If a lawyer's client has fled and become a fugitive, can the lawyer keep handling the client's other matters, and must the lawyer give the court the client's location?

Plain-English summary

A lawyer had long represented a client on civil and criminal matters. The client had been released to a community "tether" probation program through the lawyer's efforts, then learned of a new criminal charge, removed the tether, and went into hiding. The lawyer still represented the client in a pending divorce and two other civil matters, and the client now wanted the lawyer to handle a fire-damage claim and recover a seized vehicle, asking the lawyer to prepare a power of attorney to negotiate and collect the proceeds. The client gave a contact phone number. The lawyer asked whether continuing to serve the client would amount to assisting illegal conduct, and whether the lawyer had to turn the phone number over to the court or prosecutor.

The opinion concluded the lawyer may counsel the client about the folly of breaking probation (MRPC 2.1), but under MRPC 1.2(c) and (d) may not assist illegal or fraudulent conduct once the client disregards that advice. Preparing the power of attorney to recover money and the car would, by the lawyer's own analysis, supply the fugitive with resources and a means to stay hidden while attending to legal matters, contravening MRPC 1.2(c). The opinion treated remaining in hiding as continuing criminal conduct that the lawyer could not ignore.

On disclosure, the opinion concluded MRPC 1.6(c) permits revealing the client's conduct because the privilege does not shield a client's illegal or fraudulent acts furthered by the lawyer's services or a stated intent to commit a future crime; People v Nash confirms communications for an unlawful purpose are not privileged. On any affirmative duty to volunteer the client's whereabouts, the opinion concluded that while MRPC 3.3(b) might suggest no continuing duty if the tether proceeding had concluded, the client's noncompliance would be material when the probationary period expired, triggering an affirmative duty under MRPC 3.3(a)(2) to reveal it. Federal cases (In re Walsh and others) establish a lawyer may not refuse, on privilege grounds, to give a fugitive client's whereabouts when asked. The opinion concluded the lawyer must counsel the client that the requested services cannot be performed while the client remains in violation, must withdraw if persuasion fails (MRPC 1.16(a)(1)), has discretion to disclose the client's conduct (MRPC 1.6(d)), and must disclose the phone number if the court so orders, with failure to comply risking conduct prejudicial to the administration of justice under MRPC 8.4(c).

Currency note

This opinion was issued in 1993, before later amendments to the Michigan Rules of Professional Conduct. MRPC 1.6, 3.3, and the related rules have since been amended, and subsequent rule changes or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer keep handling a fugitive client's unrelated civil matters?

A: No. The opinion concluded the lawyer may not represent the client in collateral or unrelated matters while the lawyer knows the client remains a fugitive.

Q: Can the lawyer prepare a power of attorney so the hiding client can still recover money and property?

A: No. The opinion concluded that doing so would supply the fugitive with resources and a means to stay hidden, contravening MRPC 1.2(c).

Q: Must the lawyer give the prosecutor or court the client's phone number?

A: The opinion concluded the lawyer must disclose the location if a court orders it or the law requires it; absent that, no Michigan authority requires volunteering it except MRPC 3.3(a)(2) when triggered.

Q: What must the lawyer do if the client refuses to surrender?

A: The opinion concluded the lawyer must withdraw under MRPC 1.16(a)(1) and has discretion to disclose the client's conduct under MRPC 1.6(d).

Background and rules framework

The opinion applied Michigan's counseling, confidentiality, candor, and withdrawal rules. MRPC 2.1 (Model Rule 2.1) frames the lawyer's role as candid counselor. MRPC 1.2(c) and (d) (Model Rule 1.2) bar assisting known illegal or fraudulent conduct. MRPC 1.6(c) (Model Rule 1.6) permits disclosure of a client's crime-furthering conduct or intended future crime. MRPC 3.3(a) and (b) (Model Rule 3.3) govern candor to a tribunal and the continuing duty even over Rule 1.6 information. MRPC 1.16(a)(1) (Model Rule 1.16) requires withdrawal when continued representation would violate the rules, and MRPC 8.4(c) (Model Rule 8.4) addresses conduct prejudicial to the administration of justice. The opinion relied on People v Nash and federal authority (In re Walsh; Litton Industries v Lehman Brothers; Burden v Church of Scientology) on the limits of privilege for a fugitive's whereabouts.

Citations and references

Rules of Professional Conduct:

• MR 1.2 / MRPC 1.2(c), (d) (not assisting illegal conduct)
• MR 1.6 / MRPC 1.6(c) (permitted disclosures)
• MR 1.16 / MRPC 1.16(a)(1) (mandatory withdrawal)
• MR 2.1 / MRPC 2.1 (lawyer as advisor)
• MR 3.3 / MRPC 3.3(a), (b) (candor toward the tribunal)
• MR 8.4 / MRPC 8.4(c) (conduct prejudicial to the administration of justice)

Cases:

• People v. Nash, 110 Mich App 428 (1981), communications for an unlawful purpose are not privileged
• In re Walsh, 623 F2d 489 (CA 7, 1980), cert den 449 US 994 (1980), fugitive client's whereabouts not privileged
• Litton Industries Inc v. Lehman Brothers Kuhn Loeb Inc, 130 FRD 25 (SD NY, 1990), disclosure of client whereabouts
• Burden v. Church of Scientology, 526 F Supp 44 (MD Fla, 1981), disclosure of client whereabouts

See also

• ABA Formal Op. 92-366: noisy withdrawal to avoid assisting a client fraud
• ABA Formal Op. 491: avoiding counseling or assisting a crime or fraud
• Mich Ethics Op. RI-151: duty when a client's filed pleadings are false
• Mich Ethics Op. RI-72: discharged lawyer's duty to keep a client confession confidential

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1030&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

RI-160

April 14, 1993

SYLLABUS

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).

TEXT

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.