Can a Texas lawyer be disciplined for refusing a mandatory court appointment to defend an indigent criminal client when the lawyer has no criminal experience?

Plain-English summary

Attorney A, a licensed but non-practicing Texas lawyer working as a bank loan officer who had never handled a criminal matter in ten years, was placed on a local bar association's list to receive mandatory court appointments to defend indigent criminal defendants. The association's "Plan" required all attorneys residing in the county to defend indigent persons, with five categories of exemption, including paying $400 per year. The questions were whether Attorney A could be disciplined for refusing the appointment on competency grounds, and whether the association had to provide a competency-based exemption rather than a fee-in-lieu.

The Committee declined to reach the structural questions. It explained that the Professional Ethics Committee does not have the power to tell a bar association or court how to handle criminal appointments, or whether a bar association may assess a fee in lieu of accepting them, because those are questions of law outside the scope of its authority. It also noted that the Disciplinary Rules define proper conduct for purposes of discipline but do not prescribe disciplinary procedures or penalties, define civil-liability standards, or augment a lawyer's substantive legal duties.

On the conduct the rules do address, the Committee noted that Rule 6.01 provides a lawyer shall not seek to avoid appointment by a tribunal except for good cause, and that Comment 1 to Rule 6.01 recognizes good cause to decline representation of a person who cannot afford counsel or whose cause is unpopular. It added that good cause exists if the lawyer cannot handle the matter competently (citing Rule 1.01). Finally, it noted that under Rule 8.04, Comment 6, a lawyer may refuse to comply with an obligation imposed by law, including regulations of the practice of law, upon a good-faith belief, openly asserted, that no valid obligation exists.

Currency note

This opinion was issued in 1991, under the Texas Disciplinary Rules of Professional Conduct that took effect January 1, 1990. Texas did not adopt the ABA's Ethics 2000 revisions; its rules have been amended only piecemeal since, including the comprehensive 2021 revisions adopted by Texas Supreme Court order. 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 appointment to a criminal case?

A: Per the opinion, Rule 6.01 provides that a lawyer shall not seek to avoid a tribunal appointment except for good cause. The Committee noted that good cause exists where the lawyer cannot handle the matter competently under Rule 1.01.

Q: Did the Committee decide whether a bar association can require appointments or charge a fee to opt out?

A: No. The Committee concluded those are questions of law outside its authority and declined to opine on whether the bar association or court could mandate appointments or assess a fee in lieu.

Q: Can a lawyer refuse an obligation imposed by law that the lawyer believes is invalid?

A: The Committee noted that under Rule 8.04, Comment 6, a lawyer may refuse to comply with an obligation imposed by law upon a good-faith belief, openly asserted, that no valid obligation exists.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 6.01 (accepting appointments; ABA Model Rule 6.2, declining or terminating appointments) together with Rule 1.01 (competent and diligent representation; Model Rule 1.1) and Rule 8.04, Comment 6 (misconduct). It draws the line between matters of professional discipline, which the Committee may address, and questions of law about the validity of a bar association's mandatory-appointment plan, which it treats as beyond its charge.

Citations and references

Rules of Professional Conduct:

• MR 6.2 (declining or terminating appointments); MR 1.1 (competence)
• Texas Disciplinary Rule 6.01 and Comment 1; Rule 1.01; Rule 8.04, Comment 6

See also

• TX Ethics Op. 612: Paying an Annual Bar Fee to Avoid Court Appointment

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-477/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_477.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative. A section symbol in a citation appeared in the source as an unreadable encoded character; it has been rendered as "Section."

QUESTION PRESENTED

Would Attorney A be subject to disciplinary sanctions for refusing to accept the criminal appointment on competency grounds?
Does the Association have a duty to be fair to all attorneys by providing an exemption on competency grounds, or is it sufficient that attorneys in the county may be exempted from the Plan by paying a nominal fee?

STATEMENT OF FACTS

Attorney A is a licensed Texas attorney residing in Big Oil County. Although he has maintained his law license in active status, he is not presently engaged in the practice of law, being employed as a loan officer for a local bank. As a condition of his employment, Attorney A executed a standard conflicts of interest policy which prohibits him from accepting employment outside of his duties with the bank. In the ten years that he has been a licensed Texas attorney, he has never handled a criminal matter.

Attorney A is not a member of the Local Bar Association ("Association"). He received notice from the Association that his name had been placed on the list of attorneys to receive court appointments under a mandatory program of providing legal representation for indigent persons in criminal cases. The program, referred to as "the Plan" is administered by the Association and provides that "all attorneys licensed to practice law who reside in Big Oil County, Texas are required to defend indigent persons in criminal cases."

Five categories of exemptions are set out under the Plan. The exemptions are as follows: a) Attorneys who are over the age of fifty years as of October 1 of each year. b) Attorneys who have paid $400 for each year exemption is sought; a year is from October 1 through September 30. c) Attorneys who are exempt by law. d) Attorneys who are not required to pay the Texas Occupational Tax. e) Attorneys who establish that appointment would be hardship.

DISCUSSION

The Professional Ethics Committee does not have the power or authority to tell either a bar association or a court how to handle criminal appointments, as that is a question of law. Similarly, whether or not a bar association has the authority to assess a fee in lieu of accepting criminal appointments is also a question outside the scope of the committee's authority.

The Texas Rules of Professional Conduct define proper conduct for purposes of professional discipline. Supreme Court of Texas, State Bar Rules, Art. X, Section 9, Texas Disciplinary Rules of Professional Conduct, Preamble, Section 10 (1989). Those rules, however, (1) do not prescribe either disciplinary procedures or the penalties for their violation, (2) do not define standards of civil liability of lawyers for professional conduct, and (3) do not augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty. Id. Preamble, Sections 14 and 15.

The Committee notes that the rules do provide that a "lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause ..." Id., Rule 6.01 (1990). Comment 1 to Rule 6.01 states: "For good cause a lawyer may seek to decline appointment to represent a person who cannot afford to retain counsel or whose cause is unpopular." Good cause exists if the lawyer cannot handle the matter competently. See, Id., Rule 1.01.

The Committee further notes that the rules also provide that a lawyer may refuse to comply with an obligation imposed by law (including regulations of the practice of law) upon a good faith belief, openly asserted, that no valid obligation exists Id., Rule 8.04, Comment 6.

Tex. Comm. On Professional Ethics, Op. 477 (1991)