An Unwelcome Discovery: Finding Pornography on the Family Computer!
Having a client discover pornography on the family computer poses more than just a sticky situation for an attorney - the issue raises several ethical and strategic problems, as well as criminal exposure.
As an attorney, the first consideration that must be addressed is whether the pornography is illegal or not. If the material is, or even might be, child pornography, it should be treated as illegal - better to err on the side of safety. If not, then there is no criminal exposure.
From a family law perspective, what is the relevance of a spouse or parent having pornography on their computer? A judge may find it relevant to know the type and quantity of such material, or whether the material was password protected or accessible to children, in determining whether a parent is suitable custodian of children. In any case, if pornographic material is to be used as evidence in a family law hearing, it is important to preserve a secure chain of custody over the material so that any evidence is not tampered with.
What to Consider if you Represent the Spouse who Discovered the Material:
If representing the discovering spouse of criminal pornographic material, an attorney does not have a duty to report such a discovery as such information was acquired within the attorney-client relationship and protected by confidentiality. However, an attorney in this position should counsel her client as to any possible criminal ramifications the client may face for having knowledge or possession of such contraband material.
Whatever the client decides to do, the attorney should never take copies of any illegal pornography or store the computer on behalf of the client. Doing so could obstruct justice and would put the attorney in the position of having illegal material in her own possession. The best course of action is for the authorities to handle the material and anything required for use in a future criminal or civil matter can be obtained by use of subpoena power.
What to Consider if you Represent the Spouse who Possessed the Material:
First and foremost, an attorney representing alleged possessor of illegal pornography should refer the client to a criminal defense attorney and pointedly remind the client of his 5th Amendment rights. The attorney should never take possession of the material or the computer on which it is stored.
If formal charges are brought, the defendant will eventually be allowed to review the evidence found on the computer with his attorney.