Lawyers cannot assist in any way someone 
avoiding a warrant.

I am an assistant district attorney and there is a criminal defendant who has been a fugitive. I called to try to locate the fugitive and he answered the phone. He refused to state where he was. Shortly afterward, I received a contact from the public defender’s office indicating that I was not to talk to the defendant. Did the public defender’s office do something wrong, and did I do something wrong?

In the question, the assistant district attorney did nothing wrong. As part of his job, he was trying to locate the fugitive, and, through inadvertence, he actually spoke to the fugitive on one of the numbers he called. It is the job of the assistant district attorney and the police and detective who work with him to find a fugitive criminal defendant. This is not a situation where the lawyer was attempting to talk to someone already represented. This was a situation where the defendant was a fugitive.

But what is concerning is the public defender’s role here. Clearly, the client and the public defender are having conversations. What is particularly worrisome is the conduct of the public defender’s office in telephoning the assistant district attorney and telling him or her not to have any contact with their client. This strongly suggests that the public defender’s office is having regular communication and perhaps aiding and assisting the person in being a fugitive.

If that is the case, that places the public defender’s office in a very precarious situation. If the fugitive is ever apprehended and presents evidence or testimony that the public defender aided him in his fugitive status, that could cause major problems for the law license of that assistant public defender or the public defender’s office.

It goes without question a lawyer cannot aid a fugitive. To do so could potentially violate criminal statutes. Aiding a fugitive involves any form of assistance.

For instance, acting as a message center for a fugitive client and his or her family would be considered aiding and abetting. Allowing money from the family to be given to the lawyer to forward to the fugitive would be serious misconduct. If the lawyer was also handling a personal injury suit for the fugitive and settled the case, the lawyer could not give the fugitive that money until the fugitive has been apprehended and worked out the fugitive status. To give a fugitive money from a settlement, even though he or she is entitled to receive it at some point, would be aiding and abetting that person in continuing his or her fugitive ways.

Therefore, a lawyer has to be very careful. There is nothing wrong with a lawyer attempting to contact his or her fugitive client and sending letters and suggesting the client cooperate and turn him or herself in. But anything else can put the lawyer in jeopardy.

The Rule of Professional Conduct that would be at issue would be Rule 8.4(d). That rule precludes a lawyer from engaging in conduct that is prejudicial to the administration of justice. Obviously, aiding a fugitive to maintain fugitive status is conduct prejudicial to the administration of justice. There could also be violations of Rule 8.4(c) involving deceit, fraud or misrepresentation depending on what the lawyer does and states.

The Pennsylvania Supreme Court has held that the address and location of a fugitive does not fall within the attorney-client privilege. That was a rather famous decision in the 1980s. Therefore, the lawyer could be compelled to provide that address because it is not privileged information. The rationale of the Pennsylvania Supreme Court at the time was that because the client had the obligation to notify either the bail agency or probation office of his or her address, that information could not be confidential. In that case, the lawyer was held in contempt and ultimately had to reveal the information once the Supreme Court entered its decision in Commonwealth v. Maguigan, 511 A.2d 1327 (Pa. 1986).

In conclusion, the question raises some troubling concerns. Zealousness in representing a criminal defendant does not extend to aiding, even indirectly, a criminal defendant in illegal or improper conduct. Every lawyer must recognize the limitations of their roles. It becomes a very dangerous thing for a criminal defense lawyer to assist in any way someone who is avoiding a fugitive warrant.

A lawyer can represent a client in 
third-party matters.

Can a lawyer prepare a deed or a will or a power of attorney at the request of a third person, not the testator or grantor or grantee or person who is giving the power of attorney?

In the practice of law, it is always important to recognize who is the client. Although that is usually obvious, sometimes it’s not. That is often seen when someone is representing a juvenile defendant and the parents are paying or representing an insured with the insurance company paying. Sometimes it gets confusing then as to who is one’s client.

But if an individual calls and wants a will drafted for his or her mother or father, the lawyer can draft a will for the individual who called. Even though it is not that individual’s will, it is the parent’s, or brother’s or sister’s. If the lawyer is representing the person who is asking for the will to be drawn, the lawyer can do so.

Obviously, if the lawyer knew there were some sort of fraud going on, i.e., if the person were incompetent and someone were going to take advantage of them, that is a different story. But if a lawyer is asked to do something by a client, the lawyer can do so if he or she accepts the case and is paid the quoted fee.

There is no obligation to the third party for which the document is being drafted if the lawyer doesn’t represent that third party. Obviously, if the lawyer represented the third party and drafted the will, the lawyer should meet with the third party and make sure they understand what they are doing. But if the lawyer is representing a beneficiary or brother or sister or uncle or aunt, etc., the lawyer can prepare a document for that person. That is why it is important to define who one represents.

This is a particularly interesting issue because the Office of Disciplinary Counsel has recently taken the position in informal correspondence that this type of representation is improper. But that is not a correct statement, at least in the opinion of this particular writer. It all depends whom one is representing.

If the third party says, "Will you represent my mother?" and then tells the lawyer what to put in the will or power of attorney, of course the lawyer then has an obligation to the mother and must meet with her. But if the third party asks just for a will or a power of attorney that he or she may want to use or present to his or her spouse or relative, the lawyer can do that. The lawyer is not under any obligation to the person who is named in the particular document if the lawyer has not been hired by that person. Again, the caveat is that is assuming the lawyer knows there will be no misconduct going on.

The practice of law is getting more difficult, but it is still rather simple. The lawyer can do things for a client as long as they are not dishonest or against the law. The fact that drafting something doesn’t apply directly to the client does not mean the lawyer can’t do it for the client.

Any lawyer who does such a thing would obviously put in the cover letter to the client that this is drafted at their request pursuant to what they asked for. But the lawyer would also clearly note in the letter that he or she does not represent the person for which the will was drafted and the lawyer has no obligation to that person. A lawyer would put in the letter if the person for whom the lawyer drafted a document wishes the lawyer to represent that person, then the lawyer would have to meet with the person and review the document with them and make any changes they requested.

But the practice of law has not become so regulated that a lawyer can’t draft a document for a client, even if it is not directly for that particular client. The lawyer is not supposed to be someone who can foresee all future conduct and misconduct. A lawyer can represent a client and be paid for doing so even though the material may not relate directly to the client, as long as the lawyer has no obligation or fiduciary duty to the third person. •

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.