92-F-127 - Avoiding appointment in criminal cases

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.


W. J. Michael Cody
Thomas H. Rainey
Walker T. Tipton