Does a criminal defense lawyer have to tell the court when a third-party custodian reports the client is violating bail conditions?

Plain-English summary

The Committee revisited Ethics Opinion 2001-1, which held that a criminal defense attorney told by a third-party custodian that the client is violating release conditions has no affirmative duty to notify the court. Because Rule 3.3 had been revised after 2001-1 was issued, the Committee was asked whether the revision changed that conclusion. It concludes 2001-1 remains sound and should not be revised or withdrawn, and supplements it.

On the facts (a custodian who calls the attorney to report noncompliance and a wish to stop serving as custodian, with no indication the custodian misunderstands the attorney's role), the opinion analyzes revised Rule 3.3. It concludes that Rule 3.3 remains focused on protecting the integrity of courtroom proceedings, principally preventing false testimony and evidence, and is not intended to alter the lawyer's confidentiality duties under Rule 1.6 except as needed to safeguard the adjudicative process. The Committee draws on the Model Rules' legislative history (the Commission Reporter's Explanation) to show that the examples of "criminal or fraudulent conduct related to the proceeding," such as jury tampering or document destruction, all concern conduct affecting in-court testimony, not a client's out-of-court noncompliance with a court order. The custodian's communication is a "secret" under Rule 1.6(a) because its disclosure could foreseeably be detrimental to the client.

The opinion then adds practical points about the lawyer's other duties toward the custodian. Because a custodian's failure to report a violation as directed is itself a crime, if the lawyer believes the custodian intends not to report, the lawyer may not give the custodian legal advice but may suggest the custodian consult an attorney. And if the lawyer knows or should know the custodian is confused about the lawyer's role, Rule 4.3 requires the lawyer to clarify that the lawyer does not represent the custodian, will not discharge the custodian's reporting duty, and that the custodian should seek separate counsel.

In practice

Under this opinion, as the Alaska rules stood at the time, a criminal defense lawyer who learns from a third-party custodian that the client is violating release conditions has no duty under Rule 3.3 to volunteer that report to the court, and the report is protected as a client secret under Rule 1.6. The opinion treats Rule 3.3 as reaching only conduct affecting the integrity of in-court testimony and evidence. It identifies separate obligations toward the custodian under Rule 4.3: not giving the custodian legal advice (beyond advising the custodian to get counsel) and correcting any misunderstanding that the lawyer represents the custodian or will discharge the custodian's own duty to report.

Common questions

Q: Must a defense lawyer tell the court when a custodian reports the client broke bail conditions?

A: No. The opinion reaffirms there is no obligation to volunteer the custodian's report, because Rule 3.3 protects the integrity of in-court proceedings and the report is a Rule 1.6 client secret.

Q: Did the revision of Rule 3.3 change this?

A: No. The opinion concludes the revised Rule 3.3 still targets false testimony and evidence in court, not a client's out-of-court noncompliance, so Opinion 2001-1 remains sound.

Q: What should the lawyer do about the custodian who wants to stop reporting?

A: Per the opinion, the lawyer may not give the custodian legal advice but may suggest the custodian consult an attorney, since failing to report as directed is itself a crime.

Q: What if the custodian thinks the lawyer represents them?

A: Under Rule 4.3, the opinion says the lawyer must clarify that the lawyer does not represent the custodian, will not discharge the custodian's reporting duty, and that the custodian should seek separate counsel.

Background and rules framework

The opinion interprets Alaska Rule of Professional Conduct 3.3 (candor toward the tribunal, analog of Model Rule 3.3) as revised in 2009 to track the 2002 Model Rule changes, read together with Rule 1.6 (confidentiality) and Rule 4.3 (dealing with unrepresented persons). It relies on the Model Rules' legislative history to confirm Rule 3.3's scope.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 3.3 (candor toward the tribunal), former and revised
• Alaska RPC 1.6, 1.6(a) (confidentiality; definition of "secret")
• Alaska RPC 4.3 (dealing with unrepresented persons)

Statutes:

• AS 11.56.758(a) (violation of custodian's duty); AS 12.30 (release)

Other opinions cited:

• Alaska Ethics Opinion 2001-1 (reaffirmed)
• ABA, A Legislative History: The Development of the ABA Model Rules of Professional Conduct, 1982-2005

See also

• AL Bar Op. 2009-01: A Lawyer's Obligations When the Client Has Committed Misconduct
• AK Bar Ethics Op. 2020-2: Publicizing Client Recoveries

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2014-2.pdf

Original opinion text

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

ALASKA BAR ASSOCIATION
ETHICS OPINION 2014-2
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
See Attorney’s Duties When Advised By Custodian That Criminal
Defendant Has Breached Conditions Of Client’s Release, Alaska Ethics Op. No.
2001-1 (March 30, 2001).
1

2

See id. at 2.

3

Id. at 1 (footnote omitted).

1

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 meaning of former Rule 3.3.
Discussion
(A)

Former ARPC 3.3

Ethics Opinion 2001-1 was adopted in light of the version of Rule 3.3
then in effect. The Rule was titled “Candor Toward the Tribunal,” and in
pertinent part that version of ARPC 3.3 provided:
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure
is necessary to avoid a criminal or fraudulent act by the
client;

(4) offer evidence the lawyer knows to be false. If a lawyer has
offered material evidence and comes to know of its falsity the
lawyer shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion of
the proceeding, and apply even if compliance requires
disclosure of information otherwise protected by Rule 1.6.
As discussed above, Ethics Opinion 2001-1 rested on the Committee’s
determination that former ARPC 3.3 stated duties regarding the integrity of
courtroom proceedings, and therefore it did not impose a duty on an attorney
to volunteer information about a client’s conduct outside the court that might

2

be criminal or a violation of a court order but that did not undermine the
integrity of the proceedings.
The Alaska Rules of Professional Conduct are based largely on the ABA’s
Model Rules of Professional Conduct. Former ARPC 3.3 mirrored the version
of Model Rule 3.3 that was in effect in 2001. The official legislative history of
the Model Rules explains that former Model Rule 3.3(a)(1) and (2) “stated the
[lawyer’s] general duty of truthfulness in representations to a tribunal.”4 The
history of the former version of the Model Rules mostly stressed the lawyer’s
duties to protect a client’s confidences and did not in any way suggest that
Rule 3.3 imposed a duty to prevent or disclose misconduct by the client outside
of court that did not result in a false statement to the tribunal.5
In reconsidering the conclusion of Ethics Opinion 2001-1, the
Committee has reviewed former ARPC 3.3 and its commentary, as well as the
legislative history of the comparable Model Rule. Based on all of this, the
Committee concurs with the Committee’s previous analysis of the purpose and
scope of former Rule 3.3. The former Rule and the conclusion in Ethics
Opinion 2001-1 struck a deliberate balance between the lawyer’s duty of loyalty
to the client and duty to protect a client’s secrets, on the one hand, and the
lawyer’s duty to the court, on the other hand.
(B)

Current ARPC 3.3

The Alaska Supreme Court rescinded and repromulgated the Alaska
Rules of Professional Conduct in 2009. With respect to ARPC 3.3, the Supreme
Court retained the title “Candor Toward the Tribunal,” but made a number of
changes to the text of the Rule and its commentary. In its current form, ARPC
3.3 provides in pertinent part:
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously
made to the tribunal by the lawyer;

(3) offer evidence that the lawyer knows to be false. If a lawyer,
the lawyer’s client, or a witness called by the lawyer has
offered material evidence and the lawyer comes to know of its
falsity, the lawyer shall take reasonable and timely remedial

See CENTER FOR PROFESSIONAL RESPONSIBILITY, AMERICAN BAR ASSOCIATION, A
LEGISLATIVE HISTORY: THE DEVELOPMENT OF THE ABA MODEL RULES OF
PROFESSIONAL CONDUCT, 1982-2005 at 432.
4

5

See generally id. at 432-48.

3

measures, including, if necessary, disclosure to the tribunal.
...
(b) A lawyer who represents a client in an adjudicative proceeding
and who knows that a person, including the lawyer’s client,
intends to engage, is engaging, or has engaged in criminal or
fraudulent conduct related to the proceeding shall take
reasonable and timely remedial measures, including, if
necessary, disclosure to the tribunal.
One of the comments to the current version of Rule 3.3 expresses the
central purpose of this Rule:
Lawyers have a special obligation to protect a tribunal against
criminal or fraudulent conduct that undermines the integrity of the
adjudicative process, such as bribing, intimidating or otherwise
unlawfully communicating with a witness, juror, court official or
other participant in the proceeding, unlawfully destroying or
concealing evidence, or failing to disclose information to the
tribunal when required by law to do so. Thus, paragraph (b)
requires a lawyer to take reasonable remedial measures, including
disclosure if necessary, whenever the lawyer knows that a person,
including the lawyer’s client, intends to engage, is engaging or has
engaged in criminal or fraudulent conduct related to the
proceeding.
That is, the current title and commentary both reinforce the conclusion that
Rule 3.3 still is focused on the lawyer’s obligation to protect the integrity of
courtroom proceedings, and is not intended to alter the lawyer’s duties to his or
her client as set forth in Rule 1.6,6 except as necessary to safeguard the
integrity of the adjudicative process.
The 2009 changes in the Alaska Rules of Professional Conduct are
mostly based on comparable changes to the Model Rules of Professional
Conduct, as adopted by the American Bar Association in 2002. In particular,
the changes to ARPC 3.3 and its commentary adopted by the Alaska Supreme
Rule 1.6 establishes the lawyer’s duty to protect the secrets and
confidences of a client, and instructs that the lawyer shall resolve any
uncertainty over whether a secret may be revealed against revealing the
information. The communication from the third-party custodian at issue in
this opinion is a “secret” within the meaning of ARPC 1.6(a), which provides
that a “secret” includes “information gained in the professional relationship . . .
if it is reasonably foreseeable that disclosure of the information would be
embarrassing or detrimental to the client.”
6

4

Court in 2009 match the changes to Model Rule 3.3 and its commentary that
were adopted by the ABA in 2002. The legislative history of the Model Rules
corroborates the Committee’s understanding of the intent and scope of current
ARPC 3.3.
The legislative history of the Model Rules includes the Commission
Reporter’s Explanation of Changes. This Explanation expands on the official
commentary and confirms that the ethical obligations established by Model
Rule 3.3 refer to a duty to prevent false testimony from being presented in
court, not a duty to report on a client who might be violating a court order
outside of court, such as not abiding by all the conditions of the client’s
release:
The Commission has revised and reorganized this Rule to clarify a
lawyer’s obligation of candor to the tribunal with respect to
testimony given and actions taken by the client and other
witnesses. . . . In some particulars, the lawyer’s obligations to the
tribunal have been strengthened. For example, the Rule now
makes clear that the lawyer must not allow the introduction of
false evidence and must take remedial steps where the lawyer
comes to know that material evidence offered by the client or a
witness called by the lawyer is false – regardless of the client’s
wishes. . . . The lawyer’s obligation in the existing Rule to avoid
assisting client crime or fraud is replaced by a broader obligation
to ensure the integrity of the adjudicative process. The lawyer
must take remedial measures whenever the lawyer comes to know
that any person is engaging or has engaged in criminal or
fraudulent conduct related to the proceeding, such as by jury
tampering or document destruction.7
The Reporter’s Explanation goes on to explain ways that the revised Rule
strengthens the lawyer’s obligation to the client in a criminal case.8
Notably, all of the examples of “criminal or fraudulent conduct related to
the proceeding” stated in the Reporter’s Explanation and the official
commentary to Model Rule 3.3 involve conduct designed to affect testimony in
court. Standard principles of construction establish that wholly different kinds
of misconduct – such as noncompliance with bail conditions – are not intended
to be covered.

ABA, A LEGISLATIVE HISTORY: THE DEVELOPMENT OF THE ABA MODEL RULES OF
PROFESSIONAL CONDUCT, 1982-2005 at 453-54.
7

8

See id. at 454.

5

In short, the Reporter’s Explanation of the purpose of the changes in the
Model Rules underscores that the changes were not at all intended to place the
lawyer in a position of needing to disclose secrets or confidences learned from
the client or in connection with the representation where these do not affect the
integrity of testimony or evidence presented in court.

6

Conclusion
For all these reasons, the Committee reaffirms the conclusion of Ethics
Opinion 2001-1 that, under the facts presented, the attorney has no ethical
obligation to volunteer the third-party custodian’s comments to the court.
However, the Committee also notes that there are other actions that the
attorney should take when the attorney receives a communication from a thirdparty custodian as described in the facts above.
Under current law, a custodian’s failure to “report as directed” a
defendant’s violation of bail conditions is itself a crime9; typically, the
custodian is directed by the court to report a violation either to the court or to
the District Attorney’s Office. If the lawyer believes the third-party custodian
intends not to report the defendant’s violation as directed by the court, the
lawyer may not give legal advice to the custodian but may suggest that the
custodian consult an attorney.10 If the lawyer knows or reasonably should
know that the third-party custodian is confused about the custodian’s
relationship to the lawyer, the lawyer must clarify that the lawyer is not the
lawyer for the custodian, that the lawyer will not discharge the custodian’s
duty to inform the court of the custodian’s statements, and that the custodian
should seek advice from another attorney.11
Approved by the Alaska Bar Association Ethics Committee on April 3, 2014.
Adopted by the Board of Governors on May 5, 2014.
G:\Ds\COMM\ETHICS\ADOPTED AK BAR ETHICS OPINIONS\2014-2.docx

See AS 11.56.758(a) (“A person commits the crime of violation of
custodian’s duty if the person knowingly fails, when acting as a custodian
appointed by the court for a released person under AS 12.30, to report
immediately as directed by the court that the person released has violated a
condition of release.”).
9

See ARPC 4.3 (Dealing with Unrepresented Person: “When the lawyer
knows or reasonably should know that the unrepresented person
misunderstands the lawyer’s role in the matter, the lawyer shall make
reasonable efforts to correct the misunderstanding. The lawyer shall not give
legal advice to an unrepresented person, other than the advice to secure
counsel, if the lawyer knows or reasonably should know that the interests of
that person are or have a reasonable possibility of being in conflict with the
interests of the client.”).
10

11

See id.

7