What must a lawyer do in a criminal appeal when the client has directed an appeal but cannot be contacted?

Plain-English summary

The Committee was asked to define an attorney's duties in a criminal appeal when the client cannot be contacted. It concludes that an attorney, whether in private practice or a public defender, must conduct a reasonable inquiry into the client's whereabouts and make reasonable efforts to contact the client where the client previously directed that an appeal be filed.

The opinion describes what a "reasonable inquiry" may include, drawing on opinions from several jurisdictions: telephone, a letter to the last known address, a personal visit, email, an internet search, post office or motor-vehicle registry searches, or newspaper publication. If, after reasonable inquiry, the client still cannot be contacted, the attorney must file the notice of appeal and points on appeal where the client previously directed an appeal, and the attorney may then file appellate briefs on the client's behalf even though the client cannot be reached. The attorney may also, simultaneously or later, move to withdraw on a showing that reasonable efforts were made and that withdrawal is appropriate.

The opinion grounds these duties in several rules. Rule 1.2 gives the client the decision whether to take an appeal. Rule 1.3 requires reasonable diligence, and its comment ties the obligation to prosecute an appeal to the agreed scope of representation, including court-appointment rules that keep appointed trial counsel on through the appeal's initial filings. Rule 1.4 requires keeping the client reasonably informed. The opinion stresses that the analysis is fact-specific, declines to set civil-liability standards, and recommends that lawyers take preventive steps at the outset of a representation (for example, collecting alternate contact information) to prepare for the possibility of a client who cannot be located.

In practice

Under this opinion, as the Alaska rules stood at the time, a lawyer (private or public defender) representing a client who directed a criminal appeal but then became unreachable must make a reasonable inquiry to locate the client (the opinion lists methods such as letters, visits, and public-record and internet searches), and must file the notice of appeal and points on appeal. The opinion says the lawyer may then file briefs despite the lack of contact and may move to withdraw on a showing of reasonable efforts. It frames the duties as depending on the scope of representation under Rule 1.3 and recommends gathering alternate contact information at intake as a preventive measure.

Common questions

Q: If a criminal-appeal client disappears, does the lawyer still have to file the appeal?

A: Yes, where the client previously directed an appeal. The opinion concludes the lawyer must file the notice of appeal and points on appeal after a reasonable inquiry to locate the client.

Q: What counts as a reasonable inquiry to find the client?

A: The opinion lists examples: phone calls, a letter or personal visit to the last known address, email, internet searches, post office or motor-vehicle registry searches, and newspaper publication.

Q: Can the lawyer withdraw if the client still can't be reached?

A: Yes. The opinion says the lawyer may move to withdraw, either with or after filing the appeal, on a showing of reasonable efforts to contact the client and that withdrawal is appropriate.

Q: Can the lawyer file briefs without the client's input?

A: The opinion concludes the lawyer ethically may file appellate briefs on the client's behalf even if the client cannot be contacted despite reasonable efforts.

Background and rules framework

The opinion interprets Alaska Rules of Professional Conduct 1.2(a) (the client decides whether to appeal, analog of Model Rule 1.2), 1.3 (diligence, Model Rule 1.3) and its comment on scope, 1.4 (communication), and 1.16 (withdrawal). It references Alaska Appellate Rule 517(b) and Rule 209(b)(4) on appointed counsel and prior Opinion 2004-3 on filing to protect a missing client's interest.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 1.2(a) (client's decision to appeal); RPC 1.3 (diligence) and comment
• Alaska RPC 1.4 (communication); RPC 1.16 (withdrawal)

Rules of court:

• Alaska Appellate Rules 517(b), 209(b)(4) (appointed counsel)

Cases:

• Coffman v. State, 172 P.3d 804 (Alaska App. 2007)

Other opinions cited:

• Alaska Ethics Opinion 2004-3; ABA Informal Op. 1467; N.Y. Eth. Op. 787; Ala. Op. RO-87-98, among others

See also

• AK Bar Ethics Op. 2026-1: Disclosure When Withdrawing From Representation
• AK Bar Ethics Op. 2014-2: Client Bail-Condition Violations
• RI EAP Op. 2005-04: No Attorney-Client Relationship, and No Duty to Answer, Where the Insurer-Assigned Insured Cannot Be Found

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2011-4.pdf

Original opinion text

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

ALASKA BAR ASSOCIATION
ETHICS OPINION 2011-4
Duties of an Attorney in a Criminal Appeal
When the Client Cannot be Contacted
Question 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.1
A “reasonable inquiry” may consist of, but is not limited to, attempts
to contact the client by telephone, letter to client’s last known address, personal
visit to the client’s last known address, electronic mail inquiry, internet search,
post office search, registry of motor vehicle search, or newspaper publication.
See, e.g., Ala. Ethics Comm., Op. RO-87-98 (Oct. 7, 1987) (referencing two prior
ethics opinions, RO-84-26 and RO-84-106, suggesting that notice of impending
action in client’s case be made known by publication where client’s location
unknown); N.C. Eth. Op. RPC 223 (N.C. State Bar 1996) (involving case where
attorney attempted to contact client through several methods such as the
telephone, a letter sent to client’s last known address, a request to client’s
former employer to forward letter to client at last known address on file,
contacting one of client’s treating physicians, contacting client’s insurance
company, and checking county property listings); R.I. Supr. Ct. Ethics Advisory
Panel Op. 93-1 (Mar. 31, 1993) (suggesting, when attempting to locate the
missing client, a personal visit to client’s last known address, and search of
post office or motor vehicle registry records); and Va. Bar Assn. Standing
Comm. on Legal Ethics Informal Op. 1088 (June 8, 1988) (involving case where
attorney attempted to contact client via first-class mail and certified mail return
receipt requested). See also N.Y. Eth. Op. 787, Conflict of Interest; Missing
Client, at *2 n.8 (N.Y. St. Bar Assn. Comm. Prof. Eth. June 9, 2005) (stating
that, before withdrawing, lawyer “must take all reasonable steps to locate the
client,” and that these steps “might include sending a letter via certified mail to
the last known address, a personal visit to last known address, or a search of
telephone directories, public records or the Internet”); Allison Elizabeth
Williams, Missing Clients: What To Do When Your Client Has Vanished, 28 J.
LEGAL PROF. 247 (2003-2004) (providing overview of attorney’s obligations to
missing client and suggesting anticipatory measures in the event client goes
1

1

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.2
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,3 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.”4
missing and cannot be located); Karen J. Dilibert, The Mysterious Case of the
Missing Client, 89 ILL. B.J. 663 (2001) (suggesting preventative measures to
avoid “missing client” issues).
See Alaska Rules of Professional Conduct 1.3, 1.16; Alaska Appellate
Rule 517(b).
2

See Alaska Bar Association Ethics Op. 2004-3 (2004) (concluding that
lawyer may file complaint if the lawyer reasonably believes that the client has
authorized the attorney to file complaint and is relying on the attorney to do so,
or if the attorney believes that failure to file would materially and adversely
affect the client’s interest). Cf. American Bar Association Comm. On Ethics and
Prof. Resp., Informal Op. 1467 (1981) (concluding that a lawyer does not have a
duty to file a lawsuit and toll the statute of limitations on behalf of the client
who has disappeared, provided that the loss of contact was not caused by the
lawyer’s neglect).
3

See Alaska Bar Association Ethics Op. 2004-3 (2004); Coffman v.
State, 172 P.3d 804, 807 (Alaska App. 2007) (citing Rule 1.2(a)).
4

2

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).5
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 matter undertaken on
the client’s behalf.”
Against this backdrop, the Committee concludes that, even if the
client cannot be contacted, an attorney who has been directed by the
client to file a criminal appeal must file the notice of appeal and points
on appeal and make reasonable inquiry as to the client’s whereabouts
and reasonable efforts to contact the client in order to inform the client
as to the status of the appeal. Notwithstanding the dearth of opinions
that directly address the issue here, the Committee believes that both the
language of the applicable rules and analysis reflected in several
analogous opinions and articles from other jurisdictions cited in this
opinion support the Committee’s conclusion.6

See Comment, AK Professional Conduct Rule 1.3 ¶ 4. See also Alaska
R. App. P. 209(b)(4) (“Counsel appointed to represent a defendant in the trial
court pursuant to Criminal Rule 39 shall remain as appointed counsel
throughout an appeal or petition for review at public expense authorized under
this paragraph and shall not be permitted to withdraw except upon the grounds
authorized in Administrative Rule 12. . . . If an appeal is to be taken, trial
counsel will not be permitted to withdraw until the notice of appeal and the
documents required to be filed with the appeal by Rule 204 have been accepted
for filing by the clerk of the appellate courts.”)
5

See note 3, supra. Although the overwhelming majority of the
opinions and articles listed in note 3 address the issue of contacting the
missing client with respect to civil matters, the recommended methods of
inquiry are no less apt in the criminal context.
6

3

For example, the Oregon State Bar Association addressed the issue
of whether an attorney may refuse to continue with an appeal unless and
until the attorney had heard from the client.7 In that case, the lawyer
who represented the defendant in litigation that resulted in a judgment
against the defendant was directed by the defendant to file an appeal and
complied with the defendant’s directive. While the appeal was pending,
the defendant left the country and the lawyer was unable to contact the
client despite several attempts. The Oregon Committee concluded that,
because the applicable rules of professional conduct required the lawyer
to provide competent representation, act with reasonable diligence and
not neglect any matter entrusted to the lawyer by the client, the lawyer
must continue to handle the appeal.8 The Committee also concluded,
however, that the lawyer could withdraw from representation of the client
under certain circumstances where the lawyer properly sought and
obtained leave to withdraw.9
The same approach is in order under Alaska’s rules of professional
conduct. Where the client has directed that the attorney file a criminal
appeal, the attorney must file the notice of appeal and points on appeal.
By timely filing the notice of appeal and points on appeal, the attorney
will have provided competent representation and acted with reasonable
diligence.10 The attorney also will have prevented prejudice to the client.

See Oregon State Bar Association Formal Op. No. 2005-33, “Conflicts of
Interest, Current Clients: Withdrawal When Client Not Found” (Aug. 2005).
7

Id. (citing Oregon Rules of Professional Conduct 1.16(b)(1) (providing
for withdrawal if it can be accomplished without material adverse effect on the
interests of the client), (5)(providing for withdrawal if client fails substantially to
fulfill an obligation to lawyer regarding lawyer’s services and has been given
reasonable warning that lawyer will withdraw unless client’s obligation(s) is
fulfilled), (6)(providing for withdrawal if continued representation will result in
unreasonable financial burden on lawyer or has been rendered unreasonably
difficult by client), and (7)(providing for withdrawal if other good cause exists).
8

Id. Compare Alaska R. Prof. Conduct 1.16(b)(1), (5)-(7) (providing for
withdrawal from representation if the same criteria are met).
9

The attorney also may file a motion for extension of time to file the
notice of appeal. See also Alaska App. R. 502(b) (providing for extensions of
time); Alaska App. R. 521(1) (providing that the appellate rules “are designed to
facilitate business and advance justice” and that in a matter involving the
validity of a criminal conviction or sentence, the rule does not authorize an
appellate court to allow the notice of appeal to be filed more than 60 days late);
Ozena v. State, 921 P.2d 640 (Alaska App. 1996) (affirming by full court a
single-judge order granting motion to accept late notice of appeal).
10

4

The Committee further concludes that, once the notice of appeal
and points on appeal are filed and reasonable efforts to locate and
contact the client have proven futile, the attorney ethically may file the
appellate briefs, or alternatively may file a motion to withdraw where it
can be shown that withdrawal is appropriate under Alaska Appellate
Rule 517(b) and Alaska Rule of Professional Conduct 1.16.
The
Committee’s conclusion is based, primarily, upon its previous Opinion
2004-3, “Responsibilities of an Attorney When a Client Cannot be
Contacted.”11
In that opinion, the Committee was asked whether a lawyer may
file a lawsuit where the statute of limitations is expiring and the client
cannot be contacted. That situation involved a cruise ship passenger
who was injured in a fall from the gangway to the dock. A year after the
injury and a year before the statute of limitations expired, the passenger
telephoned an Alaska personal injury lawyer and said that he wanted to
file a lawsuit. The lawyer interviewed the passenger and explained that
an investigation would need to be conducted before the attorney would
decide whether to take the case.
The investigation revealed that the passenger had a colorable claim
and if liability was proved damages would be substantial, despite some
facts that indicated comparative negligence. The lawyer, however, was
not in contact with the passenger during the lawyer’s investigation and
shortly before the statute of limitations ran sent the passenger a letter
with questions about the problematic facts together with a proposed
contingent fee agreement for signature. The lawyer tried to contact the
passenger by telephone several times without success.
The Committee, in reliance upon Rules 1.3 and 1.16, concluded
that the lawyer should file the complaint if the lawyer reasonably believes
that the client has authorized the attorney to file suit and is relying upon
the attorney to do so, or if the attorney believes that failing to file would
materially and adversely affect the client’s interests.
Further, the
See, e.g., People v. Brown, ___ P.3d ___, 2010 WL 726038 (Colo. Ct.
App. 2010 (stating that defendant had no right to have counsel pursue his
appeal while remaining a fugitive); Hall v. State, 609 S.E.2d 653, 654 (Ga. App.
2004) (concluding that defendant waived right to appeal, and therefore
dismissing the same, where notice of appeal, although timely, was filed while
defendant was a fugitive). See also Katz v. United States, 920 F.3d 610, 613-14
(9th Cir. 1990); Dziurgot v. Luther, 897 F.2d 1222, 1223-24 (1st Cir. 1990);
Wayne v. Wyrick, 646 F.2d 1268, 1270-71 (8th Cir. 1981); Johnson v. Caldwell,
458 F.2d 505, 505 (5th Cir. 1972) (all explaining that prejudice cannot be
established where defendant complains of attorney’s failure to perfect an appeal
while defendant was a fugitive).
11

5

Committee concluded that “if, after considering all the facts and the
factors listed in Rule 1.16(b), the lawyer concludes that withdrawal is
appropriate, [the lawyer] may terminate the representation.”
The Committee emphasizes that the lawyer’s ethical duties can
depend upon the particular facts and circumstances and it does not
undertake to define standards for the civil liability of attorneys when
representing a client in a criminal appeal where the client cannot be
contacted.12
Each case is driven by its own peculiar set of
circumstances. And, although the decision as to how to proceed with
respect to briefing a criminal appeal, like any appeal, must be made by
the lawyer (with some direction from the client), the Committee
recommends that the lawyer at the outset of the attorney-client
relationship consider the preventative measures discussed in some of the
articles previously mentioned13 in order to better prepare for the
possibility – however slight – of a client who cannot be contacted.
Approved by the Alaska Bar Association Ethics Committee
on April 7, 2011.
Adopted by the Board of Governors on May 3, 2011.

G:\Ds\COMM\ETHICS\OPINIONS\2011-4.doc

See, e.g., American Bar Association Comm. On Ethics and Prof.
Resp., Informal Op. 1467.
12

Examples of some of the preventative measures an attorney may
consider taking at the outset of the representation range from obtaining from
the client the name, address, telephone number, electronic mail address of one
or more responsible persons who will always know how to reach the client, the
name of the client’s employer, to obtaining from the client their nickname(s),
birthdate, Social Security number, or driver’s license number. See, e.g.,
Dilibert, The Mysterious Case of the Missing Client, note 1, supra.
13

6