83-F-47 - Delegation of Appointment

 

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 83-F-47 


Inquiry is made concerning the propriety of an attorney employing another attorney to act in his behalf in representing indigent criminal defendants whom he has been appointed by the Court to represent.

Tennessee Formal Ethics Opinion 81-F-24 holds that an attorney who is not competent to handle criminal cases should respectfully decline appointment by the Court of such cases pursuant to Disciplinary Rule 6-101(A)(1) of the Code of Professional Responsibility. Thus, we now consider this inquiry only from the view of those attorneys who are competent to handle such cases.

The Code of Professional Responsibility provides aspirational objectives toward which attorneys should strive in making legal counsel available as follows:

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. 

The attorney's duty is largely moral and remains to be aspirational and voluntary in most instances, for 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.

This 23rd day of May , 1983.

ETHICS COMMITTEE:

F. Evans Harvill
Oscar B. Hofstetter, Jr.
William R. Willis


APPROVED AND ADOPTED BY THE BOARD