Legal Ethics Opinion 1484

Attorney's Possession of Letters Incriminating Opposing Party

You have presented a hypothetical situation in which an attorney
was retained by Mr. A in a divorce case, A v. A, in which Mr. A
has custody of his four children, and in which he was seeking
child support from Mrs. A. The case, A v. A, is still pending.

You indicate that Mrs. A is having an affair with Mr. B.  You
also indicate that Mrs. B, who was then still legally married to
Mr. B, provided letters to the attorney which Mrs. B felt would
benefit Mr. A's case.  The letters indicate that Mr. B had a
lengthy physical relationship with the 12-year-old daughter of
the woman with whom he was living before he married Mrs. B.  You
indicate that the letters provided are correspondence from Mr. B
to the 12-year-old and from the 12-year-old to Mr. B. You further
indicate that the letters are sexually explicit and that they
contain hand-drawn pictures, names and dates.  You state that in
open court in A v. A, Mrs. B attempted to tender the letters to
the judge.  However, the judge refused to accept the
correspondence, since the present orders in A v. A preclude Mr. B
from having contact with Mr. A's children. 

Subsequently, Mrs. B reached a settlement with Mr. B in their
divorce case.  One provision of the settlement was that Mrs. B
would return the originals and all copies of the letters to Mr.
B.  Mrs. B has requested that the attorney return the letters to
her immediately, however Mrs. B has since agreed to let the
attorney copy the letters, which are in the possession of the
attorney.  The originals have been returned to Mrs. B, pending
this opinion.

Further, you indicate that Mrs. A and Mr. B recently had a son
together, although Mrs. A is still married to Mr. A.  Because Mr.
B. has had an illegal relationship with a minor child, Mr. A is
adamant that copies of the letters remain in his possession to
ensure that Mr. B is never permitted to be near his children.

You have asked the committee to opine whether, under the facts of
tttorney has a duty to disclose the nature of the letters to law
enforcement officials; (2) whether the attorney must return
copies of the letters to Mrs. B; and (3) whether the attorney may
instead simply keep the copies of the letters and not pursue any
further course of action.
As to your first question regarding whether or not the attorney
has a duty to reveal the letters to law enforcement officials,
the committee opines that the inquiry raises a legal question
which is beyond the purview of the committee.  The committee
cautions, however, that it is not opining as to any legal
obligation which may arise requiring the attorney to report any
suspected child abuse involved in the circumstances described.

As to your subsequent questions dealing with whether the attorney
must return the copies of the letters to Mrs. B, the committee
believes that the question of ownership of the copies raises a
legal question which is similarly beyond the committee's purview. 
 Assuming (a) that the originals have been returned to Mrs. B,
(b) that the copies are not legally determined to be her
property, and (c) that, upon receipt of the originals, no
conditions were placed on any photocopying, the committee is of
the opinion that there is no ethical requirement that the
attorney return the copies to Mrs. B.  

Committee Opinion
December 14, 1992