On SSRN at http://ssrn.com/abstract=1816448 is an article imminently forthcoming from Stanford (volume 63). It raises issues I've been thinking about for, well a long time, but which finally began to take focus two years ago after I went to visit Leonard Garment, at one time a partner of and then lawyer for Richard Nixon. Here's a description:
A criminal defense lawyer may need to read a document, test a weapon, or analyze a substance in order to advise a client. Or there may be no such need but a client may show up at a law office with an illegal weapon, contraband, or stolenproperty. In either event, what should a lawyer do with the item following anyevaluation? What should she do if her client reveals where a weapon, contraband,or stolen property is hidden? Some cases say that a lawyer who receives orretrieves an item of real evidence must give it to the authorities after examiningit. But because the item may implicate the client in a crime, the client may insteadwithhold it or the lawyer may refuse to accept it, even if the lawyer needs to evaluate it. Or a lawyer may choose not to retrieve a hidden item if she must then deliverit to the authorities. Other cases say that after evaluation, a lawyer may returnan item to the source if possible. But is that the right rule when the item isstolen property, a dangerous weapon, or drugs? And what if return is not possible?This Article argues that the holdings of these cases, and secondary authoritiesthat agree with them, are wrong. They impede the need for informed legaladvice. They frustrate return of stolen property. And where the item is a weaponor drugs, they endanger public safety. This Article proposes solutions that avoidthese results while protecting the legal rights of clients and the interests of law enforcement and the public.