Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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Is an attorney ethically bound to accept appointment by court to represent indigent defendants in criminal cases?
Business and Professions Code section 6068
Penal Code section 987.
The Committee has been requested to give a formal opinion on questions presented by an attorney practicing in a sparsely populated county as to his ethical position in relation to court appointments in criminal cases. The particular attorney is the attorney for a city within that county.
The question not having been raised, the Committee expresses no opinion with reference to a possible conflict of interest present in the appointment of a city attorney to defend a person in a criminal case.
The questions posed are:
1. Is an attorney under an obligation to accept court appointments in criminal cases when the court declines to appoint other attorneys who have their offices in the county and who are otherwise competent?
2. May the court appoint attorneys to handle indigent criminal cases when they do not have their offices within the county but regularly:
(a) Render legal services of a general nature to residents of the county; or
(b) Litigate criminal matters on a regular basis in the courts of said county; or
(c) Litigate civil cases on a regular basis before the courts of said county.
3. Is an attorney obliged in all criminal cases to accept an appointment to represent an indigent defendant irrespective of the adequacy of the compensation and without regard to the effect such appointments will have on his ability to conduct his private practice.
While the questions are posed as ethical, the answers are primarily legal and have been long settled by the courts.
1. The court has the authority to appoint counsel for indigents (Pen. Code, 987, subd. (a)) and the attorney is obliged to accept such appointment. Bus. & Prof. Code Sections 6103-6068, subd. (h).)1 The question of competency of other counsel in the county is for the court to decide. As the present question is posed, the inference is that the court has already concluded other counsel is not competent. The basis of this conclusion is beyond the purview of this opinion, since California has no specialized practice except Patents and Copyrights, and all practicing attorneys are deemed competent to handle any type of practices.2
2. The courts not only have the power, but do, in fact, appoint attorneys from out of the county. The practical, economical and budgetary aspects which might preclude such appointment are left to the sound discretion of the appointing court.
3. The answer to question number 3 is really the crux of the entire query and addresses itself to adequacy of compensation. The questioner has not supplied the committee with any facts indicating inadequacy of compensation. He has made a statement that compensation to be provided will be inadequate. His remedy, again, is a legal one, perhaps by a petition for a writ of mandate for review of abuse of discretion by the appointing court. See Halpin v. Superior Court (1966) 240 Cal. App. 2d 701, 705 [49 Cal. Rptr. 857], which cites Hill v. Superior Court (1956) 46 Cal.2d 169, 175, [293 P.2d 10] and sets forth the criteria to be applied in determining adequacy of compensation:
"(3) The criteria to be used in determining whether or not a court exercised its discretion in awarding an unreasonably small sum are the continuing duty of counsel to the 'defenseless' (Bus. & Prof. Code, 6068, subd. (h)); the statutory provisions of other jurisdictions for compensation; and the general level of compensation paid to public officers in prosecuting and defending criminal proceedings. (Hill v. Superior Court, (1956) 46 Cal. 2d 169, 175.)"
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 American Bar Association Code of Professional Responsibility, Ethical Consideration 2-29 states:
"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."
2 [PUBLISHER'S NOTE: Since 1972, the Pilot Program on Legal Specialization ordered by the California Supreme Court has provided for certified specialties in the following fields: criminal law, family law, tax law, and workers' compensation.]
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