A lawyer who represents both civil and criminal clients is at the offices of a corporate client he is representing in a civil matter. While he is there, the lawyer gets permission from a VP of the company to use the VP’s computer (which belongs to the corporate client) to check the lawyer’s email. In using the computer, the lawyer inadvertently discovers that it contains pornographic pictures of sexual abuse of children. The VP is not the lawyer’s client, and the VP has no reason to believe that he is. The pornography is unrelated to the client’s business. What should the lawyer do?
Destroying the pornography might well be obstruction of justice. The Second Circuit has held that in enacting 18 USC §1519 regarding obstruction, “Congress rejected any requirement that the government prove a link between a defendant’s conduct and an imminent or pending official proceeding.” United States v. Gray, 642 F.3d 371, 377 (2d Cir., 2011).
But must the lawyer report the crime? A Massachusetts court held that the lawyer has an obligation to do so. Pane v. Goffs, 74 Mass. App. Ct. 1107 (2009). But why? The court did not cite a Mass. statute. 28 USC §4 criminalizes misprision of a felony, but misprision requires that the lawyer take "affirmative steps to conceal the crime of the principals." United States v. Johnson, 546 F.2d 1225 (5th Cir. 1977), citing 7th, 8th, and 9th Circuit opinions.
I’m inclined to say that the lawyer should inform his corporate client, explain the relevant law, and advise the client not to destroy the pornography. If the client authorizes the lawyer to tell the authorities, he should do so. Otherwise, the lawyer should take no further action.
I’m interested to know what others think.
Destroying the pornography might well be obstruction of justice. The Second Circuit has held that in enacting 18 USC §1519 regarding obstruction, “Congress rejected any requirement that the government prove a link between a defendant’s conduct and an imminent or pending official proceeding.” United States v. Gray, 642 F.3d 371, 377 (2d Cir., 2011).
But must the lawyer report the crime? A Massachusetts court held that the lawyer has an obligation to do so. Pane v. Goffs, 74 Mass. App. Ct. 1107 (2009). But why? The court did not cite a Mass. statute. 28 USC §4 criminalizes misprision of a felony, but misprision requires that the lawyer take "affirmative steps to conceal the crime of the principals." United States v. Johnson, 546 F.2d 1225 (5th Cir. 1977), citing 7th, 8th, and 9th Circuit opinions.
I’m inclined to say that the lawyer should inform his corporate client, explain the relevant law, and advise the client not to destroy the pornography. If the client authorizes the lawyer to tell the authorities, he should do so. Otherwise, the lawyer should take no further action.
I’m interested to know what others think.