An attorney asked by a court about the availability of the client for trial must maintain the confidentiality of all information relating to the representation. However, counsel may disclose the intention of a client not to appear only if: (1) the attorney has actual knowledge that the client will not appear; and (2) the act is willful and not the result of mistake or inadvertence. [ERs 1.2, 1.6, 3.3]
A municipal public defender's office requests that the Committee provide an opinion concerning the propriety of responding to a court inquiry of defense counsel about recent contact with a client and whether one's client is anticipated to appear for trial.
The court calls cases for trial throughout the day and assigns them to particular courtrooms. Apparently, the judge who monitors the assignment of cases will often inquire of the court-appointed counsel about the availability of the defendant or whether counsel has had any recent contact with him or her. The court does this to avoid having the case assigned to a courtroom only to result in the issuance of a bench warrant for a defendant when he or she fails to appear at the time of trial. Clients are not generally present throughout the day and only appear after an assignment to a courtroom has been made. Also, it does not appear that the Court conducts trials in absentia on a regular basis.
Some of the court appointed counsel believe that they cannot disclose information concerning their contacts with the client because of the confidentiality provisions of ER 1.6. Other court appointed counsel believe that their duty of candor to the court under ER 3.3 requires disclosure of such information.
Is a criminal defense lawyer required to provide information concerning contacts and whereabouts of the client upon the request of court personnel?
Relevant Ethical Rules
ER 1.2 Scope of Representation
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
ER 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a)(2).
(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.
(c) A lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime.
ER 3.3 Candor toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) except as required by applicable law, fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
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(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by ER 1.6.
The problem of what information a criminal defense lawyer must provide about a client who fails to appear for trial has vexed lawyers and bar committees for many years. For example, the formal opinions of the ABA have vacillated on this issue. In Formal Op. 155, the ABA Committee on Professional Ethics held that a lawyer "must not refuse to disclose" the whereabouts of his client who had jumped bail. Ethics and Grievances, Formal Op. 155, (May 4, 1936). Formal Op. 156 reached the same result in the case of a lawyer whose client had violated the terms of his parole. ABA Comm. on Prof. Ethics and Grievances, Formal Op. 156, (May 4, 1936). Both of these opinions contradicted Formal Op. 23 (1930), which prohibited disclosure in similar circumstances. ABA Comm. on Prof. Ethics and Grievances, Formal Op. 130, (March 15, 1935). Finally, in Formal Op. 84-349, the Committee withdrew both Op. 155 and 156 as "inconsistent" with the Model Rules. ABA Comm. on Ethics and Prof. Responsibility, Formal Op. 84-349, Laws. Man. Supra p. 801-120 (May 7, 1984).
Generally, ER 1.6 (a) prohibits a lawyer from revealing any information "relating to the representation" unless the client consents after consultation. As this Committee has previously stated "ER 1.6 (a) is much broader than the legal attorney client privilege". Az. Op. 92-2 (March 12, 1992) at page 2. "The confidentiality rule applies not merely to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its source." ER 1.6, Comment. Clearly, information obtained concerning the client's whereabouts and the attorneys last contacts with the client are "information relating to the representation" that must be kept confidential. Indeed, the rule of confidentiality is generally thought to prohibit a lawyer from revealing information concerning the whereabouts of his client. See, Geoffrey C. Hazard Jr. & W. William Hodes, The Law of Lawyering at Section 1.6:113 at page 148 (1992). See also, Az. Op. 92-2 (communication from client to lawyer that client is using false name presumptively confidential)
The problem presented here, however, is slightly different. It is not what information a lawyer can be required to disclose concerning a client after failure to appear, but rather what information that lawyer must disclose prior to the appearance. In one jurisdiction that has an exceedingly broad exception to lawyer confidentiality and requires lawyers to volunteer information to prevent a client from committing any crime, the bar ethics committee concluded that lawyers are not required to notify the court "so long as there remains any possibility that counsel may be able to effect a court appearance by a client. . ." See Florida Bar Op. 90-1 Laws. Man on Prof. Conduct (ABA/BNA) p. 901:2509 (July 15, 1990)(emphasis in original). This opinion is based on the practical realities of criminal practice in which defendants often make statements that they will not show up which they really do not mean:
Criminal defendants when talking with their lawyers (in the attorney's office or by telephone, and especially when clients call from out of state or out of the country) often think out loud about skipping out, or come right out and say they plan not to show up for court again; and yet, a great majority of these cases, when the time comes, they do show up for court, in spite of what they have said. One may assume they show up based at least in part on the urging of their lawyers in response to what they said. But, regardless the reasons why they usually show up for court, it is a result that would not be obtained if lawyers, upon hearing clients say they are going to skip future court appearance, were required to immediately tell the court what their clients have just said in that regard. Such conduct by counsel would quickly destroy the attorney-client relationship, and it would be doing so in situations that, in reality, most often do not turn out to be a problem--which would serve the interest of neither the clients nor the administration of justice.
The ethics committee in that jurisdiction only required notice to the court of the situation when the lawyer knows "with reasonable certainty" that the client's avoidance of the court authority is willful and is, "for all practical purposes, an irreversible fact." Id. See also United States v. Del Carpio-Cotrina, 733 F. Supp. 95 S.D. Fla. 1990) (actual knowledge that defendant will fail to appear is required before notification to the court).
In Arizona, ER 1.6 (b) only requires disclosure of confidential information to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm. Neither are likely in this situation. The only consequence of the lawyer's maintenance of confidentiality would be the failure of the client to appear for trial as ordered. ER 1.6 (c) gives a lawyer discretion to reveal the intention of a client to commit such a crime, but does not require it. As the Comment to this section demonstrates, it will be a rare case when the lawyer is sufficiently certain of the client's intention that he or she would reveal it. "It is very difficult for a lawyer to 'know' when such unlawful purpose will actually be carried out, for the client may have a change of mind." ER 1.6, Comment. If there is any possibility that the client would appear for trial, then the lawyer should try to persuade the client to do so rather than revealing confidential information to the court that the client intends not to appear.
Of course, the duty of candor to the tribunal under ER 3.3 also has to be considered. Clearly, counsel are prohibited from making any false statements to the court regarding the availability of the client. More importantly, counsel may not fail to disclose a material fact to the court "when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client." ER 3.3(a)(2). The duties stated in ER 3.3 supersede the duty of confidentiality under ER 1.6.
The most common example of the lawyer's duty to refrain from assisting the client in a criminal act is the client's intention to commit perjury. See Op. 92-2 (March 12, 1992). Maintaining confidentiality of privileged information does not "assist" the client in failing to appear for trial in the same manner that a lawyer elicits perjured testimony from a defendant at trial. Whether the offense of failure to appear in Arizona is a "continuing crime" such that the lawyer's silence alone may assist it is beyond the scope of this opinion. See A.R.S. §§ 13-2506; 13- 2507.
If counsel has actual knowledge that the client will not appear for trial, and the client's failure to appear is willful and not due to mistake or inadvertence, then counsel may be ethically obliged to advise the court of the situation if so questioned. Of course, counsel is always permitted to disclose non-privileged information that may be helpful to the court. Indeed, in this area counsel frequently will report to the court on accidents or illness that may delay a client's appearance. But if other information is protected by the duty of confidentiality, counsel will have to tell the court that any additional information is privileged and let the court make such further inquiry or rulings as the court deems appropriate.
Based on the facts submitted by the inquiring attorney, a lawyer questioned by the court concerning the availability of his or her client for trial must maintain the confidentiality of all "information relating to the representation". Counsel may disclose the intention of the client not to appear, but only if he or she has actual knowledge that the client will do so and the act is willful and not the result of mistake or inadvertence. Counsel would have a duty not to mislead the tribunal concerning the defendant's availability and may be required to notify the court in response to the court's questions if he or she has actual knowledge that the client will fail to appear. Before disclosing privileged information counsel must invoke the privilege.