivery or disclosure should do so without delay.