Law professors love to torture their students with this scenario: The client, a defendant in a murder case, comes to your office with a brown paper bag. He hands you the bag and says, “You decide how to deal with it.” Of course, the existence of the gun might be extremely damaging, and you never want it to surface. While you can neither toss it into the sewer nor tell your client to do so, it certainly does you no good for your client to take the gun home. Taking into consideration a lawyer’s legal and ethical responsibilities, as well as his defense strategy, the defense counsel’s decision-making here will be difficult at best.1
Nowadays, however, the more typical situation that likely keeps the criminal bar awake at night is where the client comes to his lawyer with evidence actually helpful to his defense, but which he obtained by (likely) violating the lawwhether by traditional theft or, these days, via computer hacking. For a lawyer may expose himself criminally, or at least ethically, if he tries to use the evidence so obtained, thereby acknowledging its existence. Using the evidence could also expose the client to additional criminal liability. Then too, the possibilities that a court may rule the evidence inadmissible and that the lawyer may risk discipline or even prosecution, may factor into whether the attorney decides to “surface” the material.
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