Must a lawyer accept a court appointment to represent an indigent criminal defendant, and can courts appoint counsel from outside the county or set the compensation?

Currency note

This opinion was issued in 1970, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion answers questions it characterized as primarily legal, referencing former Rule 1 (commending the ABA Code of Professional Responsibility) and ABA Ethical Consideration 2-29, the ancestor of current Rule 6.2 (Model Rule 6.2) on accepting court appointments. Subsequent rule amendments, statutes, and decisions may have changed the analysis, and the opinion itself notes the questions turn on then-current statutes (e.g., Penal Code section 987). Treat this page as historical context, not current guidance. Verify against current rules and statutes before relying on any specific rule or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The inquiry posed three questions: whether an attorney must accept court appointments in criminal cases when the court declines to appoint other competent in-county attorneys; whether a court may appoint out-of-county attorneys who regularly serve or litigate in the county; and whether an attorney must accept an appointment to represent an indigent defendant regardless of the adequacy of compensation and its effect on the lawyer's private practice. The committee said that, while posed as ethical, the answers were primarily legal and long settled by the courts.

On the first question, the committee stated that the court has authority to appoint counsel for indigents (Penal Code section 987, subdivision (a)) and the attorney is obliged to accept the appointment (Business and Professions Code sections 6103, 6068, subdivision (h)). It added that the competency of other counsel is for the court to decide and noted that, at the time, California had no specialized practice except patents and copyrights, so all practicing attorneys were deemed competent to handle any type of practice.

On the second question, the committee stated that courts not only have the power but do appoint out-of-county attorneys, with the practical and budgetary aspects left to the appointing court's discretion. On the third question (adequacy of compensation, which the committee called the crux of the query), it observed that the inquirer supplied no facts showing inadequacy, and that the remedy is legal, such as a petition for writ of mandate to review an abuse of discretion, citing Halpin v. Superior Court and Hill v. Superior Court for the criteria used to assess adequacy. The committee quoted ABA Ethical Consideration 2-29 (a lawyer should not seek to be excused from an appointment except for compelling reasons, which do not include repugnance of the subject matter or belief in the client's guilt).

Common questions

Q: Must a lawyer accept a court appointment to represent an indigent criminal defendant?

A: Yes. The committee stated that the court has authority to appoint counsel (Penal Code section 987(a)) and the attorney is obliged to accept, citing Business and Professions Code sections 6103 and 6068(h).

Q: Can a court appoint counsel from outside the county?

A: Yes. The committee stated that courts have the power to, and do, appoint out-of-county attorneys, with the practical and budgetary considerations left to the appointing court's discretion.

Q: Can a lawyer decline an appointment because the pay is inadequate?

A: The committee treated this as a legal question, not an ethical exemption. It said the remedy for inadequate compensation is legal, such as a petition for writ of mandate to review an abuse of discretion, and quoted ABA EC 2-29 that a lawyer should not seek to be excused except for compelling reasons.

Background and rules framework

The opinion addresses questions it characterized as primarily legal, citing Penal Code section 987 and Business and Professions Code sections 6068(h) and 6103, and invoking former Rule 1 (commending the ABA Code) and ABA Ethical Consideration 2-29. The duty to accept court appointments is now addressed by Model Rule 6.2 and California Rule 1.16's framework on declining or terminating representation.

Citations and references

Rules of Professional Conduct:

• Former California Rule 1
• ABA Code of Professional Responsibility, Ethical Consideration 2-29
• Current analog: Model Rule 6.2

Statutes:

• California Penal Code section 987, subdivision (a)
• California Business and Professions Code sections 6068, subdivision (h), and 6103

Cases:

• Halpin v. Superior Court (1966) 240 Cal.App.2d 701 [49 Cal.Rptr. 857]
• Hill v. Superior Court (1956) 46 Cal.2d 169 [293 P.2d 10], criteria for adequacy of appointed-counsel compensation

See also

• CA Ethics Op. 1970-22: Conflicts in Joint Criminal Defense

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1970-23.htm

Original opinion text

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

1. Is an attorney under an obligation to accept court appointments in criminal cases when the court declines to appoint other attorneys who have their offices in the county and who are otherwise competent?

2. May the court appoint attorneys to handle indigent criminal cases when they do not have their offices within the county but regularly:

(a) Render legal services of a general nature to residents of the county; or

(b) Litigate criminal matters on a regular basis in the courts of said county; or

(c) Litigate civil cases on a regular basis before the courts of said county.

3. Is an attorney obliged in all criminal cases to accept an appointment to represent an indigent defendant irrespective of the adequacy of the compensation and without regard to the effect such appointments will have on his ability to conduct his private practice.

While the questions are posed as ethical, the answers are primarily legal and have been long settled by the courts.

1. The court has the authority to appoint counsel for indigents (Pen. Code, 987, subd. (a)) and the attorney is obliged to accept such appointment. Bus. & Prof. Code Sections 6103-6068, subd. (h).)

[The question of competency of other counsel in the county is for the court to decide. As the present question is posed, the inference is that the court has already concluded other counsel is not competent. The basis of this conclusion is beyond the purview of this opinion, since California has no specialized practice except Patents and Copyrights, and all practicing attorneys are deemed competent to handle any type of practices.]

2. The courts not only have the power, but do, in fact, appoint attorneys from out of the county. The practical, economical and budgetary aspects which might preclude such appointment are left to the sound discretion of the appointing court.

3. The answer to question number 3 is really the crux of the entire query and addresses itself to adequacy of compensation. The questioner has not supplied the committee with any facts indicating inadequacy of compensation. He has made a statement that compensation to be provided will be inadequate. His remedy, again, is a legal one, perhaps by a petition for a writ of mandate for review of abuse of discretion by the appointing court. See

Halpin v. Superior Court (1966) 240 Cal. App. 2d 701, 705 [49 Cal. Rptr. 857], which cites Hill v. Superior Court (1956) 46 Cal.2d 169, 175, [293 P.2d 10] and sets forth the criteria to be applied in determining adequacy of compensation: "(3) The criteria to be used in determining whether or not a court exercised its discretion in awarding an unreasonably small sum are the continuing duty of counsel to the 'defenseless' (Bus. & Prof. Code, 6068, subd. (h)); the statutory provisions of other jurisdictions for compensation; and the general level of compensation paid to public officers in prosecuting and defending criminal proceedings. (Hill v. Superior Court, (1956) 46 Cal. 2d 169, 175.)"

American Bar Association Code of Professional Responsibility, Ethical Consideration 2-29 states:

"When a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, he should not seek to be excused from undertaking the representation except for compelling reasons. Compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case."

[PUBLISHER'S NOTE: Since 1972, the Pilot Program on Legal Specialization ordered by the California Supreme Court has provided for certified specialties in the following fields: criminal law, family law, tax law, and workers' compensation.]