Can a lawyer refuse court appointments to defend indigent criminal defendants, and does declining violate the ethics rules?

Plain-English summary

Faced with a rural county crisis in which few attorneys would accept appointments to defend indigent criminal defendants, the Commission was asked whether attorneys with an active criminal practice, attorneys not active in criminal practice, and attorneys who retire from criminal practice may refuse such appointments.

The Commission first noted what it could not decide: it could not predict the outcome of a contempt proceeding for declining an appointment, and it declined to answer the legal question whether a court may constitutionally compel an attorney to serve at compensation the attorney considers economically unreasonable. On the ethics side, it explained that Bar Rule 3.10 (adopted 1984) provides that a lawyer in active practice "should" render unpaid public-interest legal service, and the Advisory Committee notes treat court-appointed cases at below-usual compensation as such service; so accepting criminal appointments is one way to satisfy the rule. But because the rule uses "should" rather than "shall" (language drawn from ABA Model Rule 6.1, whose drafters rejected a mandatory rule over enforceability and constitutional doubts), even a clear refusal to perform any public-interest service cannot be punished through discipline. The Commission added that under Rule 3.6(a)(1) a lawyer must not accept a matter he knows he is not competent to handle without associating competent co-counsel; an attorney asked to take an appointment he honestly believes is beyond his ability should make his misgivings known to the court, and could minimize risk by seeking appointment of experienced associate counsel, schooling himself, or formally associating with other counsel. Finally, deciding to stop accepting criminal cases does not automatically render a lawyer incompetent to try them; the relevant question is whether he is still competent to handle the particular case when asked to accept the appointment.

Currency note

This opinion was issued in 1986, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer be disciplined for refusing a court-appointed criminal case?

A: The opinion concluded no; because Rule 3.10 says a lawyer "should" perform public-interest service rather than "shall," even a refusal to do any such service cannot be punished through disciplinary proceedings.

Q: Is accepting criminal appointments a way to meet the pro bono rule?

A: The opinion concluded yes; the Advisory Committee notes treat court-appointed cases at below-usual compensation as public-interest legal service under Rule 3.10.

Q: Must a lawyer accept an appointment in an area beyond his competence?

A: The opinion concluded that under Rule 3.6(a)(1) a lawyer should not handle a matter he knows he is not competent to handle without associating competent co-counsel; he should make his misgivings known to the court.

Q: Does retiring from criminal practice excuse a lawyer from appointments?

A: The opinion concluded that deciding to stop taking criminal cases does not automatically make a lawyer incompetent; the question is whether he is still competent to handle the particular case when appointed.

Background and rules framework

The opinion interprets former Maine Bar Rule 3.10 (public interest legal service), which corresponds to ABA Model Rule 6.1 (voluntary pro bono service), and Rule 3.6(a)(1) (not undertaking a matter beyond one's competence without associating competent counsel), which corresponds to ABA Model Rule 1.1 (competence). The opinion expressly leaves to the courts the legal question of compelled appointments and contempt.

Citations and references

Rules of Professional Conduct:

• Model Rule 6.1 (voluntary pro bono service); Model Rule 1.1 (competence)
• Maine Bar Rule 3.10; Rule 3.6(a)(1)

Cases:

• State v. Gasen, 356 N.E.2d 505 (Ohio App. 1976); Easley v. State, 334 So.2d 630 (Fla. Dist. Ct. App. 1976)

Other opinions cited:

• ABA Informal Op. 1216 (1972); Alaska Bar Assoc. Op. 82-1

See also

• ABA Formal Op. 470: Judges Encouraging Pro Bono
• Maine Ethics Op. 190: Pro Bono Fee and Confidences

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91189

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: December 15, 1986

Question

The Commission is advised that a crisis has developed in a rural county because of the relatively small number of attorneys who are willing to accept court appointments to defend indigent criminal respondents. The Commission has been asked:

(1) May attorneys who have an active criminal practice refuse to accept court appointments in criminal cases?

(2) May attorneys who are not actively involved in criminal practice refuse to accept court appointments in criminal cases?

(3) May attorneys retire from criminal practice and thereafter refuse to accept appointments in criminal cases?

Opinion

It should be noted at the outset that the Commission has no jurisdiction to resolve some of the issues implicit in the questions which have been posed. Although the Commission can offer guidance regarding a lawyer's ethical obligations under the Maine Bar Rules with respect to accepting appointments in criminal cases, it cannot predict the outcome of a court proceeding in which an attorney is charged with contempt of court for declining to accept an appointment to defend a criminal respondent. Moreover, whether a court can constitutionally compel an attorney to act as defense counsel in a criminal case at a level of compensation which the attorney believes to be economically unreasonable is a question of law which the Commission declines to answer.

Although the Commission is unable to answer the questions presented in terms of the legal consequences of refusing to accept a court appointment, it can address some of the ethical ramifications raised by the inquiries. Quite apart from the power of a court to impose sanctions for refusing to represent an indigent criminal defendant, an attorney has an obligation to provide public interest legal services imposed by Bar Rule 3.10, adopted in 1984. The rule states that:

3.10 Public Interest Legal Service

A lawyer engaged in active practice in the State of Maine should render unpaid public interest legal service of a type and amount reasonable in all the circumstances. For purposes of this rule, "unpaid public interest legal service" means

(1) the provision of professional services at no fee or a reduced fee to persons of limited means;

(2) participation in a program under which free legal services to the indigent are provided by individual lawyers upon referral from a central agency;

(3) the provision of professional services at no fee or a reduced fee to charitable organizations that provide services or support for the indigent; or

(4) service in activities for improving the law, the legal system, or the legal profession.

The Advisory Committee's notes indicate that "public interest legal services" include the performance of legal services in court-appointed cases where the attorneys' compensation is less than he would usually charge. 467 A.2d at p. LIX. Thus it is apparent that the acceptance of court appointments in criminal cases is one of the ways in which an attorney can satisfy his generalized ethical obligations under the rule.

It should be noted, however, that even if an attorney clearly violates Rule 3.10 by refusing to perform any public interest legal services whatever, his ethical shortcomings cannot be punished through disciplinary proceedings under the Maine Bar Rules. This follows from the use of the verb "should" rather than "shall" in the first sentence of the rule. See Advisory Committee notes, p. LX. The wording was taken from Rule 6.1 of the A.B.A. Model Rules of Professional Conduct whose draftsmen rejected a mandatory statement of the rule because of doubts about its enforceability and constitutionality. Id. at p. LXII.

The questions which prompted this opinion also present an underlying issue of whether an attorney must undertake a criminal appointment in a case which he believes to be beyond his professional competence. Rule 3.6(a)(1) enjoins a lawyer not to accept a legal matter which he knows he is not competent to handle without first associating himself with competent co-counsel.

When asked to accept a court appointment which he honestly believes is beyond his ability, an attorney should first make his misgivings know to the court. If the judge remains unmoved, the lawyer will be confronted with the conflict between his ethical obligation under the Bar Rules and the risk of judicial censure for refusing to accept the case.[1]

It would seem unlikely that a grievance commission would discipline an attorney for undertaking a matter, even though he did so in an incompetent manner, where he was acting pursuant to a court order after disclosure of his lack of expertise. Any risk that this might occur could be minimized if the lawyer requested the judge to appoint experienced associate counsel to assist him,[2] schooled himself appropriately in the subject matter through the use of written materials or by consulting informally with more experienced practitioners, or formally associated himself with other counsel.[3]

The third question posed to the Commission is whether an attorney can "retire from criminal practice and refuse to take court appointments in criminal cases." Obviously, an attorney is free to organize his law practice as he pleases. As Rule 3.10 makes clear, a lawyer can satisfy his obligation to provide free legal service in ways having nothing to do with criminal practice.

It does not follow, however, that an attorney who decides not to accept any more criminal cases automatically becomes incompetent to try them as court-appointed counsel. Thus the relevant ethical question in this regard is whether an attorney is still competent to handle the criminal case in question at the time he is requested to accept the court appointment whether or not he is still accepting criminal cases for paying clients.[4]

Footnotes

[1] See, e.g., State v. Gasen, 48 Ohio App.2d 191, 356 N.E.2d 505 (Hamilton Cty. Ct. of App. 1976); Easley v. State, 334 So.2d 630 (Fla. Dist. Ct. of App. 1976).

[2] This solution was suggested by the A.B.A. Standing Committee on Professional Ethics in Inf. Op. #1216 (1972).

[3] Compare Me. Bar R. 3.6(a)(1). See also Alaska Bar Ass'n op. #82.1 in which it was held that an inexperienced lawyer would nevertheless be expected to accept criminal appointments and would be required to retain associate counsel at his own expense if he could not otherwise become competent to undertake the matter.

[4] As pointed out above, our response is limited to the application of the Bar Rules and should not be understood as being predictive of the result which a court would reach in imposing sanctions on an attorney for refusing to accept a court appointment.