050514 AKEO, 2014-2

• Case Date: May 05, 2014
• Court: Alaska

2014-2 Ethics Opinion 2014-2 Alaska Ethics Opinions Alaska Bar Association May 5, 2014           Approved by the Alaska Bar Association Ethics Committee on April 3, 2014.          Attorney's Duties When Informed That A Criminal Defendant Client Is In Violation Of Bail Release Conditions          Introduction          In Ethics Opinion 2001-1, the Committee addressed whether a criminal defense attorney who is informed by a third-party custodian that the attorney's client is violating his conditions of release has an ethical obligation to notify the court of this communication.^[1] The Committee concluded that the attorney does not have an affirmative obligation to inform the court of the custodian's statements. Ethics Opinion 2001-1 specifically analyzed whether former Alaska Rule of Professional Conduct 3.3 imposed a duty of disclosure, and the Committee concluded that it did not.^[2]          ARPC 3.3 was revised subsequent to the publication of Ethics Opinion 2001-1, and the Committee was asked whether the revision to the Rule requires any change to Ethics Opinion 2001-1. For the reasons stated below, the Committee concludes that Ethics Opinion 2001-1 remains sound and the Opinion should not be revised or withdrawn. The analysis and comments below clarify and supplement the conclusions of Ethics Opinion 2001-1.          Background          Ethics Opinion 2001-1 stated the facts as follows:

A criminal defense attorney represents a client who has been released to a third party custodian pending trial. A court order defines the obligations of the third party custodian, but places no specific obligations on the attorney. Later, the third party custodian calls the attorney directly and reports (a) the client is not complying with the conditions of release; and (b) the third party custodian no longer wishes to be a third party custodian for the client. No facts indicate that as a result of his conversations with the attorney, the third party custodian misunderstands the role of the attorney and who the attorney was representing in the case.^[3]

         In analyzing the attorney's duties in this situation, the Committee distinguished the facts presented - where the attorney learns about a client's misconduct outside of court - from a situation where the attorney learns that the client plans to present, or has presented, a statement in court that is materially false or perjurious. The Committee noted that, if the client were to misinform the judge regarding his custodian's desire to withdraw or to demand that the lawyer not answer truthfully when asked about the custodian's statements, then the lawyer would be ethically obligated to correct the false statements or to withdraw as counsel; otherwise, the lawyer would violate former ARPC 3.3(a)(2), which required that a lawyer not knowingly fail to disclose a material fact to the tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. But, the Committee concluded, where disclosure is not required to prevent or correct false statements to the court, not taking steps to volunteer the custodian's statements would not constitute assisting a criminal or fraudulent act within the...