Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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What are the ethical responsibilities of an attorney whose client informs the attorney that the client has stolen property and requests that the attorney take possession of the stolen property and condition its return upon agreement by the victim not to prosecute the crime.
An attorney who accepts stolen property from the client may not disclose the fact of the theft but may be required to disclose the property's possession and location. It is also a violation of law, against public policy, and therefore ethically improper to condition return of stolen property upon an agreement by the victim not to prosecute the crime.
Rule 7-101 of the Rules of Professional Conduct of the State Bar of California.
Business and Professions Code section 6068, subdivisions (a) and (e).
Client tells Attorney that Client has stolen property from an employer. Client requests that Attorney accept the stolen property and return it to the employer conditioned upon an agreement that the employer not inform law enforcement officials of the theft and not prosecute, should the crime be discovered by public authorities.
Business and Professions Code section 6068, subdivision (e) requires an attorney "[t]o maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client." Confidential communications between attorney and client even as they relate to a completed crime may not be disclosed. (See also, Los Angeles County Bar Association Professional Responsibility Committee Opinion No. 414 (1983); People v. Singh (1932) 123 Cal. App. 365.) Attorney has learned of any crimes and the stolen property from confidential communications with Client. The existence and possession of the stolen property is also a client secret. Therefore, the facts of the theft and the stolen property may not be disclosed unless the client authorizes disclosure. (Bus & Prof Code, section 6068, subd. (e).)
Client requests Attorney to take possession of and return the stolen property to Client's employer. There is a significant difference between being told in confidence of a completed crime and taking possession of fruits of that crime. If Attorney were to comply with Client's request, then Attorney would alter the state of the evidence as to both its possession and location. If Attorney were to take possession of evidence of a crime, Attorney would be required to reveal the attorney's possession of the property and its location. (State Bar Formal Opinion 1984-761; People v. Meredith (1981) 29 Cal. 3d 6822 People v. Superior Court (Fairbank) (1987) 192 Cal. App.3d 323.) Attorney should advise Client that Attorney's legal and ethical obligations will require the delivery to the court or to law enforcement physical evidence of a crime which comes into Attorney's possession and could require the Attorney to testify about the circumstances by which Attorney obtained such physical evidence. (See also, People v. Lee (1970) 3 Cal.App.3d 514, 526 where the appellate court denied a request to suppress work shoes stained with human blood, received by the court from the public defender's office, and subsequently turned over to the prosecution. The opinion reaffirms that "[i]t has been held 'an abuse of a lawyer's professional responsibility knowingly to take possession of and secrete the instrumentalities of a crime.' (In Re Ryder, 381 F.2d 713, 714)".)
It is ethically improper for an attorney to negotiate a private agreement not to prosecute a crime.4 Such an agreement not to prosecute a person for a crime has been held to be illegal and void. (Bowyer v. Burgess (1960) 54 Cal.2d 97, 100.) Further, statutory authority prevents the attorney from acquiescing to Client's request. Penal Code sections 1377, 5 1378, 6 and 1379 7 set out the limited instances where a civil claim arising from a crime may be compromised and criminal prosecution barred. (See also, Hoines v. Barney's Club Inc. (1980) 28 Cal.3d 603, 611; People v. Moulton (1982) 131 Cal.App.3d Supp. 10, 19-20.) Any such compromise must be approved by a court. (Pen. Code, 1378; Hoines v. Barney's Club Inc., supra, 28 Cal.3d 603, People v. Mouton, supra, 131 Cal. App.3d Supp. 10.)8
Since an attorney may neither violate any law (Bus & Prof Code, 6068, subd. (a)), nor advise the violation of any law (rule 7-101), Attorney's compliance with Client's request that Attorney obtain a private agreement not to prosecute a crime is ethically proscribed.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, and any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 State Bar Formal Opinion 1984-76 provides that the attorney should advise the client of the attorney's ethical and legal obligations with respect to the duty to deliver physical evidence of the crime to the prosecution if the attorney takes possession of such physical evidence. However, where the client informs the attorney of the location of the physical evidence of the crime, or the attorney merely observes it without taking possession, the attorney need not disclose to the prosecution either the property's location or physical observation of the same.
2 In People v. Meredith, supra, 29 Cal.3d at p.686, the California Supreme Court held that the trial court did not err in requiring a defense investigator to testify about his recovery of a victim's wallet from a trashcan at the direction of defense counsel who in turn had learned of the property's location from the client.
3 People v. Superior Court (Fairbank), supra, 192 Cal. App.3d at p.39, involved weapons used in charged crimes and not denied to be in possession of the defense attorney. That opinion states: "If counsel or/and agent of counsel chooses to remove, possess, or alter physical evidence pertaining to the crime, counsel must immediately inform the court of the action. The court, exercising care to shield privileged communication and defense strategies from prosecution view, must then take appropriate action to insure that the prosecution has timely access to physical evidence possessed by the defense and timely information about alterations of any evidence."
4 An attorney may negotiate an agreement which settles private civil claims provided that it does not restrict prosecution of criminal conduct.
5 Penal Code section 1377 provides: "When the person injured by an act constituting a misdemeanor has a remedy by a civil action, the offense may be compromised as provided in the next section, except when it is committed:
1. By or upon an officer of justice, while in the execution of the duties of his office;
2. Riotously;
3. With an intent to commit a felony;
4. In violation of any court order as described in section 273.6, unless the offense charged is the first such offense committed by the defendant against the family or household member under section 273.6."
6 Penal Code section 1378 provides:
"If the person injured appears before the court in which the action is pending at any time before trial, and acknowledges that he has received satisfaction for the injury, the court may, in its discretion, on payment of the costs incurred, order all proceedings to be stayed upon the prosecution, and the defendant to be discharged therefrom; but in such case the reasons for the order must be set forth therein, and entered on the minutes. The order is a bar to another prosecution for the same offense."
7 Penal Code section 1379 provides:
"No public offense can be compromised, nor can any proceeding or prosecution for the punishment thereof upon a compromise be stayed, except as provided in this Chapter [i.e. Penal Code sections 1377 and 1378.]"
8 Further, if the attorney were to request payment for services to negotiate an agreement to conceal or abstain from the prosecution of a crime, there could be a violation of Penal Code section 153. (See People v. Pic'l (1982) 31 Cal.3d 731.)
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