If a third-party custodian tells a criminal defense lawyer that the client is violating release conditions, must the lawyer report it to the court?

Plain-English summary

The Committee considered a criminal defense attorney whose client had been released to a third-party custodian pending trial. A court order set the custodian's obligations but imposed none on the attorney. The custodian later called the attorney directly, reported that the client was not complying with the release conditions, and said the custodian no longer wished to serve. The question was whether the attorney had an obligation to notify the court.

The Committee concluded that no specific Alaska Rule required the attorney to report the conversation. Because the attorney represented only the client and not the custodian, the attorney's ethical obligations ran to the client, and placing the custodian's interests ahead of the client's would have violated Rule 1.7. The Committee also found no duty to disclose under Rule 3.3, which barred knowingly making a false statement to a tribunal or failing to disclose a material fact when necessary to avoid assisting a client's criminal or fraudulent act. The opinion explained that the duty to disclose arose where a client offered perjurious testimony or evidence, but that the attorney's silence here did not assist a criminal or fraudulent act.

The Committee distinguished its earlier Ethics Opinion 95-3, which had found a duty to report a change in the client's financial status affecting eligibility for appointed counsel, on the ground that Administrative Rule 12(f) specifically required that report, and it was that reporting requirement that triggered the Rule 3.3 duty. The opinion added that the attorney had to remain mindful of Rule 4.3 (dealings with persons other than clients): if the attorney knew or reasonably should have known that the custodian misunderstood the attorney's role or expected the attorney to advise the court, the attorney could not simply remain silent.

Currency note

This opinion was issued in 2001, before Alaska's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did a criminal defense lawyer have to tell the court the client violated bail conditions?

A: The opinion concluded the lawyer had no such duty when a third-party custodian reported the violation, because the lawyer's obligations ran only to the client.

Q: Why didn't Rule 3.3 require disclosure to the court?

A: The opinion explained that Rule 3.3 required disclosure only to avoid assisting a client's criminal or fraudulent act, such as perjury, and that staying silent about the custodian's report did not assist any such act.

Q: How was this different from Opinion 95-3, which required a report?

A: Per the opinion, in 95-3 a separate rule, Administrative Rule 12(f), specifically required reporting a change in the client's financial status, and that statutory reporting duty was what triggered the Rule 3.3 obligation.

Q: Did the lawyer's duties to the custodian matter at all?

A: The opinion noted that under Rule 4.3, if the lawyer knew or reasonably should have known the custodian misunderstood the lawyer's role or expected the lawyer to advise the court, the lawyer could not simply remain silent.

Background and rules framework

The opinion interpreted Alaska Rules of Professional Conduct 1.7 (concurrent conflicts of interest; Model Rule 1.7), 3.3 (candor toward the tribunal; Model Rule 3.3), and 4.3 (dealing with unrepresented persons; Model Rule 4.3). It referenced AS 09.50.010 (the third-party custodian's obligations to the court) and Alaska Administrative Rule 12(f) (reporting a change in a client's financial status), and distinguished the Committee's earlier Ethics Opinion 95-3.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 1.7 (conflicts of interest)
• Alaska RPC 3.3 (candor toward the tribunal)
• Alaska RPC 4.3 (dealing with persons other than clients)

Statutes and rules:

• AS 09.50.010 (third-party custodian's obligations)
• Alaska Administrative Rule 12(f) (reporting change in client's financial status)

Other opinions cited:

• Alaska Ethics Opinion 95-3 (distinguished)

See also

• AK Bar Ethics Op. 2003-2: Estate Personal Representative Fraud
• AK Bar Ethics Op. 2005-1: Disclosing a Client's Suicide Threat

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2001-01.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION 2001-1
Attorney’s Duties When Advised By Custodian
That Criminal Defendant Has Breached
Conditions Of Client’s Release
The Committee has been asked the following question: If a third party
custodian of a criminal defense attorney’s client advises the attorney that the
client is failing to comply with the terms of release, does the defense attorney
have an obligation to notify the Court? The Committee has concluded that
Alaska Rules of Professional Conduct (RPC) do not require the attorney to
report the information to the Court.
Facts
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.1
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 misunderstood the role of the attorney and who the attorney
was representing in the case.
Discussion
An attorney has a duty of undivided loyalty to his client. No specific rule
of the Alaska Rules of Professional Conduct requires the attorney to voluntarily
report the contents of the conversation with the third party custodian to the
Court under the fact situation presented. Since the attorney represents only

See AS 09.50.010 for the third party custodian’s obligations to the court under these
circumstances.
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the client, and does not represent the third-party custodian, the attorney’s
ethical obligations are only to the client. Placing the third party custodian’s
interest ahead of the client’s interest would violate ARPC 1.7.2
Additionally, there is no obligation to disclose the conversation to the
Court under ARPC 3.3. This section states in pertinent part:
(A) A lawyer shall not knowingly:
(1)
(2)

make a false statement of material fact or law to a tribunal;
fail to disclose a material fact to a tribunal when disclosure
is necessary to avoid assisting a criminal or fraudulent act
by the client;

The duty to disclose does arise in a criminal case where the client insists
on providing, or provides, testimony or evidence where the lawyer knows that
the testimony is perjurious. For instance, in the face of a question from the
court, if a client were to misinform the Court regarding or demand that a
lawyer not inform the Court of his custodian’s desire, the lawyer would be
required to insist on being truthful to the court or withdraw as counsel for the
Defendant. Under the circumstances of this case, the lawyer’s failure to advise
the Court does not constitute “assisting a criminal, or fraudulent act by the
client.”
The Committee distinguishes Ethics Opinion 95-3 on this basis. In 95-3,
the Committee held that an attorney did have a duty to report a change in the
client’s financial status that affected eligibility for appointed counsel. However,
Administrative Rule 12 (f) specifically requires an attorney to report a change in
the Client’s financial status and it is the existence of the reporting requirement
of AdR 12(f) that triggers the duty under ARPC 3.3.

The attorney must also be mindful of the obligations imposed under ARPC 4.3
(Transactions with Persons other than Clients). Therefore, if the attorney knows, or reasonably
should know, the third party custodian does not understand the attorney’s role in the matter,
or the attorney knows, or reasonably should know, that the third party custodian expects or
anticipates the attorney will advise the Court, the attorney cannot simply remain silent.
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Conclusion
The Alaska Rules of Professional Conduct do not impose upon an
Attorney the duty to inform to the Court where a third party custodian advises
the attorney that the attorney’s client has violated the conditions of release. In
recognition of the duty of loyalty3 of an attorney to a client, the Committee
declines to imply such a conflicting duty to inform the Court.

Approved by the Alaska Bar Association Ethics Committee on January 4, 2001.
Adopted by the Board of Governors on March 30, 2001.

G:\Ds\COMM\Ethics\OPINIONS\2001-01.doc

Opinion 95-3 contains an extensive discussion of the balancing of the obligation of an
attorney to the client with the obligation of the attorney to others, including the obligation of
the attorney to “the law”. That discussion emphasizes the narrowness of this Committee’s
opinion.
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