Taking Possession of Photographs Portraying Minor Committing Sexual Acts
Adopted: January 21, 2022
Opinion rules that a lawyer may not take possession of photographs portraying a minor engaged in sexual activity.
Inquiry #1:
Lawyer represents Mother in a pending child custody matter. During the consultation, Mother informed Lawyer that she recently discovered an illicit photograph of her minor child on the child’s cell phone. The photograph depicts the minor child engaging in sexual activity. Mother believes the photograph was taken while the minor child was living with Mother’s ex-husband and opposing party, Father. Mother believes the photograph is relevant to the custody matter in that it demonstrates Father’s lack of proper supervision of minor child and wants Lawyer to introduce the photograph into evidence at the next custody hearing. Mother presents the photograph to Lawyer, who confirms that the photograph contains a visual representation of a minor child engaging in sexual activity. Lawyer believes the photograph is relevant to the court’s determination of the best interests of the child.
May Lawyer take possession of the photograph for the purpose of introducing it as evidence in the upcoming custody hearing?
Opinion #1:
No. The Ethics Committee previously opined that a lawyer may not take possession of a client’s contraband if possession is itself a crime. 2007 FEO 2. Furthermore, a lawyer shall not counsel or assist a client to engage in conduct that the lawyer knows is criminal. Rule 1.2(d).
The possession of child pornography is a crime. North Carolina state law provides that a person commits the offense of third-degree sexual exploitation of a minor if, knowing the character or content of the material, he possesses material that contains a visual representation of a minor engaging in sexual activity. N.C. Gen. Stat. § 14-190.17A(a). Furthermore, North Carolina law defines second degree sexual exploitation of a minor if the person, knowing the content of the material, duplicates or distributes material that contains a visual representation of a minor engaged in sexual activity. N.C. Gen. Stat. § 14-190.17(a). There is no legal exception allowing a lawyer to possess such material if the possession is in furtherance of the representation of a client. Additionally, federal law prohibits the production, distribution, reception, and possession of an image of child pornography using or affecting any means or facility of interstate or foreign commerce. See 18 U.S.C. § 2251; 18 U.S.C. § 2252; and 18 U.S.C. § 2252A.
Both North Carolina and federal law clearly establish that it is unlawful for Lawyer to take possession of the photograph. Although Lawyer’s intent in taking possession of the photograph is for the purpose of representing a client and not for nefarious purposes, the law provides an absolute prohibition against possessing the photograph that the Rules of Professional Conduct cannot overrule.
Additionally, Lawyer must review the law to determine if he and Mother/client have a legal duty to report the existence of the photograph to either law enforcement or the Department of Social Services. The North Carolina statutes Lawyer should review include, but are not limited to, N.C. Gen. Stat. § 14-318.6 (report sexual offense of a minor to law enforcement) and N.C. Gen. Stat. § 7B-301 (report abuse, neglect, and dependency to the Department of Social Services).
Inquiry #2:
If Lawyer is permitted to take possession of the photograph, what safeguards should Lawyer take to protects the rights of the minor child?
Opinion #2:
Lawyer is not permitted to take possession of the photograph because it is prohibited by law. See Opinion #1. Nevertheless, Lawyer does not represent the child and therefore owes no duty to protect her legal interest. Lawyer, however, may have a duty to report the existence of the photograph to law enforcement and/or the Department of Social Services (DSS). See Opinion #1.
Inquiry #3:
Same scenario as Inquiry #1, except that, without prior notice to Lawyer, Client sends to Lawyer by email photographs of Client’s minor child engaging in sexual activity. What are Lawyer’s duties regarding the photographs?
Opinion #3
Because a photograph portraying a minor engaged in sexual activity is contraband and it is unlawful to possess contraband, Lawyer cannot possess the photographs. Upon discovering the photographs/contraband in Lawyer’s email inbox, Lawyer must promptly review the law on the duty to report to law enforcement and DSS. See Opinion #1. Furthermore, if there is a law requiring Lawyer to disclose the location of the contraband to the authorities, Lawyer must do so after notifying the client and explaining the legal consequences to the client. 2007 FEO 2.