83-F-47 - Delegation of Appointment

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
83-F-47 Page 2
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.
83-F-47 Page 3
This 23rd day of May , 1983.
ETHICS COMMITTEE:
F. Evans Harvill
Oscar B. Hofstetter, Jr.
William R. Willis
APPROVED AND ADOPTED BY THE BOARD