Advising a Client to Evade Service of Process
Opinion rules that a lawyer may explain the effect of service of process to a client but may not advise a client to evade service of process.
Husband is aware that Wife has retained a lawyer and intends to proceed with a domestic action. Husband retains Attorney X to represent him. At his initial conference with Attorney X, Husband tells Attorney X that he believes that Wife has filed an action against him. Attorney X asks if Husband has been served with a complaint. Husband tells him that he has not received a complaint and asks Attorney X to explain the effect of service of the complaint. Attorney X explains the different forms of service, speculates that Wife will attempt service through the sheriff's department, and informs Husband that he must be properly served with the complaint in order for Wife to prosecute her case. Husband asks whether Wife's case can go forward if the sheriff's department is unable to find him because he "disappears for awhile." Attorney X tells him that the case cannot proceed unless he is served.
Is it ethical for Attorney X to explain to Husband the legal effect of service of process?
Yes, a lawyer "shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Rule 1.4(b) of the Revised Rules of Professional Conduct. For example, Attorney X may explain to Husband that he has no legal obligation to volunteer to accept the complaint or to pick up the papers from the sheriff's department should the sheriff's office call to request his cooperation. Moreover, if Husband asks about evading service, Attorney X may discuss the consequences of this proposed course of conduct. See, e.g., Rule 1.2(d) which permits a lawyer to discuss the legal consequences of any proposed course of conduct while prohibiting the lawyer from advising or assisting a client to engage in fraudulent conduct.
May Attorney X explain ways to evade service of process to Husband? Such advice might include instructing Husband to tell the receptionist at his place of work to lie to deputy sheriffs about his whereabouts; to go out the back door if a deputy comes to Husband's work place or home; or to stay away from his residence.
No, such conduct is unethical for a number of reasons. First, service of process is a necessary component of the judicial system and a lawyer is an officer of that system. Counseling a client in ways to evade service interferes with the judicial system and is, therefore, prejudicial to the administration of justice in violation of Rule 8.4(d). Second, a lawyer should not counsel a client to engage, or assist a client in conduct that the lawyer knows is fraudulent, in violation of Rule 1.2(d). Finally, advising a client to take evasive action solely for the purpose of delay is disrespectful of the rights of Wife in violation of Rule 4.4 which provides in part, "[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to…delay…a third person…."
May Attorney X advise his client to evade service of process provided he does not tell the client how to evade service?
No. See opinion #2 above.
Is the prohibition on instructing a client to evade service applicable to the service of other court documents such as subpoenas?