81-F-24 - Appointed to Criminal Case





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

There has been a long standing practice in the courts of a mid-state county to appoint all attorneys in the county to represent indigents accused of criminal offenses by rotation without regard to their practice, intention to practice or interest in becoming or remaining proficient in the area of criminal law.

Canon 2 of the Code of Professional Responsibility states the axiom that a lawyer should assist the legal profession in fulfilling its duty to make legal counsel available. Certain Ethical Considerations under Canon 2 state the aspirational objectives toward which attorneys should strive in making legal counsel available. They state principles upon which the attorney can rely for guidance. The relevant portions of the Ethical Considerations under Canon 2 are:

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 ....

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 ....

The Disciplinary Rules, unlike the Ethical Considerations, are mandatory in character and state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action. Therefore, an attorney who is not competent to handle criminal cases should respectfully decline appointment by the court of such cases in accordance with the authorities cited herein.

This 31st day of December, 1981.


A. B. Goddard
Jack C. Raulston
John T. Henniss DISSENTS