Ethics Opinions

Opinion No. 77-12

December 1977

Summary: A former client telephones an attorney, saying that although he has not been apprehended, and is not in default on bail or probation, arrest warrants are outstanding against him in both state and federal jurisdictions. He asks the attorney to advise him with regard to the status of his case, but rejects the attorney's advice to surrender himself. The attorney cannot properly continue to represent the fugitive as a client, if the client's remaining at large involves a criminal act (such as the federal offense of flight from a state to avoid prosecution) or a contempt of court. If any such crime or contempt or other fraud upon a court occurs after the attorney has been contacted by the former client for advice, the attorney has the obligation to give to the proper authorities any information he may have with regard to the fugitive's whereabouts.

Facts: A former client telephones an attorney, saying that there are outstanding arrest warrants against him in both state and federal jurisdictions. The attorney, after verifying these facts, advises the former client that he has an obligation to surrender himself to the arresting authorities.
The former client says he is not out on bail, and has not been apprehended for the crimes in question. He wishes to retain the attorney as his lawyer, remaining in communication by telephone and in person. The attorney also represents a co-defendant in the case, but states that there is no conflict of interest between the two co-defendants. He asks:
(1) May he properly accept the former client as a client, and advise the client of the status of the case and of his theory of defense?
(2) May he properly advise the fugitive client of unprivileged matters that have developed in the co-defendant's case?
(3) Does he have any obligation to reveal any knowledge he has of the exact location of the fugitive client to the authorities?

Discussion: (1) DR 7-102(A)(7) of S.J.C. General Rule 3:22 provides:
(A) In his representation of a client, a lawyer shall not:
(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.

Two early ABA opinions (Formal Opinions 155 and 156, May 4, 1936) have considered the obligations of an attorney when he learns that his client, while out on bail, fails to appear and flees the jurisdiction, or while released on probation after conviction, leaves the jurisdiction and thereby violates the terms of his probation.

Opinion 155 held that a defendant out on bail is "in the custody of the law." Hence, he is guilty of an escape when he gains his liberty (by failing to appear when his case is called) before he is delivered in due process of law, and is guilty of a separate offense for which he may be punished. In failing to disclose his client's whereabouts as a fugitive under these circumstances the attorney would not only be aiding his client to escape trial on the charge for which he was indicted, but would likewise be aiding him in evading prosecution for the additional offense of escape.
The opinion therefore concluded that the attorney's knowledge of his client's whereabouts was not privileged. Accordingly, the attorney might be disciplined if, upon his client's refusal to surrender upon his advice, he failed to disclose his client's whereabouts to the proper authorities, or continued to act as his attorney.

Opinion 156 held that "when an attorney representing a client in a criminal case applies on his behalf for probation or suspension of sentence, he represents to the court, by implication at least, that his client will abide by the terms and conditions of the court's order." Information that the client rejects the attorney's advice to conform to these conditions is not privileged, the opinion held. Therefore, "it is the duty of the attorney as an officer of the court to advise the proper authorities concerning his client's conduct."

On the facts stated by our inquiries, neither of these opinions is applicable to the case before us, unless it can be shown that the former client is committing a criminal act (or a contempt of court) by refusing to surrender. This is of course a question of substantive law, which our rules do not permit us to answer. One possible crime would be the federal crime under 18 U.S.C.A. S1073, of leaving the state to avoid prosecution for a state crime.

The former client in our case has not defaulted on any bail by failing to appear, as in Opinion 155. Nor has the attorney applied on his behalf for probation or suspension of sentence after conviction. Hence, unless there is proof of some other criminal act (or contempt of court) by the former client in refusing to surrender himself on the warrants, we do not believe that the attorney is precluded from accepting the former client as a client and advising him regarding the case.
(2) We reach a similar conclusion with regard to advice from the attorney on unprivileged matters that have developed in the co-defendant's case, assuming there is no conflict of interest involved of the kind prohibited by DR 5-105.
(3) A limited duty to inform the authorities of a client's wrongdoing is created by DR 7-102(B)(1), when a lawyer "receives information clearly establishing that: (1) His client has, in the course of the representation, perpetrated a fraud upon a person or tribunal ... ." (The ABA amendment in February 1974 adding the qualification "except when the information is protected as a privileged communication" has not yet been adopted by the Supreme Judicial Court.) Here, as in both (1) and (2) above, the holdings of Opinions 155 and 156 that the information was not privileged and that the attorney had a duty to report it to the proper authorities, do not apply in our case, unless as a matter of substantive law the former client had "in the course of the representation" perpetrated some kind of fraud upon the state or federal court issuing the arrest warrants. If fleeing the state to avoid prosecution (the federal crime) has already been committed before the creation of the lawyer-client relationship, it would not have been "in the course of the representation," even if it would (as a matter of substantive law) constitute perpetration of "a fraud upon a person or tribunal." There would therefore be no obligation on the attorney under DR 7-102(B)(1) to reveal it. But if the flight took place after the creation of the lawyer-client relationship, and constituted "a fraud upon a person or tribunal," there would be a clear duty of disclosure.

Permission to publish granted by the Board of Delegates, 1977. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.