Nov. 17, 2021 – What do you do if your client has a warrant and refuses to surrender to authorities – and you are in communication with the client and know their location? A new ethics opinion outlines a lawyer’s responsibilities when representing a fugitive client.

Question

A lawyer represents a client charged with several robberies. The client missed a mandatory court appearance, resulting in issuance of a warrant and additional charges of bail jumping.

The client calls the lawyer and provides contact information and their current location. The client asks the lawyer what exposure they face, their options, and the likely consequences of each. The client is afraid to surrender, worried that a significant sentence might be imposed.

The lawyer is concerned about what information and advice can be provided to the client, whether the client’s contact information and location are protected information, and whether the lawyer must or should withdraw from the representation if the client does not agree to surrender.

Answer

This is the scenario addressed in the recently issued Wisconsin Formal Ethics Opinion EF-21-03 “Responsibilities of a Lawyer with a Fugitive Client.”

The opinion discusses the lawyer’s various responsibilities in this situation.

The Duty to Communicate and Consult

When the client contacts the lawyer, the lawyer has a duty to communicate with the client about the situation, pursuant to SCR 20:1.4:

The lawyer has several obligations. First, the client should be informed of their total exposure to criminal penalties. Second, the lawyer should review all the client’s options, both lawful and unlawful, and the likely consequences of the choice made.

In advising the client, the lawyer may go beyond discussion of the immediate situation and discuss the impact of the client’s decision in the long term, the impact upon others, and other relevant details in the particular case (footnotes omitted).

The opinion notes that, while the lawyer may urge the client to surrender and should assist the client in doing so if the client agrees, the lawyer has no duty to urge the client to surrender.

In fulfilling the duty to communicate with client, the lawyer must be cautious about the prohibition in SCR 20:1.2(d) on assisting a client with criminal or fraudulent conduct:

First, the lawyer may not assist the client in evading apprehension, at least when the underlying behavior constitutes a continuing criminal offense. This invites consideration of what the lawyer may and may not do while representing a fugitive.

Meeting with, speaking to, or having knowledge of the client’s plans absent some type of active encouragement or help does not constitute prohibited assistance. Other actions, however, have been found improper, including directly assisting the client’s flight from the jurisdiction or helping the client remain in a secret location when knowing they were subject to active warrants (footnotes omitted).

It is important to note that providing advice to the client about the legal consequences of their actions does not constitute prohibited assistance under SCR 20:1.2(d).

Confidentiality and Privilege

The lawyer in possession of information about a fugitive client’s whereabouts and​ perhaps, their plans, may question whether the lawyer may or must disclose such information. The answer under Wisconsin’s rules is clear;:

(T)he Committee believes that SCR 20:1.6 neither requires nor permits a Wisconsin lawyer to disclose the location of or contact information for a fugitive client absent client consent or a court order.

A related question may arise when the client fails to appear for a scheduled court appearance and the presiding judge asks the lawyer why the client is not present. While the lawyer may not make a false statement in response to the court’s inquiry, the lawyer is under no obligation to inform the court where the client is, if known, how the client may be contacted, or whether the client knew about the appearance and SCR 20:1.6 generally prohibits the lawyer from providing such information to the court (footnotes omitted).

A related question arises if the court directly orders the lawyer to disclose information about the client’s whereabouts or other information. SCR 20:1.6(c)(5) permits a lawyer to discloses information pursuant to a court order or other law, but if there is a plausible argument that the information is protected by the evidentiary privilege, the lawyer is obliged to raise the privilege and force the court to make a ruling before any disclosure.

The Ethics Committee usually refrains from addressing questions of law, such as questions about lawyer-client privilege, but the committee determined it was appropriate to include a brief discussion of the privilege in EF-21-03 to assist lawyers who find themselves facing such inquiries from a tribunal.

Other issues beyond those discussed above are addressed in the opinion, and any lawyer who is confronted with the possibility of being asked by a court to explain the absence of a client is encouraged to read EF-21-03.