Must a lawyer withdraw from representing a fugitive client who refuses to surrender?

Plain-English summary

The committee considered whether a lawyer must withdraw from representing a fugitive client who refuses to surrender. It framed the issue as balancing the lawyer's duty to the client against the lawyer's duty as an officer of the court, and concluded that the interests of justice and the ethics of the profession are best served when the lawyer continues to give legal advice to the fugitive client. It grounded that conclusion in the Sixth Amendment right to counsel, quoting Brewer v. Williams on the lawyer as the essential medium between the individual and the power of the State, and noting that the right is no less significant because the client remains a fugitive.

The committee read the Code not to require withdrawal: EC 7-5 lets a lawyer continue representing a client who pursues a course contrary to the lawyer's advice, so long as the lawyer does not knowingly assist illegal conduct. But it stressed the Code's distinction between giving legal advice and giving advice that would help the client escape punishment for past crimes; EC 7-5 and DR 7-102(A)(7) forbid encouraging or aiding the client to violate the law or avoid punishment. The committee acknowledged a line of authorities (including ABA Inf. 1141 (1970) and ABA 155 (1936)) holding that a lawyer must withdraw, and even reveal a fugitive's whereabouts, once the client refuses to surrender, on the theory that continued representation aids a continuing crime.

The committee declared that line of authority unsound and declined to follow it. It held that a lawyer should not be required to withdraw simply because a client refuses to surrender, no matter how many times the client refuses, and the lawyer remains free to give legal advice and to represent the client before the authorities, as long as the lawyer does nothing to aid the escape (citing United States v. Weinstein). A contrary rule would remove the lawyer from a position to negotiate the client's surrender. The committee found DR 2-110(B) did not compel withdrawal, provided continued representation is limited to advice on the client's legal rights and liabilities or negotiation of surrender and the lawyer in no way aids the escape (citing N.Y. State 455 (1976)). The question, whether withdrawal is required, was answered in the negative.

Currency note

This opinion was issued in 1981, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (the scope of representation and the bar on assisting crime or fraud now appear at Rule 1.2, and withdrawal at Rule 1.16). The opinion notes that ABA 155 and 156 (1936) were withdrawn by ABA 349 (1984). 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: Must a lawyer drop a fugitive client who won't turn himself in?

A: No. The committee held that a lawyer is not required to withdraw merely because the client refuses to surrender, and it makes no difference how many times the client refuses.

Q: What may the lawyer still do for the fugitive?

A: Give legal advice about the client's rights and liabilities and negotiate the client's surrender, so long as the lawyer does nothing to aid the client in escaping prosecution.

Q: Where is the line the lawyer cannot cross?

A: The lawyer may not encourage or aid the client to violate the law or avoid punishment for past crimes (EC 7-5; DR 7-102(A)(7)); advice that crosses into helping the client remain at large is prohibited.

Background and rules framework

The opinion applied EC 7-5 (continuing representation despite a client's contrary course), DR 7-102(A)(7) (not counseling or assisting illegal conduct), and DR 2-110(B) and (C) (mandatory and permissive withdrawal), to representation of a fugitive. The closest current Model Rule analogues are Rule 1.2 (scope of representation; not assisting crime or fraud) and Rule 1.16 (declining or terminating representation).

Citations and references

Rules of Professional Conduct:

• MR 1.2 (scope of representation)
• MR 1.16 (withdrawal)
• NY EC 7-5, DR 2-110(B), DR 2-110(C), DR 7-102(A)(7)

Cases:

• Brewer v. Williams, 430 U.S. 387 (1977), Sixth Amendment right to counsel
• Kirby v. Illinois, 406 U.S. 682 (1972), attachment of the right to counsel
• United States v. Weinstein, 511 F.2d 622 (2d Cir. 1975), motions on behalf of fugitive defendants

Other opinions cited:

• ABA Inf. 1141 (1970); ABA 155, 156 (1936) (withdrawn by ABA 349 (1984)): contrary view requiring withdrawal
• N.Y. State 455 (1976): legal advice alone is not assisting illegal conduct

See also

• NY State Bar Op. 530: Turning over physical evidence held for a client
• NY State Bar Op. 528: Client whereabouts and the duty to preserve confidences

Source

• Landing page: https://nysba.org/opinion-529/