QUESTION: Attorney received in the mail a check for payment of fees and expenses related to defending Client against pending drug-related criminal charges. Included in the envelope in a small plastic bag was what appears to be an illegal substance with a note reading “thank you.” What are Attorney’s ethics obligations?

ANSWER: Attorney should exercise caution in transferring, disposing, or retaining what Attorney may reasonably believe is an illegal substance. Rule 4-3.4(a) prohibits unlawfully obstructing another party’s access to evidence or unlawfully altering, destroying, or concealing material with potential evidentiary value. If concealing or destroying the substance would be unlawful, Attorney may not do so. See Rule 4-3.4, Comment [2]. If applicable law permits Attorney to have temporary possession of evidence of a crime for the purpose of conducting a limited examination that will not alter or destroy the substance, Attorney may do so. Rule 4-3.4, Comment [2]. Attorney must comply with applicable law regarding the knowing possession or transfer of an illegal substance. See Rule 4-8.4(b). Whether applicable law permits Attorney to return the substance to Client is a question of law outside the scope of the Rules of Professional Conduct. Attorney may not counsel Client to engage in, or assist Client, in conduct Attorney knows is criminal, nor may Attorney suggest to Client how the conduct might be concealed. Rule 4-1.2(f) and Comment [9]. Applicable law may require Attorney to turn the evidence over to police or other prosecuting authority. See Rule 4-3.4, Comment [2]. Whether the law so requires is a question of law outside the scope of the Rules of Professional Conduct. If so, Attorney must do so in a way that limits the disclosure of Client’s identity and other information related to the representation to what Attorney reasonably believes necessary to comply with other law. Rule 4-1.6(b)(4). Attorney must keep Client reasonably informed about the representation, including Attorney’s professional and legal obligations regarding the substance, and consult with Client about the potential impact on the interests of Client. Rules 4-1.2(g) and 4-1.4.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

To request an Informal Opinion, please visit: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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