If a lawyer receives evidence of a crime, he cannot alter or change it.

I am a criminal defense lawyer and my client has given me a gun that apparently was used in the commission of a crime. I would like to have the gun tested for fingerprints and whether it was recently fired. I also would like to have the gun cleaned. Can I do so?

Samuel C. Stretton.

The answer to the question is no. If you do so, you may not be practicing law much longer. Lawyers should know that when they receive evidence of a crime, they cannot alter or change it. In fact, a lawyer should not take evidence from a crime scene if the lawyer should happen to find it. A lawyer can't change the evidence or tamper with it in any way, shape or form.

Rule of Professional Conduct 3.4 sets forth a lawyer's duty when they find evidence of a crime. Rule 3.4 of the Rules of Professional Conduct states as follows: "A lawyer shall not unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value or assist another person to do any such act."

Comment 1 says it all: "The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure and the like."  Se

Comment 2 to Rule 3.4 notes: "Applicable law may permit a lawyer to take temporary possession of physical evidence of a client's crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence."

The requirements go back to the famous case of Commonwealth v. Stenhach, 514 A.2d 114 (Pa.Super., 1986). Public defenders George and Walter Stenhach were indicted for not turning over the murder weapon. Although they were ultimately acquitted on the fact that the criminal statute was too vague, the case established rules for the handling of evidence of a crime.

Evidence, which in that case was a gun found at the scene of the crime, must be turned over to the district attorney. It is an exception to the attorney-client privilege, but in return, the district attorney cannot tell the jury or the fact finder where the gun was recovered from.

Therefore, how a lawyer handles physical evidence is very important. One example of a problem is when a lawyer is handed by their clients a tape that was recorded without the consent of the other person. That tape may be evidence of a crime and may even help one's client. But the tape is illegal because it violates the wiretap rule in Pennsylvania that requires the consent of both persons. Under the wiretap rule, even to listen to such a tape would be a felony of the third degree.

If a client produces the tape and a lawyer tells the client it is illegal, what is a lawyer's obligation at that point? Clearly, a lawyer can't tell the client to take it home and erase the tape. That would not be a good decision. On the other hand, it doesn't appear that the lawyer has a duty at that point to turn the tape over to the district attorney. The best practice would be for the lawyer to hold the tape and then evaluate regularly whether or not there is a need to turn it over under Rule 3.4 and the Stenhach case.

Receiving evidence of a crime or evidence in civil litigation often creates a dilemma for attorneys. Many lawyers believe the evidence falls within the attorney-client privilege and, therefore, they don't have to reveal it. But that's not the case as seen by Rule of Professional Conduct 3.4 and the above Stenhach case. Rational decisions have to be made. But a lawyer has to remember they are an officer of the court first and a professional. Although they owe a duty to their client, there are exceptions to the attorney-client privilege involving physical evidence of a crime. The day of telling the client to throw the evidence away or hiding the evidence in the law firm's office are long gone. There is one reason why law is a profession and not just a business. Ethics and professionalism place a duty on the lawyer to the judicial system. Once lawyers understand that, it is easy to understand why the duty is not to destroy the evidence or alter it.

Attorneys should not tell witnesses not to cooperate with the other side.

I have a trial coming up and the other side wants to talk to some of the witnesses. This is a criminal case. Can I tell the witnesses not to talk to the district attorney or in a civil case not to talk to opposing counsel?

The Rule of Professional Conduct, Rule 3.4(c), is fairly clear that a lawyer cannot give advice to a witness other than a client or a client's relative or employees of the client to not speak to the district attorney or, in a civil case, the opposing party. The exception as noted in the rule if the person is a relative or employee of a client corporation. The other exception is if the lawyer reasonably believes that the person's interest will not be adversely affected from refraining from giving such information and such conduct is not prohibited by Rule 4.2. Rule 4.2 of the Rules of Professional Conduct is a rule that precludes a lawyer from talking to someone represented by counsel in the underlying litigation. The main rule to review is Rule of Professional Conduct 3.4(d).

Therefore, if a witness already has counsel then the lawyer would tell the person to seek the advice from their attorney. The lawyer can only tell them to speak to their attorney.

This is a good practice because it's not a good thing to tell witnesses not to cooperate with the other side. Again, it undermines the adversary system.

For unrepresented witnesses, Rule 3.4(d) prohibits the lawyer from telling the witnesses not to speak to opposing counsel. A lawyer can tell the witness that they prefer the witness not talk to the other side, but the lawyer cannot tell a witness not to or facilitate the witness in not doing so. Again, the exception is family members of the client and employees of the client.

The adversary system must maintain some basic fairness. Hiding evidence or preventing witnesses from coming forward undermines the very concept of the adversarial system.

Many lawyers look at litigation as a war or battle. Although that plays well with clients and in the popular media, that is not what trials are about. Trials are in essence facts, law and argument done by experienced and professional people attempting to do justice. The lawyer, no matter how zealous the lawyer may be, cannot justify hiding evidence, falsifying evidence or telling witnesses not to cooperate. That is against the whole purpose and spirit of the rules of conduct and the fairness of the adversary system.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.