Opinion 91-23

You have asked the committee for an opinion as to your ethical obligations under the following circumstances:

You represent a client in both a civil and a criminal matter. You have delayed listing the civil matter for trial due to the fact that the client is a fugitive in the criminal matter. The client's father has now requested that you list the civil matter and has advised that the client will appear as required. You are concerned about (1) whether you can list the civil matter for trial knowing that, if it is called, you will be representing a fugitive and (2) whether, if the client appears for trial, you would be obligated to turn him over to the authorities.

There is a consensus among the committee that disclosure of your client's whereabouts when and if learned by you and if directed by the court is required. See Commonwealth v. Maguigan, 511 A.2d 1327 (Pa. 1986), holding that an attorney may be compelled by the court to disclose her fugitive client's whereabouts.

However, the issues of whether voluntary disclosure or withdrawal from representation in the civil matter are much more difficult. While there was disagreement about whether either action is required by you, nevertheless the committee was in agreement that your failure to do either or both could subject you to discipline for the following reasons:

Rule 3.3(a)(2) of the Rules of Professional Conduct provides that a lawyer shall not knowingly fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting in a criminal or fraudulent act by the client.

Rule 3.3(b) provides that such duty applies even if it requires disclosure of information which would otherwise be protected by Rule l.6 concerning confidentiality of information.

Whether your client's flight is a crime is a legal question beyond the committee's charge; however, in this regard, you may wish to refer to 18 Pa. C.S. ยง5124 which provides:

(a) Offense defined. - A person set at liberty by court order, with or without bail, upon condition that he will subsequently appear at a specified time and place, commits a misdemeanor of the second degree if, without lawful excuse, he fails to appear at that time and place. The offense constitutes a felony of the third degree where the required appearance was to answer to a charge of felony, or for disposition of any such charge, and the actor took flight or went into hiding to avoid apprehension, trial or punishment.

At least one court has interpreted Rule 3.3(a)(2) to require voluntary disclosure to the court of facts known to the lawyer suggesting that his client does not intend to appear for his criminal trial. United States v. Del Carpio-Cotrino, No. 89-388CR (S.D. Fla. Mar. 22, 1990). It would appear beyond dispute that, if failure to disclose your client's fugitive status assist him or her in a criminal act, then failure to disclose his or her whereabouts similarly assists him or her in a criminal act.

Thus, Rule 3.3(a)(2) could be interpreted to require you to report his whereabouts when and if learned by you.

Further, both Rule l.2(d) which prohibits you from assisting a client in criminal conduct, and Rule 8.4 (d) which prohibits you from engaging in conduct which is prejudicial to the administration of justice, could be interpreted to require you to move to withdraw as counsel in the civil matter.

In any event, Rule 1.1, requiring that a lawyer provide competent representation to a client, would necessitate that you advise your client of the possible consequences of his request that this matter be listed for trial and/or his appearance thereat. In this regard, the committee suggests that you should use extreme caution in determining that your client's father is authorized to act on his behalf.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.