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NCJ Number: 63202 Find in a Library
Title: LEGAL ETHICS AND THE DESTRUCTION OF EVIDENCE
Journal: YALE LAW JOURNAL  Volume:88  Issue:8  Dated:(JULY 1979)  Pages:1665-1688
Author(s): ANON
Corporate Author: Yale Law Journal
United States of America
Date Published: 1979
Page Count: 24
Sponsoring Agency: Yale Law Journal
New Haven, CT 06520
Format: Article
Language: English
Country: United States of America
Annotation: THE ARGUMENT THAT THE CODE OF PROFESSIONAL RESPONSIBILITY SHOULD BE AMENDED TO PROHIBIT ATTORNEYS FROM ADVISING CLIENTS TO DESTROY EVIDENCE RELEVANT TO PENDING OR PLANNED LEGAL ACTIONS IS PRESENTED.
Abstract: THE CODE OF PROFESSIONAL RESPONSIBILITY DOES NOT DIRECTLY PRECLUDE AN ATTORNEY FROM ADVISING HIS CLIENT TO DESTROY POSSIBLE EVIDENCE; RELEVANT PROVISIONS REFER ONLY TO SITUATIONS IN WHICH THE DESTRUCTION IS CLEARLY ILLEGAL. BECAUSE APPLICABLE FEDERAL AND STATE STATUTES DO NOT COVER EVERY SITUATION IN WHICH THE DESTRUCTION OF EVIDENCE ARISES, THE ATTORNEY'S ROLE IS NOT GOVERNED BY CURRENT ETHICAL STANDARDS. IN REQUIRING CERTAIN KINDS OF DISCLOSURE, SOME COURTS HAVE EMPHASIZED THE LAWYER'S DUTY OF CANDOR AS AN OFFICER OF THE COURT, BUT THE REQUIRED DISCLOSURE PRIMARILY CONCERNS SUCH MATTERS AS FRAUDULENT CONVEYANCES OF CLIENTS' ASSETS, LEGAL PROCEEDINGS ELSEWHERE, AND SPECIAL FEE ARRANGEMENTS. HOWEVER, NO FEDERAL STATUTE EXPLICITLY MAKES DESTRUCTION OF EVIDENCE A CRIME BEFORE MATERIALS HAVE BEEN SUBPOENAED. BEFORE ISSUANCE OF A SUBPOENA, DESTRUCTION OF EVIDENCE CONSTITUTES A CRIMINAL OFFENSE ONLY WHEN DOCUMENTS ARE RELEVANT TO A PENDING GRAND JURY OR CRIMINAL INVESTIGATION AND THE INTENT OF THE ONE WHO DESTROYS IS 'CORRUPT.' ROUGHLY HALF THE STATES HAVE ENACTED STATUTES PROSCRIBING THE DESTRUCTION OF EVIDENCE THAT HAVE A BROADER SCOPE THAN CURRENT FEDERAL LAW. THESE STATE PROVISIONS ARE GENERALLY SIMILAR TO THE RELEVANT PROVISION OF THE MODEL PENAL CODE. HOWEVER, SUCH STANDARDS, AS A RESULT OF INHERENT VAGUENESS, PERMIT THE LEGAL DESTRUCTION OF EVIDENCE IN MANY CASES. BECAUSE OF THESE INADEQUACIES, THE CODE SHOULD BE AMENDED TO COVER EVIDENCE DESTRUCTION. ATTORNEYS SHOULD NOT BE FREE TO CHANGE THE NATURE OF THE FACTS AVAILABLE TO FUTURE ADVERSARIES, WHICH IS THE EFFECT OF DESTROYING EVIDENCE, FOR THIS THREATENS BASIC ASSUMPTIONS ABOUT THE ADVERSARY SYSTEM. THE ATTORNEY-CLIENT PRIVILEGE SHOULD NOT PROTECT THE CONTENTS OF DOCUMENTS WHEN THE ATTORNEY ADVISED ON ASSISTED IN THEIR DESTRUCTION. IT IS SUGGESTED THAT SOME ENFORCEMENT MECHANISM IS NEEDED TO ENSURE COMPLIANCE WITH THE RULE. FOOTNOTES ARE INCLUDED IN THE ARTICLE. (LWM)
Index Term(s): Code of ethics; Evidence; Evidence preservation; Professional conduct and ethics; Professional misconduct
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http://www.ncjrs.gov/App/publications/abstract.aspx?ID=63202

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