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Advisory Opinion 17

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State Disciplinary Board
Advisory Opinion No. 17
January 18, 1974

Duty of an Attorney Representing a Fugitive Upon Warrants for Probation Violation

Pursuant to the provisions of Rule 4-217 of the Rules and Regulations for Organization and Government of the State Bar of Georgia, this State Disciplinary Board, upon request made therefor, renders this its opinion concerning a proper interpretation of the code of Professional Responsibility of the State Bar of Georgia as applied to a given state of facts.

An advisory opinion has been requested as to the ethical duty of an attorney who, during a professional consultation, learns that his client is a fugitive upon warrants for violation of his probation. The request was made in two parts,as follows:

"When a person who is a fugitive upon warrants for probation violation approaches an attorney and requests that the attorney represent him in any hearings concerning his violation of probation and when the fugitive thus discloses his violations and whereabouts, must the attorney disclose the whereabouts of his client to the proper authorities? If the attorney advises the fugitive to surrender to the authorities and the fugitive refuses to do so, what is the proper course of action of the attorney?"

The ethical rules presently applicable to this inquiry are Rule 3-102 (Canon 2); EC 2-32, and DR 2-110(C)(1)(b) are included in that Rule; Rule 3-104(Canon 4); EC 4-1, EC 4-4, DR 4-101(A), DR 4-101(B)(1) and DR 4-101(C)(2) and (3) are all included in that Rule; and Rule 3-107 (Canon 7); EC 7-1, EC 7-5 and DR 7-102(A)(3), (7)and (8) are included under that Rule.

Canon II provides "A lawyer should assist in maintaining the integrity and competence of the legal profession. Ethical considerations under Canon II which are relevant to the question propounded are:

EC 2-32 A decision by a lawyer to withdraw should be made only on the basis of compelling circumstances... A lawyer should not withdraw without considering carefully and endeavoring to minimize the possible adverse effect on the rights of his client and the possibility of prejudice to his client as the result of his withdrawal. Even though he justifiably withdraws a lawyer should protect the welfare of his client by giving due notice of his withdrawal, suggesting employment of other counsel, delivering to the client all papers and property to which the client is entitled, cooperating with counsel subsequently employed, and otherwise endeavoring to minimize the possibility of harm...

DR 2-110(C) states, in part, as follows:

(C) Permissive withdrawal. If DR 2-110(B) is not applicable, a lawyer may not request permission to withdraw in matters pending before a Tribunal, and may not withdraw in other matters, unless such request or such withdrawals is because:

(1) His client

(a) ...
(b) personally seeks to pursue an illegal course of conduct

Canon IV provides "A lawyer should preserve the confidences and secrets of a client." Relevant ethical considerations under this Canon are:

EC 4-1 Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him. A client must feel free to discuss whatever he wishes with his lawyer and a lawyer must be equally free to obtain information beyond that volunteered by his client. A lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client but also encourages laymen to seek early legal assistance.

EC 4-4 The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of his client. This ethical precept unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge. A lawyer should endeavor to act in a manner which preserves the evidentiary privilege; for example, he should avoid professional discussions in the presence of persons to whom the privilege does not extend. A lawyer owes an obligation to advise the client of the attorney-client privilege and timely assert the privilege unless it is waived by the client.

DR 4-101 states, in part, as follows:

DR 4-101 Preservation of Confidence and Secrets of a client

(A) "Confidence" refers to information protected by the attorney-client privilege under applicable law and "Secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

(B) Except when permitted under DR 4-101(C) a lawyer shall not knowingly

(1) reveal a confidence or secret of his client
(2) ...

(C) A lawyer may reveal:

(1) ...
(2) confidences or secrets when permitted under Disciplinary Rules or required by law or court order;
(3) the intention of his client to commit a crime and the information necessary to prevent the crime;

Canon VII provides "A lawyer should represent his client zealously within the bounds of the law."

EC 7-1 The duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law, which includes Disciplinary Rules and enforceable professional regulations. The professional responsibility of a lawyer derives from his membership in a profession which has the duty of assisting members of the public to secure and protect available legal rights and benefits. In our government of laws and not of men, each member of our society is entitled to have his conduct judged and regulated in accordance with the law, to seek any lawful objective through legally permissible means, and to present for adjudication any lawful claim, issue or defense.

EC 7-5 A lawyer as adviser furthers the interest of his client by giving his professional opinion as to what he believes would likely be the ultimate decision of the courts on the matter at hand and by informing his client of the practical effect of such decision. He may continue in the representation of his client even though his client has elected to pursue a course of conduct contrary to the advice of the lawyer so long as he does not thereby knowingly assist the client to engage in illegal conduct or take a frivolous legal position. A lawyer should never encourage or aid his client to commit criminal acts or counsel his client on how to violate the law and avoid punishment therefor.

DR 7-102(A) states, in part, as follows:

(A) In his representation of a client, a lawyer shall not

(1) ...
(2) ...
(3) conceal or knowingly fail to disclose that which he is required by law to reveal;...
(7) counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent
(8) knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.

In this problem the attorney's duty of loyalty to his client and his duty to the legal system, of which he is an important part, come into direct conflict. The State Disciplinary Board has been asked to resolve this conflict and the applicable rules and advisory opinions of Georgia and of the American Bar Association reflect his conflict as they, too, are in conflict.

Although A.B.A. Formal Opinions 155 and 156 advise of the duty of the attorney to reveal the whereabouts of his fugitive client, the State Disciplinary Board believes that there is no legal or ethical consistency in the rationale of those opinions which would require an attorney whose client is a fugitive from a misdemeanor conviction to notify the authorities while allowing the attorney of a murderer to keep the confession of the murderer secret and confidential.

The language of Canon IV is strong and clear, and the importance of the confidentiality between attorney and client in their communications is paramount in our system of justice. EC 4-1, EC 4-4. The exceptions as to revelation of secrets and confidences mentioned in DR 4-101(C), above, would not seem to apply in this situation since the information about the fugitive's whereabouts is privileged in Georgia and the attorney's failure to report the fugitive would not, by itself, be a crime. Of course, the attorney has a duty to report any non-privileged information he knows to the proper authorities, and DR 7-102(A)(7), and (8) indicate clearly that he cannot counsel the client to break the law nor may he take any overt action to aid the fugitive in his flight.

In light of the historical importance of the concepts embodied in Canon IV to individuals in our society, the State Disciplinary Board has determined that the attorney of a fugitive has no ethical duty to inform the authorities of the whereabouts of the fugitive. However, once that difficult determination is made, it must be quickly pointed that in the stated situation there is a countervailing duty to our system of law which dictates that the attorney cannot counsel the fugitive to remain in violation of the law. The attorney should, therefore, advise the client to surrender to the authorities at an early date so that the charges against the fugitive may be heard in a fair hearing. By taking such a course of action the attorney observes the spirit of the confidentiality rule while demonstrating the confidence in, and loyalty to, our system of law.

The second part of the inquiry asks what should be done if the client refuses the attorney's advice to surrender to the authorities. The ethical considerations and rules under Canon II, stated above, clearly show that in a situation in which a fugitive client refuses to surrender himself, and thus insists on an illegal course of conduct, the attorney should immediately withdraw from the case, taking the precautions he deems necessary to protect his client's interests.

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