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OBA Ethics Counsel

Ethics Opinion No. 109

Adopted June 19, 1936

The Board of Governors is in receipt of the following inquiry:

"One M has two criminal cases pending against him in the federal court. He made bond for his appearance, failed to appear when the cases were called and has been a fugitive for several months. The attorney now represents him and admits that he knows where the defendant is living under an assumed name, and such attorney states that he is in touch with the defendant. This attorney refuses to disclose the whereabouts of M the fugitive. Is he justified in so doing?"

Inasmuch as the subject of the inquiry is of nationwide importance, the Board deemed it advisable to obtain the opinion of the standing committee of the American Bar Association on Professional Ethics and Grievances.

That committee has rendered an opinion which is as follows:

"Confidential Communications--An attorney's knowledge of the whereabouts of his client who, having fled the jurisdiction of the court while on bail after indictment, failed to appear for the trial, and who has remained absent from the jurisdiction for several months, living elsewhere under an assumed name, is not a privileged communication.

"Attorney and Client--It is the duty of an attorney to disclose to the proper authorities his information as to the whereabouts of a client who, having fled the jurisdiction of the court while on bail after indictment, failed to appear for trial, and who has remained absent from the jurisdiction for several months, living elsewhere under an assumed name. If the attorney fails to do so, he may be disciplined.

"The defendant in two criminal cases in a federal court gave bail for his appearance at the time set for trial, but failed to appear when the cases were called. While out on bail, he fled the jurisdiction of the court and has lived elsewhere for several months under an assumed name. His attorney knows where he is and has been in communication with him. A member of this Association asks whether the attorney for the fugitive may be disciplined for refusing to disclose his client's whereabouts to the proper authorities.

"It is the duty of an attorney to maintain the confidence and preserve inviolate the secrets of his client, and it is the general rule that when a client gives his address to his attorney while consulting him in a professional capacity on a business matter for the purpose of enabling the attorney to communicate with him in respect thereto, it is a privileged communication. However, there are some circumstances under which such a communication is not privileged for reasons founded on sound public policy. In such cases the attorney may not remain silent.

"When the communication by the client to his attorney is in respect to the future commission of an unlawful act or to a continuing wrong, the communication is not privileged. One who is actually engaged in committing a wrong can have no privileged witness, and public policy forbids that an attorney should assist in the commission thereof, or permit the relation of attorney and client to conceal the wrongdoing.

"A defendant in a criminal case when admitted to bail is not only regarded as in the custody of his bail but he is also in the custody of the law, and admission to bail does not deprive the court of its inherent power to deal with the person of the prisoner. Being in lawful custody, the defendant is guilty of an escape when he gains his liberty before he is delivered in due process of law, and is guilty of a separate offense for which he may be punished. In failing to disclose his client's whereabouts as a fugitive under these circumstances, the attorney would not only be aiding his client to escape trial on the charge for which he was indicted, but would likewise be aiding him in evading prosecution for the additional offense of escape.

"It is the opinion of the Committee that under such circumstances the attorney's knowledge of his client's whereabouts is not privileged, and that he may be disciplined for failing to disclose that information to the proper authorities. Equally, the attorney may be disciplined if, upon his client's refusal to surrender upon his advice, he continues to act as his attorney. If the fugitive persists in so evading a trial upon the charges against him, the attorney should terminate their relations. Failing in this, the attorney is guilty of a violation of his oath and of his duty to society.

"A similar question was considered by the Committee in Opinion 23. What was said in that Opinion, as applied to the facts then before the Committee, is not in conflict with the views here stated".