These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
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  Topic: 26 - Fruits and Instrumentalities of Crimes
LEO NumTopicsSummaryDate
0278

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26-Fruits and Instrumentalities of Crimes

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A client's wife stole a document from the client's employer to use in a lawsuit. As long as the client's lawyer was not involved in the theft, the lawyer may continue to represent the client and use the document. [LEO 1702 would require the lawyer to return the stolen document.]1/29/1976
0386

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26-Fruits and Instrumentalities of Crimes

31-Protecting and Disclosing Confidences and Secrets

A lawyer is not obligated to disclose the location of a weapon the lawyer discovered during an investigation, as long as the lawyer did not remove or conceal the weapon. 8/29/1980
1076

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26-Fruits and Instrumentalities of Crimes

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

80-Communicating with an Adversary's Expert

A lawyer may contact an adversary's expert witness, although "courtesy" would suggest that the lawyer advise the adversary's counsel. The Bar also indicated that a lawyer receiving "selected items" from an opponent's file from "some unknown third party" was not obligated to return the materials and could read and use them for the client's benefit (the Bar noted that "out of professional courtesy you should inform the opposing counsel that you have received these materials.") [LEO 1702 would require the lawyer to return the materials without reading them.]5/17/1988
0404

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26-Fruits and Instrumentalities of Crimes

31-Protecting and Disclosing Confidences and Secrets

A lawyer may not reveal information about where a client hid a weapon. 2/27/1981
0953

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26-Fruits and Instrumentalities of Crimes

A lawyer must turn over a weapon received from a client because it is a "fruit or instrumentality" of a crime. 8/21/1987
0551

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26-Fruits and Instrumentalities of Crimes

A lawyer must turn over documents that are "fruits or instrumentalities" of a crime. 11/23/1983
0709

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26-Fruits and Instrumentalities of Crimes

A lawyer must turn over documents that constitute the "fruits or instrumentalities" of a crime even if the lawyer's client is not the person charged or under investigation (in this case, the document was an insurance remittance voucher relevant to a police investigation). 7/11/1985
1141

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26-Fruits and Instrumentalities of Crimes

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

A lawyer representing a widow in a medical malpractice/wrongful death action may use files taken by the widow from the treating physician's office. The files are not "fruits of a crime" but the lawyer should advise the widow to return the original of the file. The lawyer could keep and use a copy of it. [This LEO was overruled by LEO 1702.]10/17/1988
1202

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26-Fruits and Instrumentalities of Crimes

48-Criminal Defense Lawyers

A lawyer representing alleged drug dealers discovers cash that the clients claim is unrelated to their criminal activity. If the lawyer is "convinced that this recently discovered money is not a fruit of a crime," the lawyer has no duty to reveal it.2/22/1989
1324

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26-Fruits and Instrumentalities of Crimes

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

Even if it is not illegal, a lawyer cannot tape record conversations without the other party's consent, or assist the client in doing so. A lawyer may use such a recording made by the client before the client retained the lawyer, and must keep the client's activity confidential [overruling LEO 1217.] [Effectively overruled in Virginia LEO 1802]2/27/1990
1049

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26-Fruits and Instrumentalities of Crimes

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

If a lawyer has a legal duty to turn over the personal effects of a client's step-daughter who has charged the client with rape, then the lawyer would violate an ethical duty by failing to do so. 3/2/1988
ABA-463

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26-Fruits and Instrumentalities of Crimes

40-Trust Accounts

The Model Rules "do not mandate that a lawyer perform a 'gate-keeper' role" to "combat money laundering and terrorist financing." The ABA's August 2010 Voluntary Good Practices Guidance for Lawyers to Detect and Combat Money Laundering and Terrorist Financing takes the proper "risk-based approach" rather than a "rules-based" approach. Lawyers following those guidelines can comply with the Model Rules by avoiding improperly assisting money laundering or terrorist financing. Among other things, lawyers may terminate representations under Rule 1.16 if the lawyer "reasonably believes" clients are engaging in criminal or fraudulent conduct, even if the lawyer does not "know for certain" that clients are engaging in illegal conduct5/23/2013

Copyright 2000, Thomas E. Spahn