ETHICS OPINION 462-1958 CONFIDENTIAL COMMUNICATIONS

NUMBER 462

QUESTION.

 

A defendant in a criminal case pending in this jurisdiction was represented by an attorney of the State of New Jersey. Although the New York attorney knew the defendant and some members of his family, he had never previously represented him. He also knew the New Jersey attorney.

 

Both the defendant and his New Jersey attorney desired that the New York attorney become co-counsel and assist in the preparation and defense of the case. He agreed and filed a notice of appearance with the Clerk of the court as co-counsel. This occurred on September 15, 1955. He had conferences with the defendant and his New Jersey attorney. His case was adjourned to the trial calendar for September 28, 1955. The defendant defaulted in appearance on that day. His bail in a very substantial amount was thereupon forfeited and a bench warrant for his apprehension issued.

 

Sometime later, an investigative officer came to see the New York attorney and made inquiries as to when he had last seen or spoken to the defendant. The whereabouts of the defendant were wholly unknown to the attorney since the time he had last seen him was a week or so prior to his default on September 28, 1955.

 

Recently the New York attorney has received a letter from the defendant. In this letter he makes inquiry about a legal problem which he believes affects his case. He asks the attorney to keep the letter confidential.

 

The attorney’s queries are as follows. What are his duties vis a vis the defendant and the law enforcement agency which is undoubtedly seeking to execute the warrant for his arrest? Is he obliged under the requirements of professional ethics, to disclose the defendant’s present whereabouts? Is the information as to the defendant’s present address obtained from a letter which he requests be treated confidentially and from the envelope in which it was mailed, in the nature of a privileged communication?

 

ANSWER.

 

The attorney’s obligations in the circumstances set forth are as follows:

 

1. He should notify the defendant that he cannot represent him so long as he remains a fugitive. He should further urge him to surrender to the proper authorities.

 

2. He should not voluntarily seek out the public authorities and inform them of the address of the defendant.

 

3. If a police officer, investigator, or prosecutor should approach the attorney for the address of the defendant, he should refrain from furnishing this information, which has been vouchsafed to him by a client who requested that it be kept confidential. As this committee wrote in an opinion on a similar question (Opinion No. 70, Committee on Professional Ethics, New York County Lawyers’ Association):

 

“In the opinion of the Committee it would be improper for the lawyer to disclose the information; his obligation to his clients, imposed by our law in the interest of the supposedly proper and satisfactory administration of justice, a rule which is binding upon the lawyer, precludes him from making the disclosure to anyone without his client’s express consent.”

 

(See, also, Opinions 97, 196, 350, Committee on Professional Ethics, Association of the Bar of the City of New York; Opinions 217, 353, this Committee).

 

If the lawyer is brought before a competent legal tribunal, pursuant to proper process duly served on him, and if he is then ordered by such court to reveal the information, after he has interposed the claim of a privileged communication made to him by a client in confidence and such claim has been overruled by the court he may then properly answer.

 

Dated: April 9, 1958.