If a lawyer appointed to a capital case believes in good faith he is not competent to handle it, can he challenge the appointment or refuse to serve, and does his malpractice insurer's concern create a conflict?

Plain-English summary

The opinion addressed a lawyer with limited criminal experience, practicing in a rural area without adequate research resources, who was appointed lead counsel for an indigent defendant in a first-degree murder case. He moved to withdraw on the ground that he was not competent for a capital case; after a hearing the court found him competent and denied the motion, but he continued in good faith to believe he was not competent.

The opinion concluded that the lawyer may take additional steps to challenge the appointment. Under Rule 6, a lawyer shall not handle a matter he knows he is not competent to handle unless he can associate an experienced lawyer; a lawyer who honestly and reasonably concludes he is not competent must at a minimum advise the court, as this lawyer did. If the court finds him competent but he in good faith still believes he is not and that his representation would harm the client, it is not unethical to challenge the appointment by appropriate procedures, including a motion to set the appointment aside in superior court, a petition for certiorari, or an appeal of a contempt ruling, provided he acts in good faith and not merely to avoid inconvenience or expense (Rule 7.2(a)(1)). If the court still refuses to release him, it is not unethical to proceed without further challenge. The opinion also concluded that, after unsuccessfully challenging the appointment through reasonably available procedures, a lawyer who continues to believe he is not competent may ethically refuse to serve and accept the court's sanction (Rule 6(a)(1)). Whether he is appointed lead counsel or second chair to an experienced lawyer is relevant to competence, because Rule 6 lets a lawyer treat himself as competent if he associates an experienced lawyer, so a "second chair" could not reasonably conclude he is incompetent. Finally, the malpractice insurer's concern does not create a disqualifying conflict, because the lawyer's responsibility to the client should not be affected by the carrier's concern (Rule 5.1(b)); if he proceeds, he must zealously represent the client, take steps to make himself competent (associating or seeking appointment of experienced counsel, educating himself, using the appellate defender's resource center, traveling to a law library), and may not deliberately prejudice the client by approaching the case to document his own incompetence (Rule 7.1(a)(3)). If he later concludes he may have made prejudicial errors, he must advise the defendant that mistakes may have harmed the case and that the defendant should consult independent counsel (Rule 6(b)(2)). The opinion expressly declined to address the legal question whether a lawyer can be compelled to serve, or the constitutional propriety of appointing inexperienced lawyers in capital cases.

Currency note

This opinion was issued in 1995, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. 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: What must an appointed lawyer who believes he is not competent do first?

A: Advise the court. The opinion concluded a lawyer who honestly and reasonably concludes he is not competent has at a minimum a duty to tell the court of his perceived lack of competency.

Q: Can the lawyer keep challenging the appointment after the court finds him competent?

A: Yes, in good faith. The opinion concluded he may use appropriate procedures, such as a motion to set aside the appointment, a certiorari petition, or appeal of a contempt ruling, provided he acts in good faith and not to avoid inconvenience or expense.

Q: Can he refuse to serve and accept sanction?

A: Yes, after exhausting challenges. The opinion concluded that, having unsuccessfully challenged the appointment through reasonably available procedures and still believing he is not competent, the lawyer may ethically refuse to serve and accept the court's sanction.

Q: Does his malpractice insurer's concern create a conflict?

A: No. The opinion concluded the carrier's concern does not create a disqualifying conflict, because the lawyer's duty to the client is not limited by it, and he may not approach the case to build a record of his own incompetence.

Background and rules framework

The opinion applied North Carolina's then-current Rule 6, the competence provision (corresponding to Model Rule 1.1), including Rule 6(a)(1); Rule 7.2(a)(1) on acting in good faith; and Rule 5.1(b) on personal-interest conflicts. The analysis of accepting or declining an appointment parallels Model Rule 6.2 on accepting appointments. The opinion treated association of experienced counsel as the path to competence in an unfamiliar area.

Citations and references

Rules of Professional Conduct:

• MR 1.1 (competence)
• MR 6.2 (accepting appointments)
• North Carolina Rule 6, Rule 6(a)(1), Rule 7.2(a)(1), Rule 5.1(b)

See also

• NC Ethics Op. RPC 198: responsibilities of stand-by counsel in a capital case
• NC Ethics Op. RPC 221: receipt of evidence of a crime

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-199/

Original opinion text

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

Inquiry #1:

Attorney A was appointed by a district court judge to serve as lead counsel in defending an indigent defendant ("Defendant") against a charge of first-degree murder. Attorney A is licensed to practice in North Carolina but has limited experience in representing criminal defendants. He practices law in a rural area without a sufficient library and other resources appropriate for the ongoing legal research necessary for a capital case. Attorney A believes he is not competent to represent a client in a capital murder case. He has never been on any court list for appointment to represent indigent defendants.

Attorney A filed a motion to withdraw with the district court which advised the court that he did not believe he was competent to provide legal representation in such a matter. After a hearing, the district court concluded that Attorney A is competent and denied the motion to withdraw. Attorney A in good faith still believes that he is not competent to represent Defendant. Is it ethical for Attorney A to take additional steps to legally challenge the appointment?

Opinion #1:

Yes. Rule 6 of the Rules of Professional Conduct provides that a lawyer shall not handle a legal matter that he knows he is not competent to handle unless he can associate an experienced lawyer to assist him. If a lawyer who is appointed to represent an indigent criminal defendant honestly and reasonably concludes that he is not competent to represent the client, at a minimum, he has a duty to advise the court of his perceived lack of competency, as Attorney A did in the preceding inquiry. If the court determines that the lawyer is competent but the lawyer in good faith continues to believe that he is not competent and his representation would be harmful to the client's interests, it is not unethical for the lawyer to challenge the appointment by appropriate legal procedures, including but not limited to, making a motion to have the appointment set aside in superior court, filing a petition for certiorari with the appellate courts or appealing a contempt ruling for refusal to serve. If the lawyer controverts his appointment through such legal proceedings, he must be acting in good faith and not merely to avoid the inconvenience or expense of the appointment.See Rule 7.2(a)(1).

Although the lawyer has an initial duty to advise the court that he believes he is not competent to handle a matter, if the court nevertheless determines that the lawyer is competent and refuses to release the lawyer from the appointment, it is not unethical for the lawyer to proceed with the representation on this basis without further challenge to the appointment.

Inquiry #2:

Is it ethical for Attorney A to refuse to serve as appointed counsel for Defendant and accept the court's sanction?

Opinion #2:

Yes, if Attorney A has unsuccessfully challenged the appointment through reasonably available legal procedures and he continues, as a matter of professional responsibility, to believe that he is not competent to serve as legal counsel to Defendant, it is not unethical for Attorney A to refuse to serve and to accept the court's sanction. See Rule 6(a)(1).

Inquiry #3:

Would the responses to inquiry #1 or inquiry #2 be different if Attorney A is appointed to assist another experienced lawyer who will serve as lead counsel?

Opinion #3:

Yes. Whether Attorney A is appointed lead counsel or appointed to assist an experienced lawyer would be relevant to the assessment of Attorney A's competency to represent Defendant. As noted in Rule 6, a lawyer may consider himself competent to handle a legal matter he would otherwise not be competent to handle if he associates an experienced lawyer to assist him with the matter. If Attorney A is serving as "second chair" to an experienced lawyer, it would not be reasonable for him to conclude that he is not competent to handle the matter.

Inquiry #4:

Attorney A's malpractice insurer has expressed concern that Attorney A's representation of Defendant in the capital case may present an unreasonable risk of exposure to a malpractice claim, particularly since it would require Attorney A to practice in an area outside his chosen areas of concentration. If Attorney A represents Defendant, he believes he should make a record that will document his own lack of competence in order to preserve a due process or other constitutional challenge to the state system of appointing attorneys for indigent defendants charged with capital crimes. By so doing, Attorney A fears he may be building a civil case against himself for malpractice if Defendant is convicted of first-degree murder or some lesser charge. Does Attorney A have a conflict of interest?

Opinion #4:

No. The fact that Attorney A's malpractice insurer has expressed concern regarding Attorney A's representation of Defendant does not create a disqualifying conflict of interest because Attorney A's responsibility to his client should not be limited or affected by his malpractice carrier's concern. See Rule 5.1(b). If Attorney A accepts the appointment of the court and proceeds with the representation, Attorney A has a duty to zealously represent his client to the best of his ability. See Canon VII. This includes taking whatever steps are necessary to make himself competent to handle the case including, but not limited to, attempting to associate an experienced lawyer or seeking the court appointment of an experienced lawyer to assist him, educating himself about the relevant law, utilizing available resources such as the resource center in the office of the appellate defender (which provides assistance to counsel for those accused of capital crimes), traveling to an adequate law library, etc. Attorney A may not pursue a course of conduct that will intentionally prejudice or damage Defendant during the course of the professional relationship. See Rule 7.1(A)(3). This would include approaching the representation from the perspective that his job is to document his own incompetence.

If Attorney A represents Defendant to the best of his ability, but concludes that he may have committed an error or errors that were prejudicial to Defendant's case, he must advise Defendant that mistakes were made that may have been harmful to Defendant's case and that it is in Defendant's best interest to consult independent counsel regarding his legal rights. See Rule 6(b)(2)(1) and (2).

Note: Whether a lawyer can be required, over his objection, to represent a criminal defendant if he has not voluntarily placed his name on a list for court appointments is a legal issue which the Ethics Committee has no authority to address. Moreover, no opinion is expressed herein as to the constitutional propriety of appointing inexperienced lawyers to represent indigent criminal defendants in capital cases.