Ethics & The Law: Caught in a Trap

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The following query was submitted to the Ethics Committee, whose hotline can be reached at 512-646-2734.

Here’s the background of my case:

The father of a 20-year-old son calls my office to represent the son on aggravated sexual assault allegation from six to seven years ago involving a female cousin. The cousin would have been about five or six at the time of the alleged offense and my PNC would have been 12 to 14. 

Female cousin “outcrys” in May of this year by giving a note to her sister describing the allegation. Her sister gives the note to their mom and Mom either gives the note or describes it to a counselor/therapist during a session.  Counselor/therapist tells Mom to report it to law enforcement or counselor/therapist would report under mandatory reporting duty.  

My PNC’s dad is the uncle of the mom of the complaining witness. Apparently, the family is pretty close-knit and everyone spends lots of time at Grandma’s house (PNC’s dad’s mother).

In our conversation, my PNC’s dad tells me he found an old computer at Grandma’s house. The computer belongs to the mom of the complaining witness. 

My PNC’s dad decides to go through the computer and tells me he finds several images of child pornography and bestiality. My PNC’s dad told me the images were actually named “9 year old,” “11 year old,” and so on. My PNC’s dad also finds videos/images of the complaining witness’ mom engaged in sexual activity with an adult male.

My PNC’s dad believes this computer can help his son.     

The computer is old, probably 2000-model desktop. Grandma did not complain about it being taken out of the house. Sounds like multiple people have had access to the computer, including the complaining witness and my PNC. My PNC is the person who told Dad he found the images on the computer. Dad took the computer and told Grandma (his mother) that he was taking it to law enforcement. Dad took possession of the computer sometime this week.

The complaining witness does not live there now, but did live there when she was in high school and the computer has been there ever since. Dad tells me that the images he found were dated 2002 and 2003.

I have not yet even talked to the Son, whom Dad asked me to represent. In the course of his consultation, I learned Dad has possession of child pornography, which I know are federal and state crimes. I advised Dad of this and the need to address the situation with law enforcement.

Question 1: Who is my client now? I have never given advice to the son, only Dad regarding Dad’s possession of child pornography.

Question 2: How do I keep myself out of “aiding and abetting or a party to” Dad’s continued possession of child pornography in violation of Texas and U.S. criminal law?

Question 3: How can I ethically facilitate the transfer of the child pornography to law enforcement?

Question 4: Can I still ethically represent the son in the underlying sex assault allegation?

ANSWERS

Keith Hampton

I don’t know what PNC means, but here are my answers in your emergency situation:   

As I understand it, the father is the only person you’ve offered legal advice to, so he is your client (Tex.R.Evid. 503).  Son is accused of sexual assault seven years after it allegedly happens.  I’m not seeing an ethical conflict (no opinion on legal conflict), but I also don’t know what the computer reveals.  Are both implicated?  If the father is not, your duty is to him, not the son, even if it means that the child porn hurts the son.  

You also say the father goes through his own mother’s house and finds Mom’s 10-year-old computer with child porn on this old computer that various people had access to.  Father now possesses someone else’s computer with child porn images.  Unless the father is implicated, then you turn it over to law enforcement.  If it does implicate your client – the father – then you take precautions to protect him. 

Joseph Connors

I have a problem with you trying to represent both the dad and the son, since ultimately you will probably have to withdraw from representing either of them.

  1. Get the computer to law enforcement and out of Dad’s possession as soon as possible.
    Tell Dad what he needs to know and get the computer to law enforcement as soon as possible. The best strategy is for YOU to hire another attorney to turn in the computer to local law enforcement; but your lawyer cannot disclose who hired him or where he got the computer from. The financially cheaper strategy is Dad turns in the computer to local law enforcement, who will question him where he got computer from and who downloaded the child pornography. The middle strategy is that you fax the DA a letter that a client has hired you to turn in a computer containing some child pornography, and you are inquiring as to which law enforcement agency you should turn the computer into.

  2. Rule One is get your fee up front and only represent ONE in a criminal affair (two relatives with different crimes are too interconnected – each may be a star witness for the other and each needs separate counsel from DAY ONE, plus DA may offer one a great deal or immunity to testify against the other!), so:
    Inform Dad that he is the only person who can hire you in this affair.  Refer Dad to another marvelous defense lawyer, whom the son can hire on the aggravated sexual assault allegation. Inform Dad that local police or the sheriff will want a statement of the accused admitting to the allegation. Tell Dad to tell his son not to talk at all to any law enforcement.

  3. You ask:

Question 1: Who is my client now? I have never given advice to the son, only Dad regarding Dad’s intentional possession of child pornography to aid son’s case.

Answer 1:  I agree with Keith. Your client is Dad, though Dad will say he does not need an attorney and will personally go turn in the computer to the police. Can you trust Dad to do that?  Or are you unwittingly giving Dad all the info he needs to destroy the computer’s hard drive (which is tampering with evidence, a state and federal felony)?

Question 2: How do I keep myself out of “aiding and abetting or a party to” Dad’s continued possession of child pornography in violation of Texas and U.S. criminal law?

Answer 2: Get the computer from Dad with a written letter signed by Dad asking you to turn the computer over to law enforcement. You keep that letter confidential and safe to cover your ass later on if Dad accuses you of criminal conduct by knowingly possessing child pornography.

Question 3: How can I ethically facilitate the transfer of the child pornography to law enforcement?

Answer 3:  Read A above.

Question 4: Can I still ethically represent the son in the underlying sex assault allegation?

Answer 4:  Read first answer above.

Thanks to Joseph Connors, Keith Hampton, Robyn Harlin, and Sharon Bass for helping with this article.

TCDLA
TCDLA
Robert Pelton
Robert Pelton
Robert Pelton is the former President of the Harris County Criminal Lawyers Association (HCCLA), Associate Director for TCDLA, and Feature Articles Editor of the Voice, as well as serving as editor and assistant editor of Docket Call. Among his many honors, Robert was named by H Texas magazine as one of the top criminal lawyers in Harris County (2004–2010) and one of Houston’s Top Lawyers for the People in criminal law (2004–2010), and he is listed in the Martindale Hubbell Bar Register of Preeminent Lawyers. Robert has offices in Abilene and Houston.
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