A client that is seeking to flee the jurisdiction must be advised of the consequences of flight — including being tried, convicted and sentenced in absentia and losing all appellate rights under the fugitive disentitlement doctrine. See In re Ivker, BD-2004-034 (Mass. 2004): “While helping a client concoct perjurious testimony is a direct fraud on the court, counseling a client to flee deprives the court of any ability to adjudicate the charges. Failure to appear is itself a punishable offense, and a client who follows such advice is exposed to considerably increased penalties. See [Massachusetts] G. L. c. 276, § 82A [Failure to appear in court after release on bail or recognizance; penalty]. As such, advising a client to flee seriously undermines the administration of justice, and places the client at considerable risk.”
See also In re Axel, 757 S.W.2d 369, 373 (Tex. Cr. App. 1988) (“for an unknowing defendant to learn of his appellate rights someone must advise him of them”); see also Koons v. State, 771 N.E.2d 685 (Ind. Ct. App. 2002) and Perry v. State 638 N.E.2d 1236, 1239-1240 (Ind.Sup.Crt.1994) (both court’s explaining that it is ineffective assistance under Strickland to advise a client to flee).
It can hardly be disputed that flight from the jurisdiction at the insistence of one’s attorney is distinct from flight based upon a defendant’s own idea of absenting himself from a jurisdiction. Indeed, the duress that led to the flight, done for financial gain, was itself a criminal act.
In In re Young (1989) 49 Cal.3d 257, a defense attorney was given a four year suspension for arranging bail for a defendant who had given a false name to the police at the time of his arrest. (He gave a false name because he was wanted on a robbery case where the victim had died.) The attorney had been arrested and convicted for violating Penal Code section 32, an accessory to a felony in helping the defendant avoid felony arrest. In rejecting the attorney’s arguments against discipline, the court stated:
… petitioner violated his oath and duties as an attorney under sections 6068 and 6103 when he arranged bail for his client under a false name. An attorney’s duty to maintain his client’s confidences does not extend to affirmative acts which further a client’s unlawful conduct. While petitioner admittedly had no duty to disclose that his client gave the arresting officer a false name, he had a duty not to further his client’s unlawful conduct by arranging bail for him under a false name. Petitioner’s actions misled the bail bondsman and the officers of the court responsible for bail and allowed a fugitive wanted for a violent felony to evade prosecution. We conclude that there is sufficient evidence that petitioner acted dishonestly, and that his misconduct constituted a fraud on the court. (Id. at 265.)
In the Matter of DeMassa (Rev. Dept. 1991) 1 Cal. State Bar Ct. Rptr. 737, the Bar court held that the attorney, although affirmatively obligated by his duty to his client to conceal knowledge of the client’s whereabouts, crossed the line from “zealous protector of client confidences” when he allowed the client, then a fugitive, to stay at his house.
In the hypothetical problem, the defense attorney should have advised his client to appear in court as soon as possible. To acquiesce in a client’s desires to remain a fugitive would violate DR 1-102(A)(4)(5) and could result in 25 disciplinary action.
If contacted by the client and advised that he no longer intends to appear in court, it would be advisable to tell him that such a communication may not be deemed protected by the attorney-client privilege because it is a statement of intent to commit a future crime and that at some later date a court can force it to be revealed. Charles Sevilla http://charlessevilla.com/_pdf/CPDA.ETHICS.pdf