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The attorney-client privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
After committing an armed robbery, Charles Richard Cook put stolen money and a shotgun into a bank safety deposit box. Realizing that the evidence might be discovered and used at Cook’s trial, respondent Richard R. Ryder, Cook’s counsel, took possession of the money and the gun and put them into his own safety deposit box. The items were found by FBI agents after they had obtained a search warrant. Respondent was charged with violating the Canons of Professional Ethics of the Virginia State Bar. Respondent averred that his conduct was an exercise of the attorney-client privilege.
The court rejected the argument that respondent’s conduct was no more than the exercise of the attorney-client privilege. According to the court, regardless of Cook's status, the respondent’s conduct was not encompassed by the attorney-client privilege, as it was the respondent, not his client, who took the initiative in transferring the incriminating possession of the stolen money and the shotgun from Cook. Respondent’s conduct went far beyond the receipt and retention. Moreover, the court held that the respondent violated the Canons of Professional Ethics because the Canons required attorneys to observe the law, and did not permit attorneys to violate the law for the benefit of their clients. Because of mitigating circumstances, respondent was suspended from practice for eighteen months rather than disbarred.