What should a lawyer who is not competent in criminal matters do when a court appoints him to defend an indigent criminal defendant?

Plain-English summary

The inquiry asked whether an attorney who is not competent to handle criminal cases may accept appointment to one. The opinion traced the Board's earlier guidance: Formal Ethics Opinion 81-F-24 (1981) said an attorney not competent to handle criminal cases should respectfully decline such appointments, and Formal Ethics Opinion 83-F-47 (1983) said that, while no rule compels representation of the poor, an appointed attorney should not seek to be excused except for compelling reasons, and that the duty may be delegated to another consenting attorney with the court's prior knowledge and consent. It set out the relevant provisions: DR 6-101(A)(1) (a lawyer shall not handle a matter he knows or should know he is not competent to handle), and EC 2-16, 2-25, 2-26, 2-29, and 2-30 on making legal services available, not lightly declining employment, not seeking to be excused except for compelling reasons, and not accepting employment when unable to render competent service.

Because of state funding shortfalls in the indigent criminal-defense program and the resulting practice of random appointment of all lawyers, the Board revisited 81-F-24 and 83-F-47. It recognized the courts' affirmative duty to provide indigent defendants reasonably effective assistance of counsel under the Sixth Amendment (Strickland v. Washington), and noted that in United States v. Cronic the Supreme Court held the Sixth Amendment is not violated merely because a lawyer unfamiliar with criminal law is appointed to a complex case, with a breach shown only on a breakdown of the adversarial process or specific errors; the Court left to the trial courts' supervisory powers whether to take greater precautions about counsel qualifications.

Synthesizing these authorities, the opinion advised that, to assist the courts in exercising their supervisory powers, an appointed attorney who feels not competent to render reasonably effective assistance should fully explain his background and experience to the court and respectfully request to be recused. If relief is not granted and grounds and procedures for review exist, the attorney should seek review. If the court's decision is final or is sustained on review, the attorney should take all necessary steps to render reasonably effective assistance to the indigent defendant, and in all instances should comply with the court's final directives, seeking to be excused only for compelling reasons.

Currency note

This opinion was issued in 1992, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility (including DR 6-101(A)(1) and the Ethical Considerations) on which it relied, and before the ABA's 2002 Ethics 2000 revisions. The modern analogs are RPC 1.1 (competence) and RPC 6.2 (accepting appointments). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance, and verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could a Tennessee lawyer simply refuse a criminal appointment because he lacked criminal experience?

A: Per the opinion, not by simply refusing. The lawyer should explain his background to the court and request recusal, seek review if available, and, if the appointment stood, take all necessary steps to render reasonably effective assistance.

Q: Did a lack of criminal experience make the appointment unconstitutional?

A: Per the opinion's reading of United States v. Cronic, no, not automatically; the Sixth Amendment is breached only on a breakdown of the adversarial process or specific errors of counsel, though courts may use their supervisory powers to ensure qualified counsel.

Q: When may an appointed lawyer seek to be excused?

A: Only for compelling reasons. The opinion reaffirmed EC 2-29 that compelling reasons do not include the repugnance of the subject matter, the identity of a person involved, or a belief that the defendant is guilty.

Background and rules framework

The opinion interpreted DR 6-101(A)(1) (competence) and EC 2-16, 2-25, 2-26, 2-29, and 2-30 (availability of legal services and accepting appointments), informed by the Sixth Amendment standards of Strickland v. Washington and United States v. Cronic. The modern analogs are Model Rule 1.1 / Tennessee RPC 1.1 (competence) and Model Rule 6.2 / Tennessee RPC 6.2 (accepting appointments).

Citations and references

Rules of Professional Conduct (former Code):

• DR 6-101(A)(1) (not handling a matter one is not competent to handle). Modern analog: Model Rule 1.1 / Tennessee RPC 1.1
• EC 2-29, EC 2-30 (accepting appointments; not accepting when unable to render competent service). Modern analog: Model Rule 6.2 / Tennessee RPC 6.2

Cases:

• Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), Sixth Amendment effective-assistance standard
• United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984), appointment of counsel unfamiliar with the field

Other opinions cited:

• Tennessee Formal Ethics Opinion 81-F-24 (1981) and Formal Ethics Opinion 83-F-47 (1983) (declining or being excused from criminal appointments)

See also

• Tenn. Ethics Op. 81-F-24: Declining a Criminal Appointment for Lack of Competence
• Tenn. Ethics Op. 83-F-47: Delegating a Court Appointment
• Tenn. Ethics Op. 96-F-140: Appointed Counsel for a Minor (Declining Appointments)
• Okla. Bar Ethics Op. 256: Refusing Indigent Appointments
• ABA Formal Op. 06-441: Excessive Indigent-Defense Caseloads

Source

• Landing page: https://www.tbpr.org/ethic_opinions/92-f-127

Original opinion text

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

92-F-127 - Avoiding appointment in criminal cases

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 92-F-127

Inquiry is made concerning the propriety of an attorney who is not competent to handle criminal cases accepting representation in a criminal case.

In 1981 the Board of Professional Responsibility issued Formal Ethics Opinion 81-F- 24 stating that an attorney who is not competent to handle criminal cases should respectfully decline such appointments by the Court.

The Board addressed the matter again in 1983, stating in part in Formal Ethics Opinion 83-F-47;

...no disciplinary rule of the Code compels or makes it mandatory for an attorney to represent the poor. However, when the courts are the impetus for representation then special affirmative duties arise.

The attorney who is appointed by the court to defend an indigent criminal defendant should not seek to be excused from undertaking the representation except for compelling reasons. However, in such instances the duty of the attorney may be delegated or assigned to another consenting attorney with the prior knowledge and consent of the court.

The applicable Disciplinary Rules and Ethical Considerations of the Code of Professional Responsibility are

Disciplinary Rule 6-101(A)(1)states in part:

A lawyer shall not handle a legal matter which he knows or should know that he is not competent to handle...

EC 2-16

...persons unable to pay a reasonable fee should be able to obtain necessary legal services, and lawyers should support and participate in ethical activities designed to achieve that objective.

EC 2-25

Historically, the need for legal services of those unable to pay reasonable fees has been met in part by lawyers who donated their services or accepted court appointments on behalf of such individuals. The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer, but the efforts of individual lawyers are often not enough to meet the need. Thus it has been necessary for the profession to institute additional programs to provide legal services. Accordingly, legal aid offices, lawyer referral services and other related programs have been developed, and others will be developed, by the profession. Every lawyer should support all proper efforts to meet this need for legal services.

EC 2-26

...in furtherance of the objective of the bar to make legal services fully available, a lawyer should not lightly decline proffered employment. The fulfillment of this objective requires acceptance by a lawyer of his share of tendered employment which may be unattractive both to him and the bar generally.

EC 2-29

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.

EC 2-30

Employment should not be accepted by a lawyer when he is unable to render competent service...

The budget shortfalls experienced by the State of Tennessee in funding the statewide indigent criminal defense program and the resulting practice by the trial courts in making random appointments of all lawyers has given the Board cause to revisit Formal Ethics Opinions 81-F-24 and 83-F-47, and to provide further ethical guidance.

It is recognized that the courts have an affirmative duty to indigent criminal defendants of due process, and under the Sixth Amendment to provide reasonably effective assistance of counsel. Strickland v. Washington, U.S. , 104 S.Ct. 2052 (1984). The United States Supreme Court in Strickland remarked that the purpose of the Sixth Amendment,

"...is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to assure that criminal defendants receive a fair trial. ___ U.S.__ at, 104 S.Ct at 2065.

In United States v. Cronic, U.S. , 104 S.Ct 2039 (1984) the Supreme Court held that the Sixth Amendment guarantee of effective assistance of counsel is not violated simply because a real estate lawyer, totally unfamiliar with criminal law and trials, is assigned to provide representation in a complicated fraud prosecution. The Sixth Amendment is breached, according to the Court, only if there is a breakdown of the adversarial process and specific errors of trial counsel are shown. The Court further explained in a footnote,

We consider in this case only the commands of the Constitution. We do not pass on the wisdom or propriety of appointing inexperienced counsel in a case such as this. It is entirely possible that many courts should exercise their supervisory powers to take greater precautions to ensure that counsel in serious criminal cases are qualified... We address not what is prudent or appropriate, but only what is constitutionally compelled. U.S. at , 104 S.Ct. 2050 n. 38.

In order to assist the courts in the exercise of their supervisory powers in appointing counsel those appointed attorneys who feel that they are not competent to render reasonably effective assistance to assure that indigent defendants receive a fair trial should fully explain their background and experience to the court and respectfully request to be recused. If relief is not granted and there are grounds and procedures available for a review then the attorney should seek a review of the decision. In the event the decision of the court is final or sustained upon review then the attorney should take all necessary steps to render reasonably effective assistance to the indigent defendant. Attorneys should not seek to be excused from undertaking the representation of court appointed cases except for compelling reasons, and should in all instances comply by the final directives of the court.

This 13th day of March, 1992.

ETHICS COMMITTEE

W. J. Michael Cody

Thomas H. Rainey

Walker T. Tipton

APPROVED AND ADOPTED BY THE BOARD