Can a lawyer follow a fugitive client's instructions to sell assets, pay creditors, and forward proceeds, and keep representing the client civilly?
Apply this to your situation
This page answers the general question as of 1999. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer represented a client who had become a fugitive from criminal charges, and asked whether she could continue to follow the client's instructions to sell the client's assets, place the proceeds in escrow, pay the client's creditors, and forward the balance to the client, and whether she could keep representing the client in the related civil matter.
The Committee framed the analysis around the Code's bar on assisting client crime or fraud. Under DR 7-102(A)(7), a lawyer may not counsel or assist a client in conduct the lawyer knows to be illegal or fraudulent, so if the client is legally barred from the conduct, or the lawyer knows the client will use the lawyer's services for an illegal purpose, the lawyer may not proceed. Under DR 7-101(B)(2), a lawyer has discretion to refuse to participate in conduct the lawyer believes (but does not know) to be unlawful. The Committee added that where a fugitive client requests otherwise-legal conduct under suspicious circumstances, the lawyer must satisfy herself there is reasonable support for an argument that the purpose is legal before acting, quoting ABA authority that a lawyer "cannot escape responsibility by avoiding inquiry."
Applying these principles, the Committee concluded the lawyer may sell the client's assets and escrow the proceeds, and, absent knowledge or belief of illegality, has an obligation under DR 9-102(C)(4) to deliver the client's property as instructed, including paying creditors and forwarding the balance, while cautioning that whether doing so would itself further the crime of remaining a fugitive is a legal question for the lawyer to resolve. On the civil representation, the Committee declined to follow opinions requiring withdrawal merely because the client is a fugitive; under DR 2-110 and EC 7-5, continued representation is permissible so long as it would not result in a violation of a Disciplinary Rule, though the lawyer retains discretion to withdraw under DR 2-110(C).
Currency note
This opinion was issued in 1999, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules and Ethical Considerations cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. Subsequent rule amendments 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 sell a fugitive client's assets and hold the proceeds?
A: Yes. The opinion concluded a lawyer may ethically sell a fugitive client's tangible assets and place the proceeds in escrow, as long as the lawyer does nothing to help the client escape prosecution or further another illegal act.
Q: Can the lawyer forward the proceeds and pay the client's creditors?
A: Generally yes. The opinion concluded that, absent knowledge or belief that the transfer is illegal or will further an illegal purpose, the lawyer has an obligation under DR 9-102(C)(4) to deliver the client's property as instructed, including paying creditors and forwarding the balance.
Q: What if the lawyer suspects the client will misuse the funds?
A: The opinion concluded the lawyer may not act if she knows the conduct is illegal or will further an illegal act (DR 7-102(A)(7)), and has discretion to refuse if she believes but does not know it is unlawful (DR 7-101(B)(2)); under suspicious circumstances she must first satisfy herself the purpose is legal.
Q: Must the lawyer withdraw from the civil case because the client is a fugitive?
A: No. The opinion concluded fugitive status does not require mandatory withdrawal under DR 2-110, so the lawyer may continue the related civil representation so long as it would not result in a rule violation, while retaining discretion to withdraw.
Background and rules framework
The opinion interpreted New York's then-governing DR 7-102(A)(7) (not assisting conduct the lawyer knows is illegal or fraudulent, the concern of Model Rule 1.2(d)), DR 7-101(B)(2) (discretion to refuse believed-unlawful conduct), DR 9-102(C)(4) (delivering client property, the analog of Model Rule 1.15), and DR 2-110 (withdrawal, the analog of Model Rule 1.16). The analysis turned on the lawyer's knowledge or belief about the legality of the requested conduct.
Citations and references
Rules of Professional Conduct (then in effect):
- DR 7-102(A)(7) (assisting known illegal or fraudulent conduct; concern of Model Rule 1.2(d))
- DR 7-101(B)(2) (discretion to refuse believed-unlawful conduct)
- DR 9-102(C)(4) (delivering client property; analog of Model Rule 1.15)
- DR 2-110 (withdrawal; analog of Model Rule 1.16)
Other opinions cited:
- ABA Informal Opinion 1470 (1981): duty of further inquiry where representation may aid fraud
- N.Y. State Bar Opinion 529 (1981): continued representation of a fugitive client
See also
- ABA Formal Op. 491: Avoiding Counseling or Assisting a Crime or Fraud
- ABA Formal Op. 463: Client Due Diligence and Money Laundering
Source
Get today's answer for your situation
You just read a 1999 opinion on this question. Ezel checks the current New York Rules of Professional Conduct and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.