Washington Lawyer - November/December 2019 - 44

ASK THE ETHICS EXPERTS

AN ETHICS MASH

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By Saul Jay Singer

Q

Dear Ethics Guru:
I was working at my
office, late one night,
when my eyes beheld
an eerie sight,
as my client burst in,
and with maniacal eyes,
he slammed something
on my desk, and to my
surprise:

It was a gun! (and it was fully loaded!)
He had a gun! (from which grey smoke floated!)
It was a gun! (He said, "I just used it to kill . . .")
He had a gun! (". . . now represent me, with your
typical skill.")
The scene was shocking, and a bit grotesque,
truly bizarre, and Kafkaesque.
But the question for me, Bob Pickett, Esq.,
was what to do with the gun on my desk?
Do I give my client all benefit of doubt,
return his weapon, then throw him out?
Or do I stow it away in my office vault,
or report to the cops that my client's at fault?

A

Dear Mr. Pickett:

Unfortunately, none of the
options you suggest are
ethically permissible.

The gun is evidence of a
crime. As such, you may not
hold on to it or conceal it from the authorities,
as that not only would constitute criminal
tampering,1 but also violate D.C. Rules 3.4(a)
(Fairness to Opposing Party and Counsel)2 and
8.4(d) (Misconduct). 3
Returning the weapon to your client would be
no different because it is certainly foreseeable, if
not certain, that he will dispose of the evidence
of his crime. Making any disclosure to the police
under these circumstances would be a serious
breach of your duty to maintain and protect
client confidences and secrets pursuant to Rule
1.6 (Confidentiality of Information) or Rule 1.18
(Duties to Prospective Client).
Fortunately for D.C. Bar members, the Office of
Disciplinary Counsel has instituted a procedure
for accepting such evidence. Pursuant to
Comment [5] to Rule 3.4:
Because of the duty of confidentiality under
Rule 1.6, the lawyer is generally forbidden to
volunteer information about physical
evidence received from a client without the
client's informed consent. In some cases, the
Office of Disciplinary Counsel will accept
physical evidence from the lawyer and then

turn it over to the appropriate persons; in
those cases this procedure is usually the
best means of delivering evidence to the
proper authorities without disclosing the
client's confidences.

However, do not attempt to deliver a loaded
gun to the Office of Disciplinary Counsel. Call in
advance at 202-638-1501 to discuss appropriate
procedures for the transfer of client contraband,
including weapons.
D.C. Bar legal ethics counsel Saul Jay Singer, Hope
C. Todd, and Erika Stillabower are available for
inquiries on the Legal Ethics Helpline at 202-7374700, ext. 1010, or at ethics@dcbar.org.
*With apologies to Bobby Pickett and his 1962
smash hit "Monster Mash."
NOTES
1 See D.C. Law § 22-723 (2019): "(a) A person
commits the offense of tampering with physical
evidence if . . . that person . . . conceals or removes
a record, document, or other object, with intent
to impair . . . its availability for use in the official
proceeding."
2 "A lawyer shall not: (a) Obstruct another party's
access to evidence, or alter, destroy, or conceal
evidence, or counsel or assist another person to
do so. . . . "
3 "It is misconduct for a lawyer to . . . Engage
in conduct that seriously interferes with the
administration of justice)."

DISCIPLINARY SUMMARIES
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Disciplinary Actions Taken by the
District of Columbia Court of Appeals

basis based upon discipline imposed in
Maryland.

Original Matters

In re Lawrence J. Song. Bar No. 266353. August
12, 2019. Song was suspended on an interim
basis based upon discipline imposed in
California.

In re Monique D. Pressley. Bar No. 464432.
August 22, 2019. The D.C. Court of Appeals
indefinitely suspended Pressley based on
disability.
Interim Suspensions Issued by the District
of Columbia Court of Appeals
In re Stuart R. Blatt. Bar No. 944405. August 2,
2019. Blatt was suspended on an interim

Informal Admonitions Issued by the Office
of Disciplinary Counsel
In re Margaret A. Anthony. Bar No. 366642.
August 7, 2019. Bar Counsel issued Anthony
an informal admonition for failing to

maintain complete financial records of
entrusted funds in her possession. Rule
1.15(a).
Disciplinary Actions Taken by the Board
on Professional Responsibility
Original Matters
In re Wesley L. Clarke. Bar No. 474594.
August 27, 2019. The Board on Professional
Responsibility recommended that the
D.C. Court of Appeals disbar Clarke by
consent.

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44 WASHINGTON LAWYER

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NOVEMBER/DECEMBER 2019
Washington Lawyer - November/December 2019

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