If a client gives his California lawyer stolen property, does the attorney client privilege shield him from getting prosecuted? This straight forward question, of course, has many answers, depending on the circumstances.
In general, a lawyer cannot knowingly take possession of the “fruits” of a crime. In other words, a lawyer cannot take from a client stolen property, fake identification cards, child pornography or like items. The lawyer can be prosecuted for having these items in his possession just as much as the client. In addition, the attorney-client privilege may not shield the client from disclosure by the lawyer of the source of such items.
Unfortunately, there isn’t a clear test for when the items given to a lawyer are protected from disclosure to law enforcement. However, clearly the lawyer cannot conceal the physical evidence of a crime from law enforcement. A lawyer would be ill advised to take possession of a bloody knife, gun, or bloody shirt from a client since those items cannot only incriminate his own client but once in the lawyer’s hands, the lawyer can become criminally responsible. Once the lawyer does take such items if he doesn’t turn them over to law enforcement the lawyer could face charges of obstruction of justice, evidence tampering, conspiracy among other violations of law.
The basic rule is really one of common sense. A lawyer should not take physical possession of any potential piece of evidence in a criminal case whether it incriminates his client or exculpates him. If it clears the client of wrongdoing, the evidence should go directly to law enforcement so that no one can argue that the lawyer manufactured the evidence. If it incriminates his client the lawyer should not take possession of it so that the lawyer doesn’t face the potential of being a witness against his own client.