2011-4.

• Court: Alaska

Alaska Alaska Ethics Opinion 2011. 2011-4. ALASKA BAR ASSOCIATIONETHICS OPINION 2011-4Duties of an Attorney in a Criminal Appeal When the Client Cannot be ContactedQuestion Presented The Committee has been asked to define the scope of an attorney's duties in a criminal appeal when the client cannot be contacted. Conclusion The Committee concludes that an attorney representing a client in a criminal appeal, regardless of whether the attorney is in private practice or a Public Defender, is obligated to conduct a reasonable inquiry as to the whereabouts of the client and to take reasonable efforts to contact the client where the client previously has directed that an appeal be filed.(fn1) If, after conducting a reasonable inquiry, the client cannot be contacted, then the attorney must file the notice of appeal and points on appeal where the client previously has directed that an appeal be filed. The attorney, after filing the notice of appeal and points on appeal, ethically may file appellate briefs on behalf of the client even if the client, despite reasonable efforts, cannot be contacted. Finally, the Committee concludes that the attorney, either simultaneously with the filing of the notice of appeal and points on appeal or subsequently, may file a motion to withdraw where the attorney shows that he or she has made reasonable efforts to contact the client, who, despite those reasonable efforts, cannot be contacted, and that withdrawal is appropriate.(fn2) Applicable Rules and Analysis

Although the Committee previously addressed a somewhat similar question with regard to the obligation of an attorney to file suit when the statute of limitations is about to expire and the client cannot be contacted,(fn3) the provisions of several associated ethical rules once again must be considered in order to determine the attorney's ethical obligations under the specific question presented here.

First, there is the provision regarding the scope of representation and allocation of authority between the client and the lawyer. Under the ethics rules, the lawyer in a criminal case "shall abide by the client's decision, after consultation with the lawyer, as to . . . whether to take an appeal."(fn4)

Second, a lawyer, in accordance with Alaska Rule of Professional Conduct 1.3, "shall act with reasonable diligence and promptness in representing a client." The Comment to Rule 1.3 explains that "[w]hether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client." The Comment further explains that the lawyer should carry through to conclusion all matters undertaken for a client "[u]nless the relationship is terminated as provided in Rule 1.16," or, where the lawyer's employment is limited to a specific matter the resolution of which terminates the lawyer-client relationship (e.g., where either the retainer agreement or court appointment provides that the attorney shall represent the client only through conclusion of the trial).(fn5) Finally, the lawyer's obligation under Rule 1.3 to act with reasonable diligence in representing a client dovetails with the requirements of Rule 1.4, which provides that "[a] lawyer shall keep a client reasonably informed about the status of a...