Is it unethical for a lawyer to advise a client charged with a crime to hide for a short time before surrendering?

Plain-English summary

The inquiry described a woman charged with a capital felony who had not been apprehended. She came to an attorney's office on a Saturday seeking advice, and he advised her to hide until Monday morning, when he would take her to surrender to the police. She did hide until Monday, and he then took her to surrender. The question was whether the attorney's advice, and his failure to disclose her whereabouts, was unethical.

The Committee framed the answer around the legality of the conduct. It noted that the Rules of the State Bar define professional misconduct to include fraudulent or dishonorable conduct and any willful violation of the Canons. Canon 29 prohibits rendering service or advice involving disloyalty to the law and requires the lawyer to observe, and advise the client to observe, the statute law (though the lawyer may construe a statute or advise on its validity). Canon 34, on preserving client confidences, excludes a client's announced intention to commit a crime from protected confidences. The Committee observed that the Texas Canons neither expressly forbid advising a client to hide temporarily nor expressly require the lawyer to surrender the client or report the client's whereabouts.

The Committee held that the ethics question turns on the legality of the conduct, which is a question of law beyond its province. If the law forbids the advice given, or requires the lawyer to disclose the concealed facts, then the lawyer's violation of the law is also unethical; the duty to the client does not justify violating the law. Because Canon 29 requires advising the client to observe the statute law, if the client's temporary hiding violates the statute law, the lawyer's advice violates Canon 29. The ruling was 9-0.

Currency note

This opinion was issued in 1966, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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: Is it unethical to advise a client charged with a crime to hide temporarily before surrendering?

A: The Committee said it depends on whether the advice or the hiding violates the law. If the law forbids the advice or requires disclosure, the lawyer's violation of the law is also unethical.

Q: Did the Committee decide whether the hiding was illegal here?

A: No. The Committee said that is a question of law beyond its province; the ethics answer follows from the legality of the conduct.

Q: How does the duty of confidentiality apply to the client's whereabouts?

A: The Committee noted that Canon 34 excludes a client's announced intention to commit a crime from protected confidences, but it resolved the question on Canon 29's duty to observe and advise observance of the statute law, not on confidentiality.

Background and rules framework

The opinion interprets former Texas Canon 29 (a lawyer must not render advice involving disloyalty to the law and must advise the client to observe the statute law) and Canon 34 (preserving client confidences, excluding a client's intention to commit a crime). The modern analogs are ABA Model Rule 1.2(d) (a lawyer may not counsel or assist a client in conduct the lawyer knows is criminal or fraudulent), Model Rule 1.6 (confidentiality), and Model Rule 8.4 (misconduct).

Citations and references

Rules of Professional Conduct:

• MR 1.2(d) (counseling or assisting crime or fraud), as the modern analog
• MR 1.6 (confidentiality of information), as the modern analog
• MR 8.4 (misconduct), as the modern analog
• Texas Canons 29 and 34 (former canons)

Other authorities:

• Rules of the State Bar of Texas, Article XII, Part B, Sec. 8 (definition of professional misconduct)

See also

• TX Ethics Op. 353: Confidentiality of a Client Confiding a Past Crime
• TX Ethics Op. 341: Suing a Client for a Fee and the Use of Confidences

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-315/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_315.pdf

Original opinion text

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

QUESTION PRESENTED

A woman is charged with a capital felony but has not been apprehended. She goes to an attorney's office on Saturday and seeks advice. He advises her to hide until Monday morning at which time he will take her to surrender to the police. She does hide until Monday morning, and he then takes her to the police. In giving such advice and failing to disclose her whereabouts, is the attorney guilty of unethical conduct?

23 Baylor L. Rev. 839 (1972)

VIOLATION OF THE LAW - ADVISING A CRIMINAL CLIENT TO HIDE TEMPORARILY
Whether or not it is unethical to advise a client who is charged with a crime to hide temporarily depends upon whether or not such advice, or the act advised, violates the law.

Canon 29.

The Rules of the State Bar of Texas define professional misconduct as including any fraudulent or dishonorable conduct as well as any willful violation of the Canons of Ethics. Article XII, Part B, Sec. 8. Canon 29 prohibits a lawyer from rendering any service or advice involving disloyalty to the law or betrayal of the public and requires him to observe, and advise his client to observe, the statute law (though he may construe a statute or give advice as to its validity). Canon 34, under which a lawyer has the duty to preserve his client's confidence, provides that the announced intention of a client to commit a crime is not included within the confidences which he is bound to respect, and that he may properly make such disclosures as to prevent the act or protect those against whom it is threatened. The Texas Canons do not expressly forbid advising a client to hide temporarily, nor do they expressly require the attorney to surrender his client or inform the police as to his client's whereabouts.

The present inquiry involves a question of law which is beyond the province of this committee. In our opinion, the ethics question in this instance depends upon the legality of the conduct. If the law forbids the advice given or requires the attorney to make disclosure of the facts concealed, his violation of the law is also unethical. His duty to his client does not require or justify violating the law. Furthermore, Canon 29 requires the attorney to advise his client to observe "the statute law," so that, if the client's temporary hiding violates the statute law, then the attorney's advice violates Canon 29. (9-0.)

Tex. Comm. On Professional Ethics, Op. 315 (1966)