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Transfer of Evidence From Client to Attorney May Be Unobtainable By Prosecutors If Done So For Legal Advice

The Massachusetts Supreme Judicial Court considered whether evidence or documents that were provided to an attorney by the client are obtainable by prosecutors from the attorney via subpoena.  The question, the court ruled, depends on whether or not the the evidence was provided to the attorney for purposes of legal assistance.

This case involved circumstances where the defendant was the subject of a grand jury investigation who, in the course of seeking legal advice, had given his phone to his lawyer.  The government, on behalf of the grand jury, obtained an order from a superior court judge ordering the attorney to produce the phone so that the grand jury could examine its contents.  The attorney refused to honor the superior court judge’s ordering him to do so and the appeal reached the Supreme Judicial Court.

One of the most fundamental constitutional rights we enjoy is the protection of legal counsel pursuant to the 5th Amendment of the United States Constitution and Article 1 of the Massachusetts Declaration of Rights.  The Supreme Judicial Court upheld that, in this case, the attorney-client privilege protects the defendant from ordering his lawyer to produce evidence against him.

The SJC explained that, if the court were to order the attorney to produce the cell phone, it would effectively be ordering the defendant to compel him to produce evidence against himself, in other words, would be infringing the client’s privilege against self-incrimination.  The SJC specifically explained that “turning over evidence in response to a subpoena [may constitute an] ‘implicit…statement about its existence, location and control’, and [t]he implied statement would also function as an authentication.”

The attorney-client privilege also extends to protect evidence from protection from the client’s attorney in circumstances where the client transferred the evidence to his attorney in order to obtain legal assistance.  In these circumstances, the material/evidence would not be obtainable, even by subpoena, pursuant to the protections of the attorney-client privilege.  The rationale for this rule has long deep roots, as the attorney-client privilege serves to protect the open communication between the client and the attorneys.  It ensures that clients would not need to sacrifice their constitutional rights that evidence provided to the attorney would be subject to compelled production.

The Massachusetts Supreme Judicial Court appears to leave open, however, the question of whether evidence provided to the attorney, if not provided in the course of seeking legal advice, is obtainable by the government.  In other words, it appears that if a client provides the attorney evidence, not for legal advice, but for the purpose of hiding evidence from the prosecution, then in these circumstances the attorney may lawfully be compelled to produce it and this would not be a violation of the protections of the attorney-client privilege.

Boston Criminal Lawyer Lefteris K. Travayiakis has extensive experience in representing persons for a wide variety of Massachusetts crimes, at all stages of criminal proceedings – from pre-arrest to post-conviction, including Criminal Appeals.  Submit Your Case Request to Attorney Lefteris K. Travayiakis or call 617-325-9500 24/7 to schedule a Free Consultation