Washington Lawyer - September 2019 - 41

ASK THE ETHICS EXPERTS

THE JUDGE VS. THE RULES
OF PROFESSIONAL CONDUCT
By Saul Jay Singer

I am the only person who
knows that my client, out
on bail, has committed a
serious crime by fleeing
the country to places
unknown. I know that I
cannot continue to represent a client with whom I
cannot communicate, and,
in accordance with Rule
1.16, I filed a motion to withdraw. Moreover, I have
read your Speaking of Ethics article "Going
Through 'Withdrawal'" (Washington Lawyer,
January 2011), so I know that any information
regarding my client's escape is a Rule 1.6 client
secret and that, as such, I may not disclose to the
court the reason for my motion.
However, the court has advised that it will not
grant my motion unless I provide my basis for it.
Classic rock and hard place: If I respond to the

court, I violate Rule 1.6; if I don't, I can't get out of
the case . . . and perhaps much worse.

One of the "black letter"
rules of legal ethics is that
a court order will trump
the Rules of Professional
Conduct, which plays out
here in two distinct ways.

First, if the court or applicable substantive law
mandates that you disclose your client's flight,
then you must do so. See Rule 1.6(e)(2)(A).
Second, even absent such a law or order, you still
have the duty to competently, diligently, and zealously advocate for your client. What that means
here is that you must assert attorney-client privilege and passionately argue Rule 1.6, but that does
not include the duty to have your motion denied

or to possibly earn a court sanction. At the end of
the day, if the court requires the information, the
court gets the information, but you should then
carefully walk the line between trying your best
not to report the client's flight while also being
very careful not to mislead the court.
For example, you might try telling the court, "I am
having problems communicating with my client,"
which is - and this is very important - both true
and not misleading. If the court does not accept
this explanation, then you might say, "Your Honor, I
do not know where my client is" - also true and
not misleading. Only if pushed to the edge should
you advise the court that your client has fled the
country.
D.C. Bar legal ethics counsel Saul Jay Singer, Hope C.
Todd, and Erika Stillabower are available for inquiries
on the Legal Ethics Helpline at 202-737-4700, ext. 1010,
or at ethics@dcbar.org.

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Washington Lawyer - September 2019

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