If an accused person calls a lawyer for help turning himself in, can the lawyer give police the client's phone number or whereabouts?

Plain-English summary

Opinion 97-02 addressed a lawyer whom an accused felony suspect contacted by telephone after learning a warrant had issued for his arrest. The caller gave the lawyer information, including a phone number, and the lawyer agreed to represent him solely to help him turn himself in. After the lawyer arranged a surrender with the authorities, the client failed to call back, and the lawyer could not reach him. A law enforcement officer then asked the lawyer to contact the client while the officer listened and to provide the client's phone number, suggesting the lawyer could be prosecuted for harboring a fugitive if he refused. The lawyer declined both requests and asked the Committee whether that was proper.

The Committee concluded that an attorney-client relationship was established when the caller sought and received the lawyer's advice, noting such a relationship can arise from brief informal conversations, in person or by telephone, even with no fee discussed and no contract signed. Because the relationship existed, the information the client gave was confidential under Rule 1.6, which bars revealing information relating to the representation unless an exception applies. The Committee found none of Rule 1.6's exceptions applicable and stressed that the client's status as an accused or a fugitive was not relevant; the lawyer was ethically barred from revealing the information even though disclosure would help apprehend the client.

The Committee also explained that while a lawyer may not assist a client in criminal or fraudulent conduct (Rule 1.2), declining to reveal a phone number does not assist any such conduct. And although Rule 1.6(b)(4) permits disclosure to comply with other law, the comment establishes a presumption against concluding that another provision of law supersedes Rule 1.6, and nothing in these facts overcame that presumption.

Currency note

This opinion was issued in 1997, before the Utah State Bar's adoption of the 2005 revisions to the Rules of Professional Conduct (the Ethics 2000-based amendments approved by the Utah Supreme Court on September 29, 2005). 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 Treat this page as historical context, not current guidance.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: Does an attorney-client relationship form over a single phone call with no fee?

A: Yes. The opinion concluded that an attorney-client relationship arises when a party seeks and receives a lawyer's advice, and can form from a brief informal conversation by telephone even though no fee is discussed or charged and no contract is signed.

Q: Can a lawyer give police a client's phone number to help arrest him?

A: No. The opinion held the client's information was confidential under Rule 1.6 and that the lawyer was ethically barred from revealing it even to assist in apprehending a fugitive, because none of Rule 1.6's exceptions applied.

Q: Does refusing to share the number make the lawyer complicit in the client's flight?

A: No. The opinion stated that a lawyer may not assist criminal or fraudulent conduct under Rule 1.2, but not revealing a phone number a client gave in the course of representation does not assist the client in any criminal or fraudulent conduct.

Background and rules framework

The opinion interpreted Utah Rule of Professional Conduct 1.6 (confidentiality of information, Model Rule 1.6), which then provided that a lawyer shall not reveal information relating to representation of a client unless the client consents or a listed exception applies. It also referenced Rule 1.2 (a lawyer may not assist a client in conduct the lawyer knows is criminal or fraudulent, Model Rule 1.2). The analysis turned on the breadth of confidentiality: all information relating to the representation is confidential, even if available elsewhere, and the comment to Rule 1.6 establishes a presumption against another law superseding the rule.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Utah Rule 1.6 (confidentiality of information)
• Model Rule 1.2 / Utah Rule 1.2 (a lawyer shall not assist criminal or fraudulent conduct)

Cases:

• Breuer-Harrison, Inc. v. Combe, 799 P.2d 716 (Utah App. 1990), formation of the attorney-client relationship
• People v. Morley, 725 P.2d 510 (Colo. 1986); Steinback v. Meyer, 412 N.W.2d 917 (Iowa Ct. App. 1987)

See also

• Mich Ethics Op. RI-160: Fugitive Client Duties
• AK Bar Ethics Op. 2011-4: Missing Criminal Client
• Utah Ethics Op. 05-01: Lawyer Subpoenaed to Testify
• Utah Ethics Op. 15-03: No Confidentiality to a Scammer

Source

• Landing page: https://www.utahbar.org/ethics-opinions/1997-02/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/1997-02.pdf

Original opinion text

Reproduced from the official source for research purposes. The two-column PDF has been reassembled into reading order by paragraph; the linked source is authoritative.

Utah Ethics Opinions 1997. 97-02. USB EAOC Opinion No. 97-02 Utah State Bar Ethics Advisory Opinion Committee

Opinion No. 97-02 Approved January 24, 1997 Issue: Is information provided by an accused to his attorney in an initial telephone conference confidential as against a request from law enforcement authorities for such information? Opinion: Information given to an attorney in an initial telephone conference by an individual whom the attorney has agreed to represent is confidential, even against a request for such information by law enforcement authorities seeking to apprehend the accused client. Facts: After he had learned there was a warrant for his arrest as a suspect for a felony charge, an individual contacted an attorney by telephone. The individual gave information to the attorney, including a telephone number through which he could be contacted. The attorney agreed to represent the client solely to assist the client in turning himself in to the authorities. After the initial telephone conference, the attorney made contact with law enforcement authorities and made arrangements for the client to turn himself in. The client was to contact the attorney again but did not do so. The attorney was unable to make contact with the client to advise him of the arrangements made with the authorities. A law enforcement officer subsequently contacted the attorney and proposed to have the attorney contact the client while the officer was on the telephone line; he also requested the client's telephone number from the attorney. The attorney declined both of the requests, even after the law enforcement officer suggested the attorney could be prosecuted for harboring a fugitive from justice. Analysis: An attorney/client relationship is established when a party seeks and receives the advice of an attorney in matters pertinent to the lawyers' profession. (fn1) An attorney/client relationship can arise from brief informal conversations, in person or by telephone, even though no fee is ever discussed or charged and no contract of employment is signed. In this case, advice and assistance were sought, and the attorney agreed to represent the client. Therefore, an attorney/client relationship was created. The information given to the lawyer and his firm in the course of the representation is confidential. Rule 1.6, Confidentiality of Information, prohibits a lawyer from revealing information relating to representation of a client unless the client consents after consultation. There are permissible exceptions spelled out in Rule 1.6, none of which apply here. (fn2) The fact that the client may be accused of committing a criminal act and the fact that the client may be a fugitive are not relevant to this issue, and the attorney is ethically barred from revealing information relating to the representation of the client, even if revealing the information would assist in apprehending a fugitive. The scope of confidentiality under Rule 1.6 is broad: All information relating to representation of a client is confidential, even if the information is available elsewhere, and it may not be disclosed by the attorney unless it is covered by a specific exception contained in the rule. A lawyer may not assist a client in conduct that is criminal or fraudulent. (fn3) However, not revealing a phone number given by a client to his attorney in the course of representation does not assist the client in any criminal or fraudulent conduct. Rule 1.6(b)(4) does permit a lawyer to reveal such confidential information to the extent the lawyer believes necessary to comply with the Rules of Professional Conduct or other law. The comment to this subsection, however, indicates there is a presumption against concluding that any other provision of law supersedes Rule 1.6. (fn4) There is nothing in the factual situation before us that would supersede Rule 1.6 and permit disclosure of confidential information.

Footnotes

1. E.g.,Breuer-Harrison, Inc. v. Combe , 799 P.2d 716, 727 (Utah App. 1990), citing with approval People v. Morely , 725 P.2d 510, 517 (Colo. 1986) (en banc) and Steinback v. Meyer, 412 N.W.2d 917, 918 (Iowa Ct. App. 1987).

2. A lawyer may reveal such information to the extent the lawyer believes necessary: (1) To prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm, or substantial injury to the financial interest or property of another; (2) To rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used; (3) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client or to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or (4) To comply with the Rules of Professional Conduct or other law. Utah Rules of Professional Conduct 1.6(b). It is noted that none of these exceptions mandate disclosure by the lawyer.

3. Utah Rules of Professional Conduct 1.2. 4."Whether another provision of law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these Rules, but a presumption should exist against a supersession." Id. Rule 1.7 cmt. Rule Cited: 1.6