What may a Wisconsin lawyer do when a client has become a fugitive, and must the lawyer disclose the client's location?

Plain-English summary

Opinion EF-21-03 (October 21, 2021) addresses a lawyer's duties when a client becomes a fugitive (for example, by missing a court date, escaping custody, or absconding from supervision) and contacts the lawyer for advice, and it withdraws Memorandum Opinion 8/76B. The committee first describes the duty to consult: under SCRs 20:1.4, 20:1.2, and 20:2.1, the lawyer must explain the client's full exposure and review the client's options, both lawful and unlawful, with their likely consequences. The lawyer may discuss a criminal or fraudulent option but may not recommend or assist it under SCR 20:1.2(d), and the committee notes Wisconsin imposes no affirmative duty on the lawyer to urge the client to surrender, though doing so is often prudent.

On assisting the client, the committee concludes the lawyer may not help the client evade apprehension where the underlying conduct is a continuing offense (escape is a continuing crime in Wisconsin; bail jumping is unsettled). Merely meeting with, speaking to, or knowing the client's plans is not prohibited assistance, but actively aiding flight or hiding the client is. On disclosure, the committee reads SCR 20:1.6 to neither require nor permit a Wisconsin lawyer to reveal a fugitive client's location or contact information absent consent or a court order: the mandatory-disclosure trigger in SCR 20:1.6(b) (preventing death, substantial bodily harm, or substantial financial injury) is not met by a failure to appear, and none of the discretionary exceptions in SCR 20:1.6(c) apply except possibly compliance with a court order. If a judge asks why the client is absent, the lawyer may not lie but is not required to reveal the client's whereabouts, and confidentiality generally bars doing so.

The committee then turns to the evidentiary privilege. If the client merely asked about consequences or options, the communication is privileged; if the client sought help in evading apprehension, the crime-fraud exception may apply because it looks to the client's intent, so the lawyer should assert the privilege and require a court ruling. Finally, on withdrawal, the committee explains that withdrawal is mandatory under SCR 20:1.16(a)(1) if continued representation would violate the rules or if lost contact makes competent representation impossible, and otherwise is discretionary under SCR 20:1.16(b) (for example, where the client's conduct is repugnant or has made the representation unreasonably difficult), subject to protecting client information when seeking the court's leave.

In practice

Under this opinion, conduct matching its fact pattern is treated as follows. A Wisconsin lawyer whose client has become a fugitive must consult with the client about options and consequences and may discuss but not assist criminal conduct such as evading arrest. The committee concludes the lawyer neither must nor may disclose the client's location absent consent or a court order, may not lie to a tribunal about the client's absence, and should assert the attorney-client privilege and require a ruling if ordered to reveal client information. The committee concludes the lawyer may withdraw, and may be required to withdraw if contact is lost or continued representation would violate the rules.

Common questions

Q: Must a lawyer tell the court or police where a fugitive client is?

A: No. The committee concludes SCR 20:1.6 neither requires nor permits disclosure of a fugitive client's location or contact information absent the client's consent or a court order.

Q: Can a lawyer advise a client who is thinking about not surrendering?

A: Yes, within limits. The committee concludes the lawyer must explain the client's options and consequences and may discuss an unlawful option, but may not counsel or assist criminal conduct under SCR 20:1.2(d).

Q: Must the lawyer urge the client to surrender?

A: No. The committee concludes Wisconsin imposes no affirmative duty to urge surrender, though it is often prudent to advise strongly against an unlawful course.

Q: What if the judge asks why the client did not appear?

A: The lawyer may not lie but need not disclose. The committee concludes the lawyer may not make a false statement, but is not obligated to reveal the client's whereabouts and is generally barred by SCR 20:1.6 from doing so.

Q: Can the lawyer withdraw from representing a fugitive client?

A: Yes, and sometimes must. The committee concludes withdrawal is discretionary in most cases under SCR 20:1.16(b) and mandatory under SCR 20:1.16(a)(1) where continued representation would violate the rules or lost contact makes it impossible.

Background and rules framework

The opinion interprets SCR 20:1.6 / Model Rule 1.6 (confidentiality, including the mandatory disclosure in 20:1.6(b) and discretionary exceptions in 20:1.6(c)), SCR 20:1.2(d) / Model Rule 1.2 (no assisting client crime or fraud), SCRs 20:1.4 and 20:2.1 (communication and candid advice), SCR 20:1.16 / Model Rule 1.16 (mandatory and permissive withdrawal), SCR 20:3.3 / Model Rule 3.3 (candor and remedial duties), and SCR 20:8.4(b) (criminal acts). It also discusses the Wisconsin attorney-client privilege and its crime-fraud exception under Wis. Stat. section 905.03.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:1.6 / Model Rule 1.6 (confidentiality; disclosure exceptions)
• Wis. SCR 20:1.2(d) / Model Rule 1.2 (no counseling or assisting client crime or fraud)
• Wis. SCR 20:1.4, 20:2.1 / Model Rules 1.4, 2.1 (communication; candid advice)
• Wis. SCR 20:1.16 / Model Rule 1.16 (mandatory and permissive withdrawal)
• Wis. SCR 20:3.3, 20:8.4(b) / Model Rules 3.3, 8.4(b) (candor; criminal acts)

Statutes:

• Wis. Stat. § 905.03 (attorney-client privilege; crime-fraud exception)
• Wis. Stat. §§ 946.42, 946.49, 946.47 (escape; bail jumping; harboring)

Cases:

• In re Nackson, 555 A.2d 1101 (N.J. 1989), no disclosure required of a fugitive client's whereabouts
• Commonwealth v. Maguigan, 511 A.2d 1327 (Pa. 1986), lawyer ordered to reveal a fugitive client's whereabouts

See also

• DC Ethics Op. 234: Defense Counsel's Duties When a Client Insists on Testifying Falsely
• WI Ethics Op. EF-25-03: Representing a Criminal Defendant with Diminished Capacity
• WI Ethics Op. EF-23-01: Responding to Online Criticism

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/EF-21-03%20Fugitive%20Client-FINAL.pdf