The Florida Bar
OPINION 90-1A criminal defense counsel who learns that his or her client has left the state for the purpose of avoiding a court appearance may not, under most circumstances, divulge such information until required by the court at the time of the scheduled appearance.
(July 15, 1990)
(July 15, 1990)
Statute: F.S. §843.15
When an attorney tells the court his or her client has left the state with the intent to jump bail, it puts attorney and client at cross-purposes; it makes the attorney a potential witness against the client in a potential criminal prosecution for the separate crime of bail jumping; and it effectively destroys the attorney-client relationship.
Avoiding interference with, or at least preserving, the Constitutionally created and Constitutionally protected attorney-client relationship is fundamental to a correct interpretation of what is, in this situation, ethical conduct.
For an attorney, based on anything less than verified and certain facts, to tell the court a client is out of state for purpose of avoiding a court appearance, would violate the attorney's obligation to give that client zealous representation, would destroy the attorney-client relationship, and would be unethical.
The crime of jumping bail is defined by Florida Statutes, Section 843.15, which says the crime occurs when a defendant in a criminal case is on release pre-trial, or pending sentencing, or pending appeal, and the defendant "willfully fails to appear before any court or judicial officer as required...." The crime occurs when the defendant is required to be before the court and, willfully, fails to be there. By statutory definition, the offense occurs when the defendant fails to appear in court as required-not before then. So a distinction must be made as to counsel's ethical obligations at the time of the required court appearance, and counsel's ethical obligations prior to the required court appearance.
At the time of the required court appearance, when the case is called and the defendant fails to appear, and the judge turns to counsel and asks about the defendant's whereabouts, defense counsel owes an explanation to the court, to the extent counsel has one, and to the extent that giving it does not violate attorney-client privilege. If the attorney is able to tell the court where the client is, and why the client is there rather than in court, then the attorney is obliged to tell the court those things-but only to the extent that the lawyer can give up that information without violating attorney-client confidentiality. Barring other facts not present here, an attorney's actual knowledge of where a client is located, at the present moment, is not privileged information.
The following appears to be the proper way to handle it. Counsel may give the court such answers as counsel has, to the extent is does not violate confidential communications between attorney and client, and if that information is all the attorney has, then it is an easy matter to tell the court counsel has no further information, privileged or otherwise. But if some of the information counsel has is privileged, counsel may tell the court what information counsel has that is not privileged, and then advise the court that counsel does have additional information but believes it privileged and so invokes that privilege on the client's behalf- leaving it up to the court to make such further inquiry and such rulings on the extent of the privilege as it deems necessary.
Turning now to the question of counsel's ethical obligations prior to that required court appearance: What is criminal defense counsel's obligation when counsel first learns, in advance of the next scheduled court appearance, that the client has fled the state already, with intent to avoid future court appearances in the case?
On some subjects-and this is one-ethics opinions are of little real guidance to practicing attorneys unless they take into account the realities of how clients deal with lawyers and lawyers with clients. Drawing on the experiences of lawyers on the Professional Ethics Committee who now handle and/or have handled criminal defense cases, the following practical observation is made. 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, in 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 urgings 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 ob tained 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.
Adding to the balance the Constitutionally created and protected attorney-client relationship, and the practicalities of how attorneys and clients deal with each other, and the Rules Regulating the Florida Bar, the following appears to be the proper response to this part of the inquiry.
So long as there remains any possibility that counsel may be able to effect a court appearance by a client, in spite of the client's claims and anybody else's claims that the client will not be going to court when required, experience teaches and ethics requires that effectuating the client's appearance is what counsel must spend his or her energies trying to accomplish. Working towards resolving the anticipated problem by effectuating the client's appearance, rather than telling the court about the anticipated problem, is what is ethically required of the lawyer.
Prior to the date of the required court appearance, only when it reaches the point where counsel knows with reasonable certainty that the client's avoidance of the court's authority is a willful and, for all practical purposes, an irreversible fact-only then would counsel be ethically obliged to step forward and advise the Court of the situation.
As to the question of counsel's ethical obligation to advise the bail bondsman, no such obligation is imposed by the Rules Regulating the Florida Bar. As a practical matter, however, if there is a bail bondsman on the case, to accomplish the client's appearance in court it may be necessary to consider calling on the client's bail bondsman for assistance.
A situation similar to the one inquired about, but which should not be confused with it, is where the court makes it a special condition of bond that the defendant not leave the state. That special condition of pre-trial release make the mere act of leaving the state a completed violation of bond, whether or not the defendant intends to return in time for his or her next court appearance. If that special condition is imposed, then a criminal defense lawyer is under obligation to report a client is out of state, when counsel is certain the client is, in fact, out of state in violation of that special condition, at the time of reporting. If, instead, the client advises counsel of this violation after it is completed-after leaving the state in violation of bond and returning again-then what the client tells counsel is privileged attorney-client communication about past acts, which the attorney may not reveal.
The question posed and answer given also have nothing to do with any obligation a court specifically imposes on defense counsel as a special condition of a client's release on bond-as, for example, when the court makes it a special condition that the defendant telephone his attorney once each day and that counsel immediately advise the court if the defendant fails to comply. (Such conditions are sometimes sought by defendants and their attorneys, to avoid having to report instead to probation officers or court officials as a condition of bond.)