April 14, 1993
A lawyer may not aid or abet a client who has chosen independently to become a fugitive from justice. The lawyer may not represent the client in collateral or unrelated matters while the lawyer knows the client remains a fugitive.
The lawyer must counsel the client that the requested services may not be performed while the client remains a fugitive. If the lawyer's attempts to convince the client to come forward are unsuccessful, the lawyer must withdraw from representing the client, and may disclose the client's conduct.
A lawyer is required to disclose information concerning the client's location if requested by law enforcement or probationary authority, and is required to voluntarily reveal the information to a tribunal considering whether the client has fully complied with court orders.
References: MRPC 1.2(c) and (d), 1.6(c), 2.1, 3.3(a) and (b), 8.4(c); People v Nash, 110 Mich App 428 (1981); In re Walsh, 623 F2d 489 (CA 7, 1980), cert den 449 US 994 (1980); Litton Industries Inc v Lehman Brothers Kuhn Loeb Inc, 130 FRD 25 (SD NY, 1990); Burden v Church of Scientology, 526 F Supp 44 (MD Fla, 1981).
A lawyer has had a long-standing history representing a client on both civil and criminal matters. The client was released to a community setting and placed on a probationary "tether" program through the efforts of the lawyer. The client discovered there was going to be a new criminal charge and chose to remove the "tether" and went into hiding.
Currently the lawyer represents the client in a pending divorce and in two other civil matters. The lawyer has been contacted by the client to handle a fire damage claim and recovery of an automobile that was seized due to "abandonment." The client requests that the lawyer prepare a power of attorney to authorize the lawyer or a designee to negotiate and recover the proceeds. The client has provided the lawyer with a contact telephone number.
The lawyer asks (1) whether continued legal services would constitute "assisting" the client in illegal or fraudulent conduct; and (2) whether the lawyer is required to turn the client's telephone number over to the court or prosecutor.
The lawyer is presented with a situation where the client has independently chosen to violate the "tether" program and now is in hiding. It must be considered whether a lawyer may continue representing a client who is hiding from the court and determine whether there is a duty to pierce the veil of client-lawyer privilege. MRPC 2.1 states:
"In representing a client, a lawyer shall exercise independent professional judgment and shall render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client's situation."
Clearly, the lawyer is at liberty to try to advise the client as to the folly of breaking probation and going into hiding. The lawyer must act as a counselor to elicit appropriate conduct from the client. MRPC 1.2(c) and (d) state:
"(c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning or application of the law.
"(d) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct."
If a client chooses to disregard prudent advice, the lawyer may not assist in the illegal or fraudulent conduct.
The fact that the client has violated the "tether" program and gone into hiding can be viewed as a continued criminal act. Jurisdictions vary as to whether the act is considered as one completed act or an ongoing act completed only when the fugitive is recovered. However, it is impossible for the lawyer not to acknowledge awareness of the client's illegal behavior.
By the lawyer's own analysis, the lawyer is assisting the client in conduct which is illegal or fraudulent. The client wishes the lawyer to draft a power of attorney to receive funds on the fire damage. Thus, the client wishes the lawyer to recover funds or appoint someone to recover funds which the client would not be able to recover due to the client's "underground" status. The client also wishes the lawyer to help recover the car. The court could assume the client wants to have the lawyer provide the client with money and a car to assist in fleeing the jurisdiction. If the lawyer does provide the power of attorney, there can be no argument that the lawyer is attempting to recover money and a vehicle for the fugitive, and providing a means by which the client may stay hidden but still attend to legal matters, in contravention of MRPC 1.2(c).
MRPC 1.6(c) states:
"A lawyer may reveal:
"(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;
"(2) confidences or secrets when permitted or required by these rules, or when required by law or by court order;
"(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;
"(4) the intention of a client to commit a crime and the information necessary to prevent the crime; and
"(5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct."
Thus, the rules allow an ethical solution for the lawyer. The lawyer-client privilege does not require a lawyer to remain silent in the face of a client's illegal or fraudulent conduct in furtherance of which the lawyer's services have been used, or when a client manifests an intent to commit a future crime (in this case, continue to remain hidden).
In addition to the disclosure permitted by MRPC 1.6(c), case law establishes that a client's statements concerning intent to commit a future crime are not protected by attorney-client privilege. In People v Nash, 110 Mich App 428 (1981), the court stated:
"Professional communications are not privileged when such communications are for unlawful purpose, having for their object the commission of a crime. They then partake of the nature of a conspiracy, or attempted conspiracy, and it is not only lawful to divulge such communications, but under certain circumstances it might become the duty of the attorney to do so . . . . The relation of attorney and client cannot exist for the purpose of counsel in concocting crimes."
Having determined that MRPC 1.6(c) and (d) permit the lawyer to disclose the client's conduct, and that the information is not protected by attorney-client privilege, the lawyer must also consider whether there is a duty to divulge the information. MRPC 3.3(a) and (b) state:
"(a) A lawyer shall not knowingly:
"(1) make a false statement of material fact or law to a tribunal;
"(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
"(3) fail to disclose to a tribunal controlling legal authority in the jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
"(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
"(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6."
It could be argued that the proceeding which resulted in the client being placed on tether has apparently been "concluded," and thus, pursuant to MRPC 3.3(b), the lawyer does not have an affirmative duty to disclose. Presumably, however, the fact that the client has not complied with the tether requirement will be material to the court when the probationary time period has expired. Therefore the lawyer will at that time have an affirmative duty to reveal the client's noncompliance to the court pursuant to MRPC 3.3(a)(2).
Several cases indicate that when asked, a lawyer may not refuse to give information regarding a fugitive client's whereabouts on grounds of privilege. In re Walsh, 623 F2d 489 (CA 7, 1980); cert den 449 US 994; 101 S Ct 531; 66 L Ed 2d 291 (1980); Litton Industries Inc v Lehman Brothers Kuhn Loeb Inc, 130 FRD 25 (SD NY, 1990); Burden v Church of Scientology, 526 F Supp 44 (MD Fla, 1981).
If there is a court order or other law requiring the lawyer to divulge the telephone number, then there is a duty as an officer of the court to comply and divulge the telephone number; failure to disclose could be viewed as a conspiracy to illegal conduct and conduct prejudicial to the administration of justice contravening MRPC 8.4(c). We are not aware of any Michigan authority, other than MRPC 3.3(a)(2) when triggered, which requires the lawyer to volunteer information about the location of the client.
Therefore, the lawyer must counsel the client that the requested services may not be performed while the client remains in violation of the tether requirements. If the lawyer's attempts to convince the client to come forward are unsuccessful, the lawyer has no choice but to withdraw from representing the client, MRPC 1.16(a)(1), and has discretion to disclose the client's conduct, MRPC 1.6(d). Further, the lawyer is obligated to disclose the telephone number of the client if the court orders the disclosure.