  This order is subject to administrative correction before final disposition.




UNITED STATES                                 NMCCA No. 201900128
             Appellee
                                                  Special Panel 3
     v.
Cody A. HARPER                                    PUBLISHED
Private (E-1)                                       ORDER
United States Marine Corps
             Appellant                       To Represent Appellant


               PUBLISHED ORDER OF THE COURT

                           I. FINDINGS OF FACT

   Upon consideration of the record of trial and filings by the parties, this
Court finds as follows:
   1.   On 30 January 2019, before a military judge sitting as a special
        court-martial, Appellant pleaded and was found guilty to a single
        specification of using cocaine, in violation of Article 112a, Uniform
        Code of Military Justice [UCMJ], 10 U.S.C. § 912a (2012). Pursuant
        to a pretrial agreement, all other referred charges and specifications
        were withdrawn and dismissed without prejudice, to ripen into prej-
        udice once appellate review is complete. Appellant was sentenced to
        40 days’ confinement and a bad-conduct discharge. The sentence was
        approved as adjudged on 30 April 2019, at which time, in accordance
        with the pretrial agreement, the bad-conduct discharge was sus-
        pended for six months and was thereafter remitted.
   2.   After the adjournment of his court-martial, while his case was still
        pending appellate review, Appellant was administratively separated
        from the military. He is therefore no longer attached to a military
        unit or subject to military orders.
   3.   The parties do not contest that Appellant’s case is correctly before
        this Court, the Navy-Marine Corps Court of Criminal Appeals
        [NMCCA] pursuant to Article 66, UCMJ, 10 U.S.C. § 866 (2016),
        which requires automatic appellate review of courts-martial with an
        approved sentence of, among other things, a bad-conduct discharge.
        Thus, based on his approved sentence, Appellant, by law, has a
                     United States v. Harper, NMCCA No. 201900128
                              Published Order of the Court

            mandatory appeal to this Court unless he affirmatively waives or
            withdraws his case from such appellate review. 1
   4.       As part of the Appellate Rights statement provided to Appellant in
            writing and discussed with him by the military judge at his court-
            martial, Appellant was advised of the automatic appellate review by
            this Court of cases involving the type of sentence he received. 2 He
            was advised of his right to “waive appellate review” or to “withdraw
            [his] case from appellate review at a later time.” 3 He was further ad-
            vised, “If your case is reviewed by NMCCA, military counsel will be
            appointed to represent you at no cost to you . . . .” 4
   5.       Appellant indicated to the military judge at his court-martial that he
            had read and understood his rights and had discussed them with his
            trial defense counsel, and both he and defense counsel signed the
            Appellate Rights statement advising him of these rights. 5
   6.       Appellant has taken no action to affirmatively waive or withdraw
            his case from automatic appellate review by this Court, or to affirm-
            atively waive representation by military counsel.
   7.       Appellate defense counsel was properly detailed as military counsel
            to represent Appellant before this Court. By statute, such appellate
            defense counsel “shall represent the accused before th[is] Court of
            Criminal Appeals . . . when requested by the accused; [or] when the
            United States is represented by counsel.”6 At the time of detailing,
            the only applicable clause was “when requested by the accused,” and
            we determine that the above-described Appellate Rights advice to
            Appellant that he would be represented by military counsel in the
            event of an automatic appeal, coupled with the absence of any af-
            firmative waiver of such appeal or such representation, is tanta-
            mount to Appellant’s uninterrupted and unaltered request for such




   1 Arts. 61, 66, UCMJ, 10 U.S.C. §§ 861, 866 (2016); Rule for Courts-Martial
[R.C.M.] 1110.
   2   Appellate Exhibit [App. Ex.] IV; Record at 85-86.
   3   App. Ex. IV.
   4   App. Ex. IV (emphasis added).
   5   Id. at 3-4.
   6 Art. 70(c)(1)-(2), UCMJ, 10 U.S.C. § 870(c)(2) (2016) (emphasis added). See also
R.C.M. 1202; Manual of the Judge Advocate General, Judge Advocate General
Instruction 5800.7F CH 1 § 0148 (Jan. 1, 2019).


                                            2
               United States v. Harper, NMCCA No. 201900128
                        Published Order of the Court

         counsel. Additionally, the United States is now represented by coun-
         sel in this case, such that the latter clause also applies.
   8.    Appellate defense counsel, after being properly detailed to represent
         Appellant, submitted a notice of appearance before this Court on 13
         June 2019.
   9.    On 5 August 2019, appellate defense counsel submitted a motion for
         first enlargement of time for 10 days on behalf of Appellant. 7 Appel-
         late defense counsel stated in her filing that she had reviewed the
         entire record of trial (174 pages total, including the 91-page tran-
         script), but further stated she had been unable to locate or com-
         municate with Appellant and anticipated this enlargement would al-
         low her to do so. The request was granted by the Court the same
         day.
   10.   On 13 August 2019, appellate defense counsel filed a novel pleading
         entitled, “No Authority to Represent Appellant,” citing her failure to
         locate or communicate with Appellant to establish an attorney-client
         relationship. Appellate defense counsel informed the Court she did
         not intend to file any substantive pleadings on behalf of Appellant;
         however, she did not file a motion to withdraw. Subsequent to that
         filing, appellate defense counsel has filed requests for enlargements
         of time to respond to issues specified for briefing by this Court, a
         substantive brief on the specified issues, a reply brief, and declara-
         tions.
   11.   Since June 2019, appellate defense counsel has exercised due dili-
         gence in trying to locate and communicate with Appellant by send-
         ing letters to his last-known address, calling telephone numbers as-
         sociated with Appellant, and trying to contact him by other similar
         means. The Government has provided appellate defense counsel all
         the contact information it has for reaching Appellant, who, due to
         his administrative discharge, is no longer subject to military orders
         or under any obligation to maintain updated contact information.




   7  For military counsel, the entry in the electronic database as the counsel of
record before this Court is considered the notice of appearance; any pleading with
counsel’s signature is also considered a notice of appearance. N-M Ct. Crim. App. R.
12.


                                         3
                 United States v. Harper, NMCCA No. 201900128
                          Published Order of the Court

                                   II. DISCUSSION

    Based on the approved sentence, Appellant’s case is by statute subject to
mandatory appellate review by this Court, which is empowered to “affirm
only such findings of guilty and the sentence or such part or amount of the
sentence, as it finds correct in law and fact and determines, on the basis of
the entire record, should be approved.” 8 As Appellant has not affirmatively
waived or withdrawn his case from such appeal, we continue to have
jurisdiction to conduct the required review of this case.
    As part of the appellate review process, Appellant is afforded representa-
tion by military appellate counsel. To that end, appellate defense counsel has
been properly detailed to represent Appellant before this Court and by
statute “shall” represent him where, as here, Appellant stated his under-
standing that he would be assigned such counsel in the event of such an
automatic appeal; was informed of his right to affirmatively waive such
appeal and has not done so; and the United States is represented by counsel.
Given these circumstances, particularly the lack of any affirmative action by
Appellant either to waive his right to representation or to withdraw his case
from appellate review, we conclude that appellate defense counsel not only
has the authority, but is statutorily required to represent Appellant, to the
best of her ability, notwithstanding her inability to locate or communicate
with him. Such representation is an inherent aspect of the appellate review
process Congress has mandated in Appellant’s case, which contemplates that
Appellant’s best opportunity for a thorough, searching review is to have legal
counsel championing his case.
    While we understand appellate defense counsel’s hesitancy to represent
Appellant without communicating with him, we agree with our two sister
service courts who addressed this issue in United States v. Jennings 9 and
United States v. Sink 10 and concluded that such communication, while
certainly preferable, is not legally required. We find support for such a
conclusion from our own decision in United States v. Thomas, 11 as well as
from our superior court in United States v. Miller, 12 United States v. Moss, 13
and United States v. Roach. 14




   8   Art. 66(c), UCMJ.
   9   49 M.J. 549 (C.G. Ct. Crim. App. 1998).
   10   27 M.J. 920 (A.C.M.R 1989).
   11   33 M.J. 768 (N-M. Ct. Crim. App. 1991).
   12   63 M.J. 452 (C.A.A.F. 2006).


                                           4
                 United States v. Harper, NMCCA No. 201900128
                          Published Order of the Court

    In United States v. Roach, our superior court provided a helpful overview
of the history of appellate representation by military counsel, which guides
our analysis of this issue:
            Although the military justice system incorporates civilian
         criminal law practices in important respects, Congress in the
         UCMJ has preserved many of the historic aspects of military
         law. Appellate review in the Courts of Criminal Appeals, for
         example, embodies the traditional affirmative responsibility of
         military reviewing authorities to conduct mandatory, de novo
         review of court-martial proceedings.
             In the Article III courts, the responsibility in a criminal
         case for initiating a timely appeal, paying costs and fees, ob-
         taining a transcript, and retaining counsel rests with the party
         seeking review. Provision of counsel on appeal at government
         expense and waiver of costs and fees occur only in the case of
         an indigent party. The courts of appeals on direct review focus
         on issues of law, with the burden generally on the appellant to
         demonstrate prejudicial error.
             Proceedings in the Courts of Criminal Appeals differ from
         civilian appeals in three significant respects. First, review is
         mandatory. The Judge Advocate General must submit each
         case of the type at issue in the present appeal [i.e., meeting a
         certain sentence threshold] to the court unless the accused af-
         firmatively waives the appeal.
             Second, the Judge Advocate General must provide govern-
         ment-furnished appellate counsel to the accused, regardless of
         indigence, on request of the accused, or when the government
         is represented on appeal by counsel. The report accompanying
         enactment of Article 70, UCMJ, observed that such representa-
         tion would assure that the accused’s case will be thoroughly
         considered.
             Third, the scope of review by the Courts of Criminal Ap-
         peals differs in significant respect from direct review in the ci-
         vilian federal appellate courts. In addition to reviewing the
         case for legal error in a manner similar to other appellate
         courts, Congress has provided the Courts of Criminal Appeals



   13   73 M.J. 64 (C.A.A.F. 2014).
   14   66 M.J. 410 (C.A.A.F 2008).


                                         5
                  United States v. Harper, NMCCA No. 201900128
                           Published Order of the Court

         with “plenary, de novo power of review” and the ability to
         “ ‘determine[ ], on the basis of the [entire] record’ which find-
         ings and sentence should be approved.” In that regard, the
         court conducts a de novo review under Article 66(c) of the facts
         as part of its responsibility to make an affirmative determina-
         tion as to whether the evidence provides proof of the appel-
         lant’s guilt of each offense beyond a reasonable doubt. The
         court also conducts a de novo review of the sentence under
         Article 66(c) as part of its responsibility to make an affirmative
         determination as to sentence appropriateness. The reports
         accompanying the enactment of the UCMJ identified the
         unique powers established under Article 66 as responding to
         significant deficiencies in the operation of the military justice
         system during World War II, particularly with respect to sen-
         tence disparities. 15
    Relying on the structure of the military appellate system and its own
prior case precedents, our superior court concluded that the Courts of
Criminal Appeals [CCAs] “have broad powers to issue orders to counsel to
ensure the timely progress of cases reviewed under Article 66.” 16 It further
found that “[i]rrespective of the reason for not filing a brief . . . when an
appellant has requested representation that does not appear to be forthcom-
ing, the court must ensure that military counsel are performing their primary
obligation to comply with court orders and protect the interests of [the]
client.” 17
    As our sister service courts have held, this obligation to protect the inter-
ests of the client applies even when an appellant has not formed an attorney-
client relationship with his appellate counsel. In United States v. Jennings,
the Coast Guard Court of Criminal Appeals declined to view an appellant’s
refusal to communicate with his appellate defense counsel as an effective
waiver of counsel, and instead allowed the assigned counsel to represent and
advocate for the appellant absent “an explicit statement from Appellant that
he does not desire such action on his behalf.” 18 As the court explained,
“although Appellant has not actively participated in his defense, we have




   15   Id. at 412-13 (alterations in original) (citations omitted).
   16   Id. at 418.
   17   Id.
   18   49 M.J. at 553.


                                              6
                   United States v. Harper, NMCCA No. 201900128
                            Published Order of the Court

completed our statutory review of the record with the assistance of a qualified
counsel who has been required to advocate issues in Appellant’s behalf.” 19
    The Army Court of Military Review reached a similar conclusion in Unit-
ed States v. Sink, 20 where the appellant was found guilty after a contested
trial, went absent before sentencing without ever affirmatively requesting
appellate counsel or even being informed of his Appellate Rights, and
remained absent for the appeal. There, as here, the assigned appellate
defense counsel asserted he was precluded from representing the appellant
before the CCA because he could not form an attorney-client relationship
with the absent appellant and the appellate defense counsel requested the
appeal be held in abeyance. 21 The court disagreed, relying on the mandates
contained in Article 70, UCMJ, and Rule for Courts-Martial 1202, determined
that even when not requested, the appellate defense counsel shall represent
the appellant before the court. 22 As the court found, “[t]his duty of represen-
tation can be met in most cases without appellant’s knowledge or active
participation.” 23 Thus, although the case was contested at trial, the court
concluded there was no need to hold the appeal in abeyance until the
appellant was found and that appellate defense counsel could proceed with
representing the appellant’s best interests and advocating on his behalf even
where no attorney-client relationship had been formed. 24
   These precedents are consistent with our own determination in United
States v. Thomas 25 that “appointment of appellate counsel is statutorily
mandated unless the appellant waives that right in writing after having been




    19   Id.
    20   27 M.J. 920 (A.C.M.R. 1989).
    21   Id. at 921.
    22 Id. at 921 n.1 (stating “[w]e read these rules to require appointment of appel-
late counsel, regardless of failure of the appellant to request counsel”); but see United
States v. Matthews, 19 M.J. 707 (A.F.C.M.R. 1984), pet. denied, 20 M.J. 146 (C.M.A.
1985) (holding an appellant, who was tried in absentia and not provided Appellate
Rights to request counsel, by being in absentia, waived the right to counsel on
appeal).
    23 Sink, 27 M.J. at 921 (citing United States v. Palenius, 2 M.J. 86, 92 (C.M.A.
1977)); see also United State v. Tilley, 26 M.J. 846, 847-848 n.1 (A.C.M.R. 1988)
(stating that because appellate review is limited to a review of a record of trial,
communication with the client is “of less consequence than at trial”).
    24   Sink, 27 M.J. at 921.
    25   33 M.J. 768 (N-M. Ct. Crim. App. 1991).


                                            7
                  United States v. Harper, NMCCA No. 201900128
                           Published Order of the Court

fully advised of the ramifications of such waiver by qualified counsel.” 26 As
there was no waiver of the right to appellate counsel here, we conclude that
appellate defense counsel’s statutory obligation to represent Appellant and
advocate on his behalf remains, despite the lack of communication between
attorney and client.
   We also reach this conclusion in reliance on additional precedent from our
superior court. First, in United States v. Miller, 27 the appellate defense
counsel sent a letter soliciting input from the appellant and requested a
response within 20 days. 28 The appellate defense counsel did not provide the
appellant 20 days and instead submitted an appellate brief with no assign-
ment of error. The Appellant never responded to the letter from his counsel.
While the court found that counsel should have waited the full 20 days before
submitting any brief on behalf of the appellant, the court neither addressed
nor found error due to any asserted lack of an attorney-client relationship or
the lack of effective communication between attorney and client. The court
simply reviewed for prejudice and found none.
    More importantly, in United States v. Moss, 29 our superior court found no
issue with appellate defense counsel representing an appellant before the
CCA, even though there had been no communication between attorney and
client. In Moss, the appellant was convicted and sentenced in absentia after a
contested trial but had elected representation by appellate defense counsel
prior to going absent. After the Army Court of Criminal Appeals [ACCA]
affirmed, it sent notice to Moss of his right to appeal to the Court of Appeals
for the Armed Forces [CAAF] to his last known address, as Moss was in a
fugitive status during the pendency of the appeal. The notice was ultimately
returned as undeliverable. 30 After arguing the case before the CCA, Moss’s
detailed appellate defense counsel appealed to CAAF but had no specific
authorization from Moss to do so, and it appears, as in this case, that the
appellate defense counsel had never spoken to Moss in connection with the
appeal to the CCA or the appeal to CAAF.
   CAAF determined that the request for representation by Moss contained
in the Appellate Rights statement gave rise to a “continuing duty” of
appellate defense counsel to represent him before the CCA even though Moss



   26   Id. at 773.
   27   63 M.J. 452 (C.A.A.F. 2006).
   28   Id. at 455.
   29   73 M.J. 64 (C.A.A.F. 2014).
   30   Id. at 66, 70.


                                       8
                     United States v. Harper, NMCCA No. 201900128
                              Published Order of the Court

was absent, tried in absentia, and had not communicated with the appellate
defense counsel for purpose of the appeal to the CCA. 31 While distinguishing
the counsel’s ability to affirmatively petition CAAF based on a difference in
the statutory language, CAAF specifically found that “appellate defense
counsel’s duty to represent Moss was predicated on her previously provided
limited authority [contained in the Appellate Rights statement] to appeal
only to the ACCA.” 32 Even with respect to petitioning CAAF, the court found
that
         [i]f the accused is not available and cannot be located within
         the time provided to file a petition for review before this court,
         “the attorney can and should proceed in accordance with the
         authority previously given by the accused and file such pro-
         ceedings as may be necessary to protect the interests of his cli-
         ent.” 33
Since Moss indicated a desire to be represented by appellate defense counsel
in the Appellate Rights statement if the sentence fell within the jurisdiction
for an automatic appeal, the court found that an attorney-client relationship
existed (limited in scope to representation before the CCA) despite the
inability of counsel to communicate with the fugitive appellant. 34
    We conclude likewise in this case, that notwithstanding her inability to
locate Appellant, appellate defense counsel is not only able to adequately
represent Appellant’s interests before this Court, but that she is legally
required to do so under the appellate review system enacted by Congress.
Without question, the best situation is for Appellant to have communications



   31   Id. at 68.
   32   Id. at 69 (quoting United States v. Larneard, 3 M.J. 76, 82 (C.M.A. 1977)).
   33   Id.
   34The decision echoed the court’s earlier decision in United States v. Larneard,
wherein the court stated:
         While it is the appellant’s decision whether to take an appeal to this
         Court, once he instructs his counsel to pursue the appeal, that attor-
         ney can and should do all that he may ethically do in furtherance of
         his client’s cause. Implicit in what we now decide is that the attorney
         may sign the petition and any ancillary papers as attorney for the ac-
         cused. In that regard, the attorney is acting as the agent for the ap-
         pellant pursuant to his client’s instruction and authorization to pur-
         sue the appeal. Execution of the pleadings only manifests the client’s
         decision to go forward with his case.
3 M.J. 76, 82 (C.M.A. 1977).


                                            9
                  United States v. Harper, NMCCA No. 201900128
                           Published Order of the Court

with his detailed appellate defense counsel. 35 However, that is not always
possible when appellants become unavailable—whether inadvertently or
intentionally—during the pendency of their appeal. Here, Appellant was
specifically advised and understood that unless he waived his appeal, his case
would receive automatic appellate review, during which he would be
represented by military counsel. Hence, absent evidence of any affirmative
election on his part to waive the appeal, the case shall continue with
mandatory appellate review, and appellate defense counsel must act in the
best interest of Appellant in effectuating his understanding both that
appellate review would take place and that he would be represented by
military counsel during such an appeal.
    Accordingly, we join in the view expressed by our sister service courts
that an appellate defense counsel’s obligation to protect the interests of his or
her client applies even when the appellant cannot be located for effective
communication with appellate counsel. It is nonsensical and against all
tenets of fundamental fairness within the military justice system for an
appellate defense counsel, during a mandatory appeal for which Appellant
has an acknowledged right to military counsel, to effectively forfeit that right
to counsel without Appellant’s knowledge or consent. Like the court in Sink,
we decline to hold the appeal in abeyance under such circumstances, when
Article 70, UCMJ, clearly requires that, even when not requested, the
detailed appellate defense counsel shall represent the appellant before the
CCA where, as here, the United States is represented by counsel. We further
agree that, although certainly not preferred, the duty of representation can
be met without Appellant’s active participation, and we conclude that
appellate defense counsel can proceed with representing Appellant’s best
interests and advocating on his behalf even when Appellant has not been
located for effective communication with his appellate counsel. While this
Court has the duty to conduct its own review of the case under Article 66,
UCMJ, we will not permit an appellate defense counsel, who has properly
been detailed to represent an appellant entitled to a mandatory appeal (and
who has made an appearance before this Court), to simply sit on the
sidelines.
   This view is consistent with the ethical rules outlined in the Navy Judge
Advocate General’s [JAG] Corps Rules of Professional Conduct. 36 As Rule



   35   See Miller, 63 M.J. at 456.
   36 Professional Conduct of Attorneys Practicing Under the Cognizance and
Supervision of the Judge Advocate General, Judge Advocate General Instruction
5803.1E, Principle II (Jan. 20, 2015) [JAG Rules of Professional Conduct].


                                       10
                   United States v. Harper, NMCCA No. 201900128
                            Published Order of the Court

1.2b explains, “the subject-matter scope of a covered attorney’s representa-
tion will be consistent with the terms of the assignment to perform specific
representational or advisory duties.” 37 Here, absent indication of any further
limitation, that scope embraces the same military appellate representation
Appellant was advised he would receive in the Appellate Rights statement
and indicated he understood before the military judge. Consistent with the
scope of such appellate representation, the ethical rules and commentary
thereto further provide:
          [A] covered attorney should pursue a matter on behalf of a cli-
          ent . . . and may take whatever lawful and ethical measures are
          required to vindicate a client’s cause or endeavor. 38
              ....
              Unless the relationship is terminated . . . and to the extent
          permitted by law and regulations, a covered attorney should
          carry through to conclusion all matters undertaken for a client.
          If a covered attorney’s representation is limited to a specific
          matter, the relationship terminates when the matter has been
          either concluded or resolved. 39
Together, these rules provide a general mandate that appellate defense
counsel must pursue his or her client’s best interests to the greatest extent
possible until the specific matter—in this case, Appellant’s mandatory appeal
before this Court—has been concluded or otherwise resolved. 40 Our research
into guidance from state bar association and judicial ethics opinions does not




    37   JAG Rules of Professional Conduct, r. 1.2b.
    38   JAG Rules of Professional Conduct, r. 1.3 cmt. 1.
    39   JAG Rules of Professional Conduct, r. 1.3 cmt. 3 (emphasis added).
    40 We note the agreement of legal commentators with this principle, that absent
indication an appellant wishes to withdraw an appeal, the appellate counsel detailed
to the case is ethically required to go forward with the representation. See, e.g., Major
Jay L. Thorman, Conquering Competency and Other Professional Responsibility
Pointers for Appellate Practitioners, 2011 Army Lawyer *4, *8-10 (November, 2011)
(discussing that for the common occurrence of missing clients during military
appeals, the rules of professional conduct generally require continued representation
by appellate counsel) (citations omitted); Restatement (Third) of the Law Governing
Lawyers § 14, cmt. g (Am. Law Inst. 2000) (“A lawyer may be required to represent a
client when appointed by a court or other tribunal with power to do so” and when a
“court appoints a lawyer to represent a person, that person’s consent may ordinarily
be assumed absent the person’s rejection of the lawyer’s services.”).


                                            11
                United States v. Harper, NMCCA No. 201900128
                         Published Order of the Court

indicate to the contrary. 41 Thus, particularly in light of the military case
precedents outlined above, we see no conflict between the rules of profession-
al conduct and appellate defense counsel’s duty to represent Appellant in his
mandatory appeal before this Court. 42

                                 III. CONCLUSION

    Thus, consistent with the military appellate system enacted by Congress,
the opinions of our superior and sister courts, and other pertinent legal and
ethical guidance, we hold that Appellant is entitled to continued appellate
representation by appellate defense counsel before this Court, notwithstand-
ing appellate defense counsel’s inability—after exercising due diligence—to
locate or communicate with him. As our superior court explained in Roach,
Appellant is simply in a better position with a sage advocate representing his


    41  See e.g., Burke v. Lewis, 122 P. 3d 533, 541-42 (Utah 2005) (holding if ordered
by competent authority, counsel can represent client); Alaska Bar Ass’n Ethics
Comm., Op. 2011-4 (2011) (concluding 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); Or. State Bar Ass’n Formal Op. No. 2005-33 (Aug.
2005) (in a civil matter, lawyer was not permitted to withdraw from an appeal
without first requesting leave to do so even when defendant client had fled the
country); R.I. Ethics Advisory Panel Gen. Info. Op. p No. 6 (Jun. 30, 1993) (lawyer
must exercise diligent efforts both to locate the missing client and to protect the
missing client’s interests); Colo. Bar Formal Ethics Op. 128, 2015 CO Legal Ethics
Ops. LEXIS 4 (Oct. 17, 2015) (stating while representation and communication are in
tension when there is no contact with client, “this tension should be resolved in favor
of protecting the absent client’s interests”; “[a]n attorney may not decline to advocate
on behalf of the client simply because the client does not attend court hearings or
provide direction to the attorney”; “an attorney must still exercise professional
judgment as to how to advocate for the client’s best interests”; “[i]n determining the
extent of actions a lawyer may take on behalf of an absent client, the primary
consideration should be avoiding prejudice to the client to the extent feasible”; and
“[i]f a lawyer reasonably believes the client has authorized the lawyer to take some
action and is relying on the lawyer to do so, the lawyer may act on behalf of the
client.”); see also N.C. State Bar 2003 Formal Ethics Op. 16 (adopted July 16 2004)
(discussing the representation of an absent respondent in a dependency proceeding).
    42Even if there were, we note that the underlying ethical principles on which the
professional conduct rules are based expound the view that the law, as we have
described above, generally prevails if there is a conflict between the law and the
ethical rules. See JAG Rules of Professional Conduct, Principle II (“Ethical rules
should be consistent with law. If law and ethics conflict, the law prevails unless an
ethical rule is constitutionally based.”).


                                          12
              United States v. Harper, NMCCA No. 201900128
                       Published Order of the Court

interests before this Court, as opposed to the Court performing its Article 66
review without the benefit of such advocacy.
   Therefore, it is on this 26th day of June, 2020,
ORDERED:
   That appellate defense counsel shall continue with her representation of
Appellant and file a Brief on his behalf no later than the 20 July 2020.


                                FOR THE COURT:




                                RODGER A. DREW, JR.
                                Clerk of Court




                                      13
