‘What Do I Do with the Porn on My Computer?’: How a Lawyer Should Counsel Clients about Physical Evidence

Abstract

This Article critically analyzes the legal and ethical limits of advice a lawyer may give clients about evidence of crimes, and provides examples of that advice in a number of situations involving clients with questions about what they should do with real and electronic evidence. When criminal charges have not been brought and are not expected, how much latitude does a lawyer have in giving advice to a client? When may a lawyer counsel a client to destroy contraband or other evidence of a crime? When a lawyer may not counsel destruction, is a lawyer legally and ethically permitted to discuss the law and an assessment of the risks and possible legal consequences of destroying the contraband or other evidence of crimes? This Article also fills the void in the legal ethics and criminal law literature on how to be both an ethical and an effective lawyer when a client seeks straightforward advice about handling contraband or other evidence of possible crimes.