Attorneys or their agents sometimes inadvertently come into possession of child pornography (hereinafter “contraband”) outside law enforcement settings.^[1] Although the subject has received little attention in the literature, I have witnessed at least three occurrences during my tenure as a digital forensics examiner and attorney, and it has been my impression that attorneys are unprepared for how to respond when this happens. I distinguish between attorneys’ unwitting acquisition of contraband and attorneys’ willful or reckless acquisition: the former triggers an affirmative duty of dispossession; the latter might be unlawful and subject the attorney or the attorney’s agent to a risk of criminal prosecution.

Willful or Reckless Production or Acquisition

The following two examples are of lawyers’ willful or reckless acquisition of contraband, with very different outcomes that are instructive.

Example One. The first example is an attorney who practiced in Ohio. The attorney established himself as a defense expert in the subject matter of contraband and championed the novel theory that “it is now impossible for any individual to know from a mere viewing of digital images on a computer whether or not those images portray actual children.”^[2] In support of his thesis, the attorney testified in April 2004 as an expert witness on behalf of a defendant charged with actual or attempted possession of contraband.^[3] He presented “before” photographs of children that he had obtained as stock images, followed by photographs that he altered (“morphed”) to depict the same children engaging in sexually explicit conduct with adults. The attorney-expert’s defense theory was that if he could fabricate contraband so easily, then there should be reasonable doubt that the alleged contraband that the defendant was charged with possessing might also have been fabricated.

At the conclusion of that hearing, the prosecution asserted that the attorney-expert’s “after” exhibits were contraband. The judge pointed out the exhibits were prepared “at court order” but instructed the attorney-expert to delete them. Instead, the attorney-expert called the U.S. Attorney’s office in his hometown, Cleveland, for an opinion as to whether these exhibits were contraband. He did not receive a return call and thereafter shipped his computer from Oklahoma to Ohio, where he continued to use the exhibits in testimony in Ohio cases.^[4]

The following month, the FBI began investigating the attorney-expert’s conduct related to the contraband images he had fabricated. The FBI obtained a search warrant for his home and seized devices containing electronic files. The U.S. Attorney’s Office asserted that the attorney-expert’s prepared exhibits were contraband under 18 U.S.C. § 2256(8)(C), which defines as child pornography any image that is created, adapted, or modified to make it appear that an identifiable minor is engaging in sexually explicit conduct. To avoid prosecution, the attorney-expert executed a pretrial diversion agreement in which he admitted he violated federal law – 18 U.S.C. § 2252A(a)(5)(B) – by morphing the images of identifiable children into contraband.

The problems for the attorney-expert did not end there. After federal prosecutors had identified two children in the stock photos and contraband and informed the children’s parents, the parents sued the attorney-expert under 18 U.S.C. § 2255 (the civil-remedy provision of the federal child pornography statute), which provides statutory minimum damages of $150,000 to victims of child pornographers. After an appeal to and remand from the U.S. Court of Appeals for the Sixth Circuit, judgment was entered against the attorney-expert for $300,000.^[5] He was also ordered to pay the plaintiffs $43,214.11 for their attorney fees.^[6]

Example Two. The second example is a South Dakota-licensed attorney. He was indicted on one count of possession and two counts of distribution of child contraband in connection with visiting websites or using file-sharing software that a client had allegedly visited or used so that he could understand what the client was doing. He asserted that he was a “criminal defense attorney who specializes in representing persons accused of pedophilia and other sex crimes against children.”

In his motion to dismiss, the attorney argued that, in the course of his law practice, some of his clients sought advice about whether particular websites contained material that constituted child pornography, and that to properly advise those clients, he would access the website on his office computer and “analyze the website’s contents and render an opinion about whether the particular website contained pornography.” He argued that he was allowed under South Dakota law to access and view child pornography in his capacity as a criminal defense attorney representing persons who are charged or who may be charged under the child pornography statutes, citing section 22-24A-19 of the South Dakota Codified Laws:

“The provisions of [the state’s child pornography and child sexual exploitation laws] do not apply to the performance of official duties by any law enforcement officer, court employee, attorney, licensed physician, psychologist, social worker, or any person acting at the direction of a licensed physician, psychologist, or social worker in the course of a bona fide treatment or professional education program.”

The attorney sought to assert the state law as an affirmative defense with the following jury instruction: “it is a defense to a child pornography charge if the purpose of [the defense attorney] in viewing child pornography was to render legal advice to a client. If such facts exist, they create a defense to the charge of possession of child pornography.”

After litigating the issue of whether South Dakota’s law was preempted by federal law, the attorney was allowed to assert the affirmative defense,^[7] and he was acquitted of all charges. One wonders whether this same approach might have worked for the Ohio attorney-expert in the first example, who, in 2010, tried a different approach by bringing suit for declaratory and injunctive relief against the U.S. Attorney General, seeking to enjoin the United States from enforcing any of the child pornography statutes against Ohio criminal defense attorneys or defense experts, based on a similar state statute in Ohio and lack of federal preemption. That effort was not successful.^[8]

I am aware of only one instance in which a computer forensics examiner who was not an attorney requested and was granted permission to remove contraband to the examiner’s lab. This occurred after an analysis of preemption issues by a Minnesota state district (trial) court.^[9] Because the examiner’s activities were, apparently, not known or challenged by federal authorities, the providence of his actions and the state court’s ruling remains unsettled.

Inadvertent Acquisition: Examples

The unwitting acquisition of contraband by an attorney is a significant risk. In my digital forensics practice, I have been a witness to and an affected party on three different occasions, described below. To guard against this risk, I include the following boilerplate in my services agreement, a copy of which I provide to counsel:

“If a forensic examination in a setting outside of a law enforcement facility(during a defense examination) reveals the existence of possible child pornography on the examined media, [digital forensics company] will immediately cease its examination and advise CLIENT and appropriate law enforcement authorities of the nature of the materials found. [digital forensics company] will not actively search for child pornography unless instructed to do so by CLIENT or CLIENT’s counsel, however, it is possible that [digital forensics company] may inadvertently come across contraband images. Reporting and activities incident thereto constitute ‘Professional services’ for purposes of this Agreement.”

In one case, I was sent an alleged victim’s mobile device. The alleged victim was a minor. The attorney who provided the phone had not inspected the phone but understood there was a possibility that the phone contained nude photos created by the phone’s owner. We discussed the protocol prescribed in my services agreement. Unfortunately, I did encounter such photos. I contacted the attorney first as a courtesy and then contacted a local law enforcement agency to take possession of the device. I completed a secure wipe of my processing computer’s hard drive to render any data forensically unrecoverable, in accord with the law enforcement agency’s instructions.

In the second case, a prosecutor provided voluminous discovery to defense counsel (my client). Digital photographs were among them. My client made these available to me via Dropbox. I paid no attention to file names when I was reviewing the discovery and so was shocked to discover an image of child pornography on my screen (and in my own Dropbox account). The file in question had some variation of the phrase “child pornography” as part of the file name, which should have served as a warning to all parties involved in the handling and transfer. Again, I followed my protocol. First, I placed a courtesy call to my client and then to the local FBI field office. I was instructed by an FBI special agent to delete the image, and he referenced the safe-harbor provision of 18 U.S.C. § 2252(c).

In the third case, an attorney provided a client’s phone to me via courier. The attorney had read my contract and raised no concerns. The phone, she said, had already been in the custody of law enforcement, so neither of us had even considered the possibility of contraband. I performed an extraction and returned the device via FedEx overnight. A few days later, when I began examining the phone, I encountered what I believed to be contraband. Again, I followed my protocol (a courtesy call first to the client, followed by a call to law enforcement). In this instance, the local Internet Crimes Against Children task force liaison consulted with the local FBI field office and then requested a copy of the extraction and instructed me to delete the original.

The attorney in this last example initially and strongly believed that I was not required to contact law enforcement and did not believe she needed to notify law enforcement about the device that was now in her office. Citing to Ethics 8/76B,^[10] concerning whether a lawyer has an obligation to reveal a client’s whereabouts when the client is a fugitive, the lawyer believed she had an obligation to keep the phone privileged. She also cited E-85-10 as a basis for keeping the phone privileged: the phone was possible evidence of a past crime, not an ongoing or future crime. She believed that I, as her agent, was subject to these perceived obligations.

Likewise, another client took exception to the proviso in my contract. He wrote, “As a contractor working for me on behalf of the client, you become part of our circle of attorney/client confidentiality. If you discover something illegal on my client’s device, I can’t have you making a report to the police. The same as if I know that my client did something illegal, I’m not allowed to report them to the authorities.”^[11]

Why and When to Contact Law Enforcement

Respectfully, I submit that the foregoing arguments in support of not contacting law enforcement by the attorney or the attorney’s agent (for example, a digital forensics expert) are mistaken. These arguments fail to distinguish between knowledge of a client’s past commission of a crime and the present commission of a crime by the attorney or the attorney’s agent in possessing, producing, or transporting contraband.^[12]

Section 119 of the Restatement Third, The Law Governing Lawyers, provides that a lawyer must notify prosecuting authorities of the lawyer’s possession of the physical evidence of a client crime:

“With respect to physical evidence of a client crime, a lawyer: (1) may, when reasonably necessary for purposes of the representation, take possession of the evidence and retain it for the time reasonably necessary to examine it and subject it to tests that do not alter or destroy material characteristics of the evidence; but (2) following possession under Subsection (1), the lawyer must notify prosecuting authorities of the lawyer’s possession of the evidence or turn the evidence over to them.”^[13]

During my research, I have found very little about an attorney’s obligations in these circumstances. As noted above with the case of the South Dakota lawyer, some states create a privilege for certain persons to possess contraband and, because the Adam Walsh Act is construed as applying to federal judicial proceedings with regard to the handling of contraband by the defense, state law is not preempted.

I did, however, find a relevant Above the Law blog post. The author construed 18 U.S.C. § 2252, which criminalizes anyone who “knowingly possesses” contraband, as a strict-liability offense for attorneys, subject to the safe-harbor provision of three or fewer images in 18 U.S.C. § 2252(c).^[14] The author wrote, “At the moment when your computer – or a computer in your custody or control – has child pornography on it, you knowingly possess it.” He continued, “There’s no ‘I didn’t possess it for a creepy reason’ defense in the statute…. So assuming you have more than three images, what are your options?”

However, I think that author has misconstrued the statute, which, owing to judicial precedent, is subject to a more reasonable construction. In United States v. X-Citement Video Inc.,^[15] the U.S. Supreme Court considered subsections (1) and (2) of the same statute and inferred a scienter element, such that a defendant should not be liable without wrongful intent. The Supreme Court relied on Staples v. United States for the proposition that the standard presumption in favor of a scienter requirement should apply to each statutory element that criminalizes otherwise innocent conduct.^[16]

Another commentator who considered the issue in the context of representing a minor victim wrote,
“[T]here is no codified safe harbor for the possession or receipt of sexually explicit images by counsel…. At a minimum, counsel … should report the sexually explicit images … to the Cyber Tipline of the National Center for Missing and Exploited Children referenced in 18 U.S.C. § 2258 and report the images to federal law enforcement. Further, if law enforcement declines to prosecute, counsel should ask the Court to escrow the images upon initiating a civil legal action.”^[17]

There are few examples in criminal law of a statute applying in a way that creates an affirmative obligation to act. I have not come across any cases that have explored this facet of the federal possession prohibition, but I contend that, once a person becomes aware that the person is in possession of contraband, an affirmative duty to dispossess the contraband is triggered. Other commentators have come to similar conclusions.^[18] While the law does not state the length of time until scienter attaches, I would expect courts to apply a reasonableness standard.

To clarify, although an attorney (and the attorney’s agent) are required to dispossess themselves of the contraband, the lawyer is still bound to protect the client’s confidence. These two obligations may come into conflict, especially if the attorney knows that surrendering a device that contains contraband to law enforcement is tantamount to revealing the client’s identity (because law enforcement may be able to independently identify the owner of the computer or phone). But, even as an attorney is required to protect the client’s confidence, neither the attorney nor the attorney’s agent should continue to possess, reproduce, transport, or tamper with the contraband (except to the extent that 18 U.S.C. § 2252 authorizes destruction of three or fewer images).

Conclusion

An attorney or an attorney’s agent who comes into inadvertent possession of contraband does not have a privilege to hold on to the evidence and must turn it over to law enforcement after a reasonable period of nondestructive inspection. The moment that knowledge is attained, scienter attaches for the willful failure to execute this affirmative duty. Likewise, the attorney cannot expect the attorney’s agent (for example, a digital forensics examiner, private investigator, or paralegal) to commit the crime of possessing, reproducing, or transporting contraband in violation of federal law.

As a best practice, attorneys should discuss with clients whether contraband might exist on a device before the attorney provides the device to a digital forensics examiner.^[19] Likewise, attorneys should discuss with the examiner the protocol that will be observed if contraband is encountered, whether the case is civil or criminal. The details of the examiner’s protocol for incident handling should be memorialized in the services contract. An attorney might wish to instruct the examiner that dispossession does not mean the examiner is required to affirmatively disclose the client’s identity or other confidential details of the engagement that would otherwise be protected under the work-product doctrine. Nevertheless, a law enforcement agency might demand that the examiner disclose the identities of both the attorney and the client and could demand the passcode for unlocking the device. The client’s Fifth Amendment rights cannot be vicariously invoked by the examiner. Likewise, because the attorney-client privilege has not yet been extended to Wisconsin attorneys’ experts, an examiner will be unable to invoke the privilege on a client’s behalf.^[20] In such instances, the interests of the client and the interests of the examiner may diverge.

Also of Interest
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Endnotes

[1] See Wis. Stat. § 971.23(11)(c)2.; State v. Bowser, 2009 WI App 114, 321 Wis. 2d 221, 772 N.W.2d 666.

[2] United States v. Shreck, N.D. Oklahoma No. 03-CR-0043-CVE, 2006 WL 7067888 (May 23, 2006).

[3] Ibid.

[4] In re Boland, 946 F.3d 335, 337-38 (6th Cir. 2020).

[5] Doe v. Boland, 630 F.3d 491 (6th Cir. 2011); see also In re Boland, 946 F.3d 335.

[6] Disciplinary Counsel v. Taylor, 2024-Ohio-1082; see also Roe v. Taylor, 2024-Ohio-2714.

[7] United States v. Flynn, 709 F. Supp. 2d 737 (D.S.D. 2010).

[8] Boland v. Holder, No.: 1:09 CV 1614 (N.D. Ohio Sep. 30, 2010).

[9] Order granting Motion to Compel Discovery, Third Judicial District Court, No. 81-CR-09-1180, State of Minnesota v. Carney-Blount (April 7, 2010), https://www.dropbox.com/scl/fi/789lc5upvfd5y7kg6zg7r/2010-04-07_order.pdf?rlkey=cqmtrxj53e19eta37yzqosk6j&e=1&st=dexiku36&dl=0.

[10] “If the attorney is required to reveal the client’s whereabout by court order so that DR 4-101(c)(2) applies, but the attorney’s knowledge qualifies as privileged, s/he could still resist disclosure under Wis. Stat. sec. 905.03(3).”

[11] I did not strike the clause in the agreement, and I will decline work if a client insists that I strike the clause.

[12] As for the fugitive-client analog offered by one of the attorneys, that fails for the same reason in that it doesn’t distinguish between knowledge of a fugitive client’s location and the crime of providing aid and harboring a fugitive by the attorney.

[13] See also ABA Standards for Criminal Justice: Defense Functions § 4-4.6, which advises that counsel can receive an item that constitutes contraband “for a reasonable period of time” if counsel, inter alia, “reasonably fears that return of the item to the source will result in the destruction of the item”; “intends to test, examine, inspect or use the item in any way as part of defense counsel’s representation of the client”; or “the item cannot be returned to its source.”

[14] Matt Kaiser, A Child Pornography Puzzle, Above the Law (Nov. 12, 2015), https://abovethelaw.com/2015/11/a-child-pornography-puzzle/.

[15] 513 U.S. 64 (1994).

[16] 511 U.S. 600, 619. See also State v. Schaefer, 2003 WI App 164, 266 Wis. 2d 719, 668 N.W.2d 760 (criminal responsibility may not be imposed without some element of scienter, the degree of knowledge that makes a person legally responsible for the consequences of the person’s act or omission).

[17] Russell Bogard, Representing Teen Victims of Online Pornographic Postings: Litigation Challenges and Strategies, 18 NY Litigator 1 (New York State Bar Ass’n, 2013).

[18] See, e.g., Matthew L. Mitchell, What to Do When Your Client Discovers Child Pornography on Workplace Computers?, 56 Boston Bar Ass’n 3 (2012), https://bostonbar.org/journal/what-to-do-when-your-client-discovers-child-pornography-on-workplace-computers/;see also H. Michael Steinberg, Defending Against Sex Crimes – Understanding Your Rights During the Investigation Phase (“One principle emerges clearly from the case law: When the lawyer takes physical possession of incriminating evidence, he has an affirmative duty to give the incriminating evidence to the proper authorities.”), https://www.colorado-sex-crimes-lawyer.com/the-sex-crimes-investigation-phase-issues-and-tactics/colorado-criminal-law-defending-against-sex-crimes-investigations-understanding-your-rights-during-the-investigation-phase (last visited May 12, 2025).

[19] The risk might be substantially greater when working with devices that belong to adolescents, who might be exchanging lewd images and might be reluctant to be transparent with the attorney regarding such activities.

[20] Wis. Stat. § 905.03(3). See alsoAttorney-Client Privilege and the Kovel Doctrine: Should Wisconsin Extend the Privilege to Communications with Third-Party Consultants?, 102 Marq. L. Rev. 605 (2018).