How should a defense lawyer ask for a continuance at a criminal status call when the client has disappeared, without lying or revealing a confidence?

Plain-English summary

At criminal docket calls, defense attorneys announce a case's status as "ready for trial," "plea date," or "continuance," and a continuance request and its reason must be in writing unless the state agrees. Sometimes a criminal defendant disappears or cuts off all contact while the attorney remains of record. The inquiry asked how a defense attorney should respond when requesting a continuance in that situation.

The committee, applying the former Illinois Code of Professional Responsibility, concluded the attorney cannot give an untruthful reason for the continuance request under former Rule 1-102(a)(4). If the information about the client's lack of contact is a confidence or secret as defined in former Rule 4-101(a), the attorney cannot disclose it unless required by law to do so, in which event the attorney may disclose the information under former Rule 4-101, or may appeal the order or test the law. The committee added that, under the circumstances described, the attorney may seek the court's permission to withdraw under former Rule 2-110(c)(1)(D), on the ground that the client's conduct renders it unreasonably difficult to carry out the representation effectively.

Currency note

This opinion was issued in 1989, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later the 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (Rules 1.6 and 3.3(a)), while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Can a defense lawyer give a generic or false reason for a continuance when the client has vanished?

A: No. The opinion concluded the attorney cannot give an untruthful reason for the continuance request.

Q: Can the lawyer just tell the court the client has disappeared?

A: The opinion concluded that if the lack of contact is a confidence or secret, the lawyer may not disclose it unless required by law, in which case the lawyer may disclose it, or appeal or test the order.

Q: What other option does the lawyer have?

A: The opinion concluded the lawyer may seek the court's permission to withdraw, because the client's conduct renders it unreasonably difficult to carry out the representation effectively.

Background and rules framework

The opinion applied the former Illinois Code's bar on dishonest conduct (Rule 1-102(a)(4)), its confidentiality rule (Rule 4-101), and its withdrawal provision (Rule 2-110(c)(1)(D)). The Board later mapped these to the current confidentiality and candor rules (Model Rules 1.6 and 3.3), with withdrawal under Model Rule 1.16.

Citations and references

Rules of Professional Conduct:

• Former Illinois Code Rule 1-102(a)(4) (misconduct; dishonesty) / current Model Rule 3.3 (candor) and 8.4(c)
• Former Illinois Code Rule 4-101 (confidences and secrets) / current Model Rule 1.6
• Former Illinois Code Rule 2-110(c)(1)(D) (permissive withdrawal) / current Model Rule 1.16

See also

• ISBA Ethics Op. 90-27: PD Office and a Client's Secret
• ISBA Ethics Op. 90-08: Duty to Report Information Gained During Representation
• ISBA Ethics Op. 91-08: Mother's Instruction to Dismiss a Paternity Appeal

Source

• Landing page: https://www.isba.org/ethics/opinions/8913