81-F-24 - Appointed to Criminal Case

FORMAL ETHICS OPINION 81-F-24

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.

ETHICS COMMITTEE:

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

APPROVED AND ADOPTED BY THE BOARD