Texas criminal defense lawyers who have received physical evidence incriminating their clients are in an ethical no-man’s-land and vulnerable to prosecution. There is currently no clear ethical rule to guide the defense lawyer and no real protection from being used as a law enforcement tool against your own client. This article explores some of the dimensions of counsel’s dilemma and ultimately recommends that TCDLA undertake a determined effort to amend the Texas Disciplinary Rules of Professional Conduct (and get a new Code provision) with a specific rule that informs defense counsel about what course of action he or she should take. I also recommend putting the “Special Rule” regarding the attorney-client privilege back into the Code of Criminal Procedure and a new rule giving lawyers due process and protection to discourage targeting defense lawyers and their law offices.
Cold Comfort
The Texas criminal defense lawyer who possesses evidence that incriminates his client may find comfort regarding the crime of tampering with physical evidence. Section 37.09 of the Penal Code provides that a person commits an offense when “knowing that an investigation or official proceeding is pending or in progress, he . . . alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding[.]” Unless your client has appeared in your office with no “pending” investigation, your receipt of incriminating physical evidence can subject you to prosecution. However, none of these criminal provisions apply under Section 37.09’s subsection (b) “if the record, document, or thing concealed is privileged or is the work product of the parties to the investigation or official proceeding.” In light of statutory law, how well-protected are you under Texas law against prosecution, even as a sort of academic exercise?
If Subsection (b) is read as an exception, the prosecution will have to allege and then prove beyond a reasonable doubt that the “record, document, or thing” is not privileged and not work product.1 Assuming this is an exception, the question then becomes what exactly is being excepted, and at least as importantly, how hard it will be for the prosecution to meet its presumably formidable burden.
Ordinarily, the attorney-client privilege applies only to confidential communications under Rule 503 of the Rules of Evidence, which would take the receipt of physical evidence out of its protective purview. But there is a “special rule” within the Rule literally called “Special Rule in a Criminal Case”2 that renders confidential “any other fact that came to the knowledge of the lawyer” by reason of the attorney-client relationship. Assuming that you can be said to be “concealing” the pen and meth at your office, the existence and location of the evidence are “facts” which came to you in the context of your representation. Your failure or refusal to disclose these facts would therefore appear to be privileged, and thus you should not be said to be committing the offense of concealing evidence.
But the Court of Criminal Appeals still requires the privilege to be “strictly construed,”3 which means it will be read against you and your client. With strict construction in mind, the special rule only applies to facts discovered by reason of the attorney-client relationship. But that relationship only arises when the client and lawyer have engaged in confidential communications for the purpose of rendering “professional legal services.” A prosecutor could easily argue that Greta simply used the attorney to stash her meth and conceal evidence, and thus her email and the items were outside a legitimate attorney-client relationship.
More straightforwardly, the prosecutor could cite the exception to the privilege. There is no privilege if the lawyer’s services were sought or obtained to help or enable anyone to commit a crime. You are in possession of contraband and you are helping Greta conceal evidence. Under this rationale, the privilege would arguably not apply and you can be prosecuted for concealing evidence (and for possession of the meth as well).
Before there was Section 37.09 of the Penal Code, the Court of Criminal Appeals decided the attorney could not use the privilege as a shield for criminal conduct in this memorable recorded conversation as reflected in the infamous case cited below:
Client: Hello, Jimmy, I went to the extremes.
Defense Attorney: What did you do?
Client: I just went to the extremes.
Defense Attorney: You got to tell me what you did before I can help.
Client: Well, I killed her.
Defense Attorney: Who did you kill—the driver?
Client: No, I killed her.
Defense Attorney: Did you get rid of the weapon?
Client: No, I still got the weapon.
Defense Attorney: Get rid of the weapon and sit tight and don’t talk to anyone, and I will fly down in the morning.
The Court decided the attorney-client privilege did not apply because it was “not within the realm of legitimate professional counsel and employment,” but rather advice “on how he can safely commit a crime.” Clark v. State, 261 S.W.2d 339 (Tex.Crim.App. 1953).
Section 37.09(b) also includes “work product” as a shield against prosecution. But it refers to the work product of the “parties.” When you received the meth and the pen, you were not a party. Once that indictment is filed, your client is a party (the defendant) and the State of Texas is a party, but the lawyers, state and defense, are not. Presumably, this reference in Section 37.09(b) is to you, the accused lawyer, the defendant in your prosecution for concealing evidence.
Work product is either absolutely protected “core” product (the lawyer’s own mental processes) or “other” product.4 This “other” product—i.e., documents and materials gathered in the course of the preparation of the defense—gets only qualified immunity. This state of affairs leaves the defense lawyer’s work product as either a sanctuary or a safari park. But under this pretrial scenario, this case falls outside either category of the lawyer’s work product immunity, leaving you no protection from disclosure.
The exception in 37.09 is not an impervious legal cocoon into which the defense lawyer can slip himself, confident that he is safe from prosecution. Even at this theoretical level, it appears on closer examination to be a professional coffin instead. Reading the exception most favorably to the hapless defense lawyer, it vanishes like a mirage when exposed to the real world.
The Search of Your Office and Your Subsequent Prosecutions
Assume the police execute a search warrant on your law office (Bud went to the police). The police find the meth and you get arrested for possession of it. A hard-working homicide detective, aware that you are defending Greta, assists in the search. He notices the pen on your desk and matches it to various photographs of it (the victim loved his pen).
You are forced to appear at Greta’s murder trial and, over your strenuous objection, testify about everything you know about that pen. The pen is introduced as evidence over equally vigorous objection. Greta, of course, is convicted, and yes, she feels betrayed: That supposedly protected “special” relationship is irrevocably over, if it can ever have existed in the first place.
But you were also charged for concealing the pen. The prosecution relies heavily on jurors’ belief that criminal defense lawyers will do anything for their clients, most especially hide evidence. And now, the prosecution argues:
Lawyers cling to privileges they only give themselves. As a prosecutor, I believe in rules that govern us as a civil society. Above all else, I care about the rules meant to find truth so that justice may be served.
He may have a bar card, but people, he is nothing more than an accomplice. A bar card is not a license to commit crimes. The fact that Greta—his beloved client—committed murder with the pen obviously meant nothing to him. It is a reasonable inference that the pen remained on his desk long enough for this lawyer to fully understand what it was. Perhaps he rolled it around in his fingers. Perhaps he simply laid the pen openly for his amusement and pleasure. It was a trophy.
You weren’t just concealing a murder weapon. You were using your power as a lawyer to help a killer escape justice. Maybe she will. But you won’t.
Don’t let this lawyer hide behind his privilege. Send a message to all criminal defense lawyers that you care more about truth and justice than technicalities. If you do, then maybe the next time a killer hides his knife or gun or bomb-making supplies with his lawyer, law enforcement can act far more quickly and we can all be safer, lessen crime and achieve justice—even to self-appointed members of the privileged class.
You are convicted and your sentence is partially probated. You appeal. How will you fare?
You may not fare well. Under Henderson v. State,5 the Court of Criminal Appeals has cast the privilege as pliable as a plastic mold. It bends according to the facts of the case. If the attorney-client privilege is said to be a shield against disclosure, it is a paper shield.
The Henderson Case
Cathy Lynn Henderson was the babysitter for an infant. When the parents returned, she and the baby were missing. Less than two weeks later, the FBI found Ms. Henderson in another state, but without the child. She eventually said that she accidentally killed the baby and buried the child in a wooded area near Waco.
Henderson then invoked her right to counsel. At this point, all law enforcement knew was that the dead infant was somewhere “near” Waco, a description of little help in locating the grave, or to be stated more precisely and legalistically, the site of crucial evidence to support a prosecution for capital murder.
Having invoked her Sixth Amendment right, her federal public defender entered the picture. The police testified he (the PD) revealed to them that his client had drawn a detailed map revealing the location of the child. The public defender denied ever making this disclosure. When asked about a map, he told them that “all materials” would be forwarded to Henderson’s Austin lawyer.
Unsurprisingly, the local police sought the map from the Austin attorney. When the lawyer refused, prosecutors obtained a grand jury subpoena duces tecum. The lawyer refused to appear. The local sheriff then obtained an arrest warrant for the lawyer and a search warrant for her car and office. They found no maps.
The attorney, meanwhile, was represented by a large swarm of other Austin lawyers. They very clearly asserted the attorney-client privilege. The prosecution, in turn, filed a motion to compel production of the map.
The matter was now squarely joined before the trial court. Was the map Henderson drew protected from disclosure under the attorney-client privilege, the oldest privilege in Anglo-American law? If so, what would a local judge do, facing a barrage of intense public attention and the desperation of grieving parents?
The trial court compelled Henderson’s attorney to turn over the map under the fiction that it was intended to be disclosed to law enforcement and “not made for the purpose of facilitating the rendition of professional legal services.” The police found the body and a jury sentenced Henderson to death.
The Court of Criminal Appeals, per (not yet Presiding) Judge Keller, affirmed the death sentence and removed the map’s protection from the attorney-client privilege.6 The State had argued that the privilege did not apply; that if it did, the exceptions applied; and if there were no exceptions, the exclusionary rule would not apply.
The Court agreed the privilege applied. It rejected the State’s argument that the illegally obtained map fell within any crime-fraud exception to the privilege. The Court also agreed that the exclusionary rule applied. Under the law at the time, then, the fruits of the map should have been suppressed and Henderson’s conviction reversed.
Instead, the Court decided to create a new balancing test against the privilege and held that “the privilege must yield” . . . “to the extent necessary to satisfy the policy interest in question,” such as to prevent a death or serious bodily injury. In such a case, the attorney “must disclose” the evidence to law enforcement. The Court praised its new law because it “gives effect to the privilege while taking into account strong policy interests in favor of disclosure. In many ways this reasoning is similar to cases in other states that require an attorney to release physical evidence in his possession to the authorities but prevent the government from disclosing to a trier of fact that the evidence came from the defendant’s attorney.” The similarity noted by the Court morphed just a few paragraphs later into Texas law.7
Where Henderson Leaves the Criminal Defense Lawyer (and Greta)
The Post-Henderson Conversation
Client: Hey, Darla, thanks for taking my call.
Defense Attorney: What’s up?
Client: I need some advice.
Defense Attorney: Sure.
Client: I kidnapped this kid from middle school.
Defense Attorney: Oh, no. That is very bad.
Client: Here’s the situation—
Defense Attorney: Stop. I need to warn you. Whatever you’re going to say, I have to go and tell the police.
Client: You’ve represented me before. I thought you were on my side. I need and want you to be my lawyer.
Defense Attorney: I am. That’s why I’m telling you to not tell me anything. It’s the only way I can guarantee my undivided loyalty to you as your lawyer.
Client: Well, I’m concerned about the kid because—
Defense Attorney: I’m sorry, you tell me, I tell the police.
Client: (Long Pause) This seems f****d up.
Defense Attorney: You’re telling me.
Implicit in the Court’s reasoning is that the defense attorney will feel no obligation to tell his client that if he gives him certain information, he—his own lawyer—will be transformed into the government’s most important informant. The Henderson judges assumed the defense lawyer would keep this secret so that he might gather the very information that could lead to his client’s execution. Were Henderson the law at the time the federal public defender met with his client, he would most certainly have told her not to draw a map and not to tell him where the child’s body was located.
The present rule spares the lawyer for his betrayal while employing his assistance to convict and punish, even win a verdict of death against, his own client. From the client’s point of view, this solution seems a bit tailor-made for members of the criminal justice system. How might Greta react when, as that pen is offered into evidence, the source of the evidence—her own lawyer—is scrupulously hidden from the jurors? So much for full disclosure, she might wryly observe. And so much for confidence in your own lawyer’s loyalty.
What might the lawyer herself think? Perhaps she reflects about how, as the Supreme Court has trumpeted, “a defense lawyer best serves the public, not acting on behalf of the state or in concert with it, but rather by advancing ‘the undivided interests of his client.’”8 Or maybe she laments ever having taken the case in the first place.
Six months later, in Swidler & Berlin v. United States,9 the Supreme Court of the United States considered whether the attorney-client privilege should be balanced against the sort of strong feelings the judges of the Court of Criminal Appeals experienced in Henderson. Specifically, the District of Columbia Court of Appeals invented a test to determine whether the privilege should yield to other interests after the client dies. The Supreme Court decided in favor of the privilege.
Unlike the Court of Criminal Appeals, the Supreme Court recognized that “the loss of evidence admittedly caused by the privilege is justified in part by the fact that without the privilege, the client may not have made such communications in the first place.” Most importantly, the Supreme Court rejected the balancing test created by the Court of Criminal Appeals:
[A] client may not know at the time he discloses information to his attorney whether it will later be relevant to a civil or a criminal matter, let alone whether it will be of substantial importance. Balancing ex post the importance of the information against client interests, even limited to criminal cases, introduces substantial uncertainty into the privilege’s application. For just that reason, we have rejected use of a balancing test in defining the contours of the privilege.10
The Texas defense lawyer remains in the crossfire of Henderson and Swidler & Berlin. Where the defense lawyer most needs clarity, the current state of the law leaves an intolerable level of uncertainty. Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct relies on the meaning of the privilege in the state and federal rules of evidence. Consequently, the lawyer’s license is just as jeopardized as the lawyer himself.
I lack full confidence that the lawyer can depend upon the courage of the courts. The attorney’s crisis will not occur in a case involving an invalid license or shoplifting. The controversy will arise in the notorious case. It will involve a crime enveloped by political considerations and an emotionality so strong it can influence judges to bend the privilege or “balance” it on a rigged scale. As the Henderson case demonstrates, the courts surrendered the privilege at the very moment it most needed vindication. We need to replace the paper protection with something more cast-iron.11
The Value of the Attorney-Client Privilege and Its Fulfillment
I have concluded that criminal defense lawyers have no choice but to offer to the State Bar and to the Legislature language that is robust and clear enough to fulfill the very important other interests the privilege evolved to undertake. In an era in which obtaining “truth,” i.e., factual material, is a virtue eclipsing all others, the value of contrary interests needs reminding.
The attorney-client privilege fosters an environment conducive to full disclosure by the client. The more the attorney learns of the case, the better he can fulfill his Sixth Amendment role.12 Unlike any other area of the law, honesty from the client is most fleeting in criminal cases. The shoplifter doesn’t want to talk about the reality of the camera. The guilty capital client doesn’t wag his tongue about the crime or about the usual horrors leading to it. The driver who sped assumes he exceeded the speed limit. These are the facts vital to the ultimate aspirations of truth and justice because while they seem incriminating, they may—under the law—be exculpatory.
Maybe the confessed shoplifter actually didn’t commit a crime, but he thought he had. Perhaps the execution-centered and fully guilty client is in fact not eligible for the death penalty. The driver was fast, but what did the instruments read? It is the defense lawyer under the benefit of the attorney-client privilege who can more reliably make those determinations.
The seasoned defense lawyer has experienced falsities from clients, but truth as well. Law must give us space. With the space that the privilege provides, we can separate the innocent far more quickly and justly than anyone else.
The law must enforce the privilege not as an accommodation in criminal cases, but as a special and emphatic necessity. Lawmakers and judges both must value the privilege because it fulfills the ultimate aspirations we have as a civil society.
The attorney-client privilege is more than just a vehicle for ensuring the competing interests of the criminal justice system. Like any privilege, it constitutes a private zone of individual autonomy which the government cannot reach. Privileges do more than serve narrow legal interests. They are zones of privacy and autonomy. Without them, there would be no counterweight for the individual’s rights when they collide against the government’s powers. They are more than rules of evidence; they are in practice vital to a liberal democracy.
With these sentiments in mind, I looked at the two competing approaches to the problem of the receipt of incriminating physical evidence. One approach is what I call the deliver-it-to-the-cops solution. The other is what I call the give-it-back rule. The first is favored by some states. The latter is the rule expressed by the ABA Criminal Justice Standard 4-4.6. What I’ve written is largely a sort of rearrangement of the ABA’s standard.
Lawyer Duties upon Receipt of Criminal Evidence
(a) A lawyer who receives a physical item under circumstances implicating a client in criminal conduct shall disclose the location of or shall deliver that item to law enforcement authorities, including prosecutors, only if:
(1) such is required by specific court order or required as an express duty under law or;
(2) the item received is plainly contraband or;
(3) in the lawyer’s professional judgment the lawyer cannot retain the item in a way that does not pose an unreasonable risk of physical harm to anyone.
(b) Unless required to disclose under subsection (a), the lawyer shall return the item to the source from whom the lawyer receives it, except as provided in paragraph (c).
(c) A lawyer may receive the item for a period of time during which the lawyer: (1) intends to return it to the owner; (2) reasonably fears that return of the item to the source will result in destruction of the item; (3) reasonably fears that return of the item to the source will result in physical harm to anyone; (4) intends to test, examine, inspect, or use the item in any way as part of the lawyer’s representation of the client; or (5) cannot return it to the source. If the lawyer retains the item, the lawyer shall do so in a manner that does not impede the lawful ability of law enforcement to obtain the item. The lawyer shall retain the item in the lawyer’s law office and, other than locations for testing, inspection or use, no other place except under (a)(3).
(d) After testing or examining physical evidence pursuant to paragraph (c)(4), defense counsel should return it to the person from whom it was obtained, unless there is reason to believe that the evidence might be destroyed or used to harm another.
Under this rule, the defense lawyer can either have Greta come get her pen, or keep it safely at the attorney’s law office. Either decision is ethically defensible. The lawyer’s choice would be heavily dependent on the peculiar facts and circumstances of the case.
The lawyer has to get the meth to law enforcement. The rule does not explain how to accomplish that task. It seems inadvisable to stroll into the police station and plop it down. One solution is for the lawyer to deliver the meth to another location, then have someone else alert the authorities, perhaps an anonymous tip. Greta may be unhappy, but you’ll have to explain that you are bound by the ethical code and keeping her meth is not an option.
In light of the current judicial hostility toward the attorney-client privilege, I also think we need to put back into the Code the language that had been there since 1856. It was repealed when the Court of Criminal Appeals was enabled to write the rules of evidence in 1986. Then the Court tried to wipe out the rule in 2008. In the meantime, the Court had decided Henderson, leaving the privilege subject to the unobstructed winds of judicial whim. Reenacting that language does not advance the concerns expressed herein. But it does remove the argument that the attorney-client privilege is an evidentiary toy that can be moved and removed as easily as it currently can be.
Art. 38.09. Attorney-Client Privilege. An attorney at law shall not disclose a communication made to him by his client during the existence of that relationship, nor disclose any other fact which comes to the knowledge of such attorney by reason of such relationship.
But perhaps we need an additional statute:
Art. (New). No subpoena, warrant or order may issue for items or documents in the office of an attorney in a criminal case pursuant to the attorney-client relationship unless (1) the attorney is given notice before the subpoena issues and (2) the State proves at a hearing by clear and convincing evidence that:
(a) the items or documents were obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;
(b) the attorney has an express duty under law to deliver the item or document to law enforcement;
(c) the item received is plainly contraband;
(d) the retention of the item or document is conducted in a manner that will impede the lawful ability of law enforcement to obtain the item; or
(e) the retention of the item or document is in violation of the rules regarding receipt of incriminating evidence.
This language is meant only as a draft that I hope instigates thoughtful discussion and vetting before TCDLA interfaces with lawmakers and/or the State Bar, if it decides to do so. I do not recommend that we wait for the next crisis to hit. In the meantime, maybe publication will help the defense lawyer thoughtfully wondering what to do with her own “Greta.”
If you have a “Greta experience” or anything similar, call both the Ethics Committee (Robert Pelton, chair), at 512-646-2734, and the Strike Force (Nicole DeBorde, at 713-536-6300, or Reagan Wynn, at 817-336-5600).
Notes
1. Section 2.02 of the Texas Penal Code
2. Eight years ago, the Court of Criminal Appeals sought to abolish the rule, led by Judge Cathy Cochran and law professor Steven Goode. Craig Jett, Tim Evans, and myself (and others) opposed the suggested abolition. Richard Anderson wrote a persuasive letter in opposition. After a spirited public debate on the blog Grits for Breakfast, we won retention of this provision.
3. Strong v. State, 773 S.W.2d 543 (Tex.Crim.App. 1989).
4. Pope v. State, 207 S.W.3d 352, 357–58 (Tex.Crim.App. 2006).
5. Henderson v. State, 962 S.W.2d 544, 556–558 (Tex.Crim.App. 1997).
6. I was the attorney on direct appeal.
7. Henderson, 962 S.W.2d at 556–558.
8. Polk County v. Dodson, 454 U.S. 312, 318–19 (1981)(quoting Ferri v. Ackerman, 444 U.S. 193, 204 (1979).
9. 524 U.S. 399 (1998).
10. Swidler & Berlin v. United States, 524 U.S. at 409. See Note 2.
11. It also does not inspire confidence that the Court of Criminal Appeals a decade later sought the abolition of the very “Special Rule” which was Henderson’s only and ultimately failed line of defense.
12. “As a practical matter, if the client knows that damaging information could more readily be obtained from the attorney following disclosure than from himself in the absence of disclosure, the client would be reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal advice.” Fisher v. United States, 425 U.S. 391, 403 (1976).
