In 28 years as a criminal defense attorney, Seth Kirschenbaum has become familiar with clandestine phone calls from suspects in undisclosed locations who know the police are hot on their trails.
“I’ve been contacted and hired by people who are fugitives. Usually, they’re calling from a phone booth in some city to see if I can negotiate a deal and their return,” he said this week, while discussing a recent murder case in Sandy Springs in which the suspect has disappeared.
Kirschenbaum never tells police where his client is hiding.
Some people may grapple with whether withholding a suspect’s whereabouts is the right thing to do, but forcing lawyers to disclose that information is bad public policy, said Kirschenbaum, a partner at Davis, Zipperman, Kirschenbaum & Lotito.
“I don’t think morality enters into it, because if you force lawyers to disclose privileged information, assuming that information was gained through privileged communication, it would undermine the attorney-client privilege and create a chilling effect on people candidly sharing secrets with lawyers,” he said.
Sandy Springs police are seeking the whereabouts of 27-year-old Caris Ayala, whom they suspect of killing a 5-month-old boy she was baby-sitting last month, according to information on the department’s website. The police department says it secured a warrant for her arrest on a murder charge but fears she has fled the area, possibly to Mexico, Guatemala or El Salvador. Police also are searching for her husband, Noe Castillo-Ramirez, who is wanted for hindering the apprehension of a felon.
The Atlanta Journal-Constitution reported last week that Ayala gave an initial statement to detectives but then said she would need an attorney if they wanted to question her further. Sandy Springs police spokesman Capt. Steve Rose told the AJC that an attorney contacted detectives and arranged for Ayala to be re-interviewed, but Ayala failed to show at her attorney’s office on the day of the interview.
When asked by the Daily Report, Rose would not identify Ayala’s attorney nor comment on the attorney’s involvement. He allowed that Ayala and her husband disappeared on the same day the police department obtained a warrant for Ayala’s arrest.
Kirschenbaum and two other criminal defense lawyers contacted by the Daily Report said when a suspect hires a lawyer, the attorney should create a buffer between the client and the investigators and prosecutors by acting as a liaison and speaking for the client. The attorney does not share information about a client’s whereabouts with investigators and prosecutors, they said.
In most cases, the lawyer “probably doesn’t know the whereabouts any more than the police do,” Kirschenbaum said. “But if a lawyer does know, that’s privileged information, and I would be loathe to tell police that.”
Steven Sadow, special counsel for high-profile criminal defense at Schulten Ward & Turner, echoed Kirschenbaum. As long as an attorney did not facilitate a suspect’s flight from the law—which could lead to obstruction or hindrance charges—the attorney has no obligation to provide information to law enforcement regarding the client’s whereabouts, he said.
“The ethical responsibility of an attorney under the circumstances here is to essentially say nothing because it could violate the attorney-client privilege,” said Sadow. “Privilege, as a legal matter, has a higher calling than duty to the public at large.”
If an attorney knows there is a warrant for the client’s arrest, the attorney has an obligation to tell the client and to advise the client to turn himself in, said Sandra Michaels, a Georgia Association of Criminal Defense Lawyers lobbyist and practicing defense attorney. But sharing information with police, she said, is a “big no-no.”
“If the client wishes to turn himself in, the attorney would contact the law enforcement or prosecuting agency, if it’s gone that far, and ideally would make all the arrangements of what the bond would be before,” said Michaels.
If a client is merely under suspicion but not charged, then leaving the jurisdiction—even though it may frustrate the investigation—is not a crime.
“If they are only being investigated and there is no warrant for their arrest, then like everybody, they have the freedom of movement,” Kirschenbaum said. “They’re not violating any law by not showing up at a voluntary interview.
“My usual statement to a client in that type of scenario is, ‘I can’t give you advice as what to do or not regarding your physical whereabouts,’” he added.
A 1974 State Disciplinary Board advisory opinion posted on the State Bar of Georgia’s website addresses an attorney’s obligations if her client is a fugitive, wanted on an outstanding warrant. Advisory Opinion 17 specifically dealt with a scenario in which a client is wanted for probation violation, but it says an attorney is not obligated to reveal the client’s whereabouts. It adds that if the client refuses to surrender to authorities, the lawyer should withdraw from representation.
“Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him,” the advisory opinion states, citing Ethical Consideration 4-1 under Canon IV. “A client must feel free to discuss whatever he wishes with his lawyer and a lawyer must be equally free to obtain information beyond that volunteered by his client. … The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client but also encourages laymen to seek early legal assistance.”
The advisory opinion further states that a lawyer should advise the client as to what the lawyer believes would be the legal consequences of maintaining a fugitive status. In the event the client refuses the attorney’s advice to surrender, the lawyer should “immediately withdraw from the case, taking the precautions he deems necessary to protect his client’s interests.”