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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May a public defender ethically solicit employment?
It is proper for a public defender to initiate contact with a person arrested for a homicide or capital offense in order to determine whether the arrested person is eligible for the services of the public defender and desires to be represented by the public defender.
Rules 2-101 and 2-104(A) of the Rules of Professional Conduct of the State Bar.
This Committee has been asked whether it is a violation of rule 2-101 of the Rules of Professional Conduct for a public defender to initiate contact with a person arrested for a homicide or capital offense in order to determine whether that arrested person is sufficiently indigent to qualify for the services of a public defender and, if so, whether the arrested person desires to be represented by the public defender. In particular, the inquiry asks whether this conduct is improper in circumstances where the arrested person has not yet requested legal representation and the court has not yet ordered or considered the legal representation of the accused, but where the public defender is aware that almost all persons arrested for such offenses qualify for and request to be represented by the public defender.
We are of the opinion that the subject conduct is not proscribed by rule 2-101 of the Rules of Professional Conduct.
Rule 2-101 of the Rules of Professional Conduct prohibits the solicitation by a member of the State Bar of "professional employment by advertising or otherwise." This prohibition, we believe, is aimed at conduct "motivated by a desire to obtain personal benefit, secure personal publicity or cause litigation to be brought merely to harass or injure another." American Bar Association Code of Professional Conduct, Ethical Consideration 2-3. It is a prohibition designed to restrain lawyers from contacting nonclients for the purpose of obtaining remunerative business. (Cf. Drinker, Legal Ethics (1953), pages 215-220.)
A public defender has a duty, upon the request of the defendant or upon order of the court, to defend, without expense to the defendant, any person who is not financially able to employ counsel. (Gov. Code, 27706.) In light of this duty, and because the public defender is not compensated by the defendant, we do not believe that rule 2-101 of the Rules of Professional Conduct prohibits a public defender from initiating communication with an accused who is not then a client, unless the motive of the public defender is to secure personal publicity or some personal benefit or is otherwise improper. However, rule 2-101 of the Rules of Professional Conduct does prohibit a lawyer in private practice from engaging in similar behavior. In making the distinction, we have been guided by rule 2-104(A) of the Rules of Professional Conduct, which distinguishes between public and private lawyers, providing that "[a] member of the State Bar shall not recommend employment, as a private practitioner, of himself, his partner or associate to a nonlawyer who has not sought his advice..." We have also taken notice of California Business and Professions Code section 6152, which reads, in relevant part, as follows:
"Section 6152. It is unlawful for:
"(1) Any person, in his individual capacity as a public or private employee, or for any firm, corporation, partnership or association to act as a runner or capper for any such attorneys or to solicit any business for any such attorneys in and about the state prisons, county jails, city jails, city prisons, or other places of detention of persons, city receiving hospitals, city and county receiving hospitals, county hospitals, justice courts, municipal courts, superior courts, or in any public institution or in any public place or upon any public street or highway or in and about private hospitals, sanitariums or in and about any private institution or upon private property of any character whatsoever. [Emphasis added.]
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"(c) Nothing in this section shall be construed to prevent the recommendation of professional employment where such recommendation is not prohibited by the Rules of Professional Conduct of The State Bar of California.
"(d) Nothing in this section shall be construed to mean that a public defender or assigned counsel may not make known his or her services as a criminal defense attorney to persons unable to afford legal counsel whether such persons are in custody or otherwise." [Emphasis added.]
Rule 2-101 of the Rules of Professional Conduct is not a rule designed to discourage the legal profession from its duty to make legal counsel available and should not be so interpreted. See American Bar Association Code of Professional Responsibility, canon 2. In a very real sense, when a public defender initiates contact with an accused, the public defender is assisting the legal profession in this duty. The ethical considerations under American Bar Association Code of Professional Responsibility, canon 2 direct lawyers, including the public defender, to assist laypersons in recognizing legal problems and confirm that a lawyer, including the public defender, may volunteer advice to a layperson if "motivated by a desire to protect one who does not recognize that he may have legal problems or who is ignorant of his legal rights or obligations." (See ABA Code of Prof. Responsibility, EC 2-2, 2-3.) This professional duty is all the more important where a criminal defendant's constitutional rights to the assistance of counsel and against self-incrimination are at stake.
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.
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