Not knowing much about child pornography law except what I have read in newspapers 
about arrests, I took a quick look at the statutes. It is unclear to me exactly whether 
'possession' of images, without knowingly receiving or distributing, is illegal. There is an 
affirmative defense of possessing 'less than three images of child pornography' if you 
promptly report this to law enforcement (and provided them access) or if you promptly took 
reasonable steps to destroy the images' without retaining or allowing anyone else to access 
the images.

It seems if you have knowingly received several images of child porn, this is a punishable 
crime. Retention on a computer, without distribution, of the images could be evidence of 
that crime, but not conclusive. If an attorney engaged for other purposes finds such images 
on a client's computer, that could be evidence of an ongoing criminal behavior. The number 
of images might suggest something about the client's knowledge or intent. I think the 
attorney here was between a rock and a hard place. Not engaged to defend against child 
porn, finding enough images to indicate ongoing criminal behavior (as much as possession 
can prove that), should the attorney just look the other way and ignore it? If so, wouldn't the 
attorney be complicit in any ongoing crime by the client? Under the facts as presented, it 
does not seem that A/C privilege is involved.

Assume I am hired as an attorney to do civil work for a client and given access to the client's 
computer. I run across many photos of people being tortured and killed. These killings are 
unsolved murders about which there has been much publicity in the papers. Thus, Identifying 
the victims in the pictures is easy for me to do.  What am I to do? Claim privilege? Ignore the 
images? Destroy the images at the urging of my superiors in the law firm? Report the 
images to law enforcement so that they might investigate the client's relationship to the 
images? 
I would report, no matter how much business this client was throwing our way. I don't think 
the answer, at least for me, would be any different for child porn.
James Highsmith


----- Original Message -----
From: Kenneth Schneyer <[log in to unmask]>
Date: Sunday, May 3, 2009 8:01 am
Subject: Re: maybe you can use in class
To: [log in to unmask]

> Interesting.  Refusing to destroy the evidence was obviously correct,
> but the FBI notification isn't quite as clear.  On the one hand, if 
> yourclient told you that he was planning to make or download 
> illegal child
> pornography and you were unable to dissuade him, clearly you would 
> havean obligation to inform the authorities.  On the other hand, if 
> theclient came to you because he was accused of illegal child 
> pornographyand wanted to retain you for his defense, then 
> information you
> discovered about his past activities related to the crime would be
> privileged and it would violate legal ethics to reveal it.  So where
> does the line fall?
> 
> 
> 
> Ken
> 
> 
> 
> -----Original Message-----
> From: Academy of Legal Studies in Business (ALSB) Talk
> [mailto:[log in to unmask]] On Behalf Of Marsha Hass
> Sent: Sunday, May 03, 2009 9:32 AM
> To: [log in to unmask]
> Subject: maybe you can use in class
> 
> 
> 
> 
> Taking the Confidential Information Argument Too Far
> 
> 
> Blog
> <http://lawprofessors.typepad.com/.a/6a00d8341bfae553ef011570689a26970b-
> pi> The Legal Ethics Forum blog
> <http://www.legalethicsforum.com/blog/2009/04/big-law-associates-
> wrongful-termination-suit-can-proceed.html>  has a post on a recent
> Massachusetts appeals court decision that reversed a trial court's
> dismissal of an unlawful termination claim.  The plaintiff is an
> attorney who discovered child pornography on the computer of one of 
> hisfirm's important clients.  He notified his firm, which 
> instructed him to
> hire a specialist to erase the pornography from the computer.  He
> refused, stating that they couldn't destroy evidence of a crime and he
> ultimately notified the FBI.  He was--surprise--fired for his trouble.
> The appellate court held, contrary to the trial court, that revealing
> the child pornography didn't threaten any protected privileged or
> confidential information.  Hard to believe that it took a reversed 
> trialdecision to get to that point.
> 
> Hat Tip:  Alex Long
> 
> -JH
> 
> May 3, 2009 in Labor and Employment News
> <http://lawprofessors.typepad.com/laborprof_blog/labor_and_employment_ne
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