If Maryland's public defender runs out of money for conflict cases, who pays for the defendant's lawyer?

Plain-English summary

The State Public Defender asked the Attorney General about a budget crisis in his office: as of September 30, 1991, budget cuts had left no funds to pay panel attorneys, the private lawyers the office normally assigned to cases where its own staff had a conflict of interest, such as representing multiple codefendants. The Public Defender had stopped referring conflict cases to panel attorneys and was instead declining representation outright, expecting courts to appoint counsel directly. He asked whether that approach was legally correct and, if so, how the appointed lawyers would be paid.

The opinion agreed that the Public Defender's office was required to decline representation in conflict cases once its panel attorney funds ran out, since Article 27A tied panel attorney compensation to funds "authorized by the budget for the Office of the Public Defender," and ethical rules barred continuing to represent both sides of a genuine conflict regardless of funding. On payment, the opinion concluded that Article 27A, §6(f) let a court step in and appoint counsel directly for the conflicted defendant, that the appointed lawyer would be a "special officer" of the court under the Courts Article entitled to a fee the court set, and that the fee would ordinarily be paid by the county where the prosecution was brought, since neither the statute nor Maryland case law addressed what happens when no county funds exist for that purpose either. In that gap, the opinion concluded a lawyer had no federal constitutional right to refuse an uncompensated court appointment, reasoning through Sixth Amendment, Thirteenth Amendment, and takings-clause case law that had rejected such challenges, while acknowledging the practical burden this placed on the appointed bar and on the courts.

Currency note

This opinion was issued in 1991 and analyzed Article 27A of the Maryland Code, the Courts Article, and the Maryland Rules of Professional Conduct as they then existed, applied to a specific 1991 budget shortfall in the Public Defender's office. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis, including possible recodification of Article 27A and changes to attorney compensation rules and rates. Treat this page as historical context, not current legal advice. Verify the current Article 27A (or its recodification), the current Maryland Rules, and current case law on compensation of appointed counsel before relying on any specific rule described here.

Common questions

Could Maryland's Public Defender legally refuse to handle a case where representing both sides created a conflict, once the money ran out?
According to this 1991 opinion, yes, and the office was required to. The Attorney General concluded that Article 27A tied panel attorney compensation directly to the office's own budget appropriation, so once that appropriation was exhausted the office had no choice but to decline further conflict-case referrals, separate from the ethical obligation not to continue representing conflicting interests regardless of funding.

Who paid the lawyer a court appointed after the Public Defender declined a conflict case?
The opinion concluded that the appointing court would set the fee, and the county where the prosecution was brought would ordinarily be responsible for paying it, treating the appointed attorney as a "special officer" of the court under the Courts Article, consistent with a long-recognized common law obligation of Maryland counties to cover such costs for indigent defendants.

Could an appointed lawyer be forced to work for free if the county had no funds either?
According to the opinion, yes, that was a real possibility the statute and case law left unaddressed, and the opinion concluded that requiring uncompensated appointed representation does not violate the Sixth Amendment, the Thirteenth Amendment, or the constitutional prohibition on taking property without just compensation, based on the majority of federal appellate decisions it reviewed on the question.

Background and statutory framework

Article 27A, §6(a) and §6(d) of the Maryland Code required the Public Defender to maintain a confidential list of panel attorneys and to compensate them from funds the State budget authorized for that office, while §13(1) reinforced that funding for the office as a whole depended on the State budget. When those funds ran short, Article 27A, §6(f) preserved the courts' independent authority to appoint counsel directly in conflict cases, which the opinion tied to §2-102(a) of the Courts Article, allowing a court to appoint counsel where authorized by law, and to the Revisor's Note crediting Article 27A, §6(f) as the source of that authority, per Chapter 2, Laws of Maryland 1973. The opinion treated an appointed lawyer as a "special officer" of the court under CJ §2-102(b)(2), whose fee could be taxed as costs or paid by the county under CJ §2-102(c), reasoning by analogy to the long-standing common law rule recognized in State v. City of Baltimore, 296 Md. 67 (1983), and Mayor and City Council v. Pattison, 136 Md. 64 (1920), that counties bear the criminal court costs and fees of indigent defendants.

On the underlying constitutional question, the opinion worked through federal case law rejecting a lawyer's right to refuse uncompensated appointed defense work, including Justice White's statement in Martin County v. Makemson, 479 U.S. 1043 (1987), that the Sixth Amendment "would not prohibit a State from requiring its lawyers to represent indigent criminal defendants without any compensation," and the Eighth Circuit's rejection of a Thirteenth Amendment and takings-clause challenge in Williamson v. Vardeman, 674 F.2d 1211 (8th Cir. 1982), while noting the D.C. Circuit's contrary suggestion in Family Div. Trial Lawyers v. Moultrie, 725 F.2d 695 (D.C. Cir. 1984), that an "unreasonable amount of required uncompensated service" might be an unconstitutional taking. The opinion also cited out-of-state decisions holding the bar in contempt for refusing uncompensated assignments during comparable public defender budget crises, including In re Spann, 183 N.J. Super. 62 (1982), and grounded the underlying obligation to serve as an officer of the court in the Maryland Court of Appeals' 1899 decision in Worcester County v. Melvin, 89 Md. 37 (1899).

Citations and references

Statutes:

• Article 27A, §6(a) of the Maryland Code, requiring the Public Defender to maintain a confidential list of panel attorneys
• Article 27A, §6(d), providing panel attorney compensation and tying it to the office's budget appropriation
• Article 27A, §13(1), providing that funds for the article are as provided in the State budget
• Rule of Professional Conduct 1.7(b), the conflict-of-interest rule barring representation materially limited by duties to another client
• Article 27A, §6(f), preserving a court's authority to appoint counsel in conflict cases involving the Public Defender's office
• §4(b)(2), identifying the courts covered by Article 27A's conflict-appointment provision
• §2-102(a) of the Courts Article, authorizing a court to appoint counsel for a party if authorized by law or rule
• Chapter 2, Laws of Maryland 1973, the Revisor's Note crediting Article 27A, §6(f) as the source of the court's appointment authority
• Rules 4-202(a) and 4-214(b), the Maryland Rules governing appointment of counsel referenced alongside the statutory authority
• CJ §2-102(b)(2), classifying appointed defense counsel as a special officer entitled to a court-set fee
• Rule 1.10(a), the imputed disqualification rule referenced regarding conflicts within a public defender's office
• CJ §2-102(c), providing that a special officer's fee may be taxed as costs or paid by the county
• Rule 4-353, referenced regarding the inability of an indigent defendant to pay taxed costs
• CJ §2-101(c), defining "court" for purposes of the special officer fee provisions, including the District Court
• Article 1, §14, providing that "county" includes Baltimore City
• CJ §1-608(a), providing that the State bears the costs of District Court operation and administration

Cases:

• Martin County v. Makemson, 479 U.S. 1043, 1045 (1987), U.S. Supreme Court opinion (White, J., dissenting from denial of certiorari) stating the Sixth Amendment does not itself require compensation for appointed counsel
• Williamson v. Vardeman, 674 F.2d 1211, 1214 (8th Cir. 1982), Eighth Circuit decision rejecting Thirteenth Amendment and takings-clause challenges to uncompensated appointed representation
• Dolan v. United States, 351 F.2d 671 (5th Cir. 1965), Fifth Circuit decision cited among the majority view rejecting a constitutional right to compensation for appointed counsel
• United States v. Dillon, 346 F.2d 633 (9th Cir. 1965), Ninth Circuit decision cited to the same effect
• Family Div. Trial Lawyers v. Moultrie, 725 F.2d 695, 705-06 (D.C. Cir. 1984), D.C. Circuit decision suggesting an unreasonable amount of uncompensated service might be an unconstitutional taking
• In re Spann, 183 N.J. Super. 62, 443 A.2d 239 (1982), New Jersey court decision holding an attorney in contempt for refusing an uncompensated indigent defense assignment during a public defender funding crisis
• State ex rel. Wolff v. Ruddy, 617 S.W.2d 64, 65-66 (Mo. 1981), Missouri Supreme Court decision cited alongside In re Spann on the bar's duty to accept uncompensated assignments
• Gideon v. Wainwright, 372 U.S. 335 (1963), U.S. Supreme Court decision establishing the Sixth Amendment right to counsel for indigent criminal defendants
• Worcester County v. Melvin, 89 Md. 37, 40, 42 A. 910 (1899), Maryland Court of Appeals decision on an attorney's duty as an officer of the court to accept an assignment, paired with an expectation of reasonable compensation
• State v. City of Baltimore, 296 Md. 67, 72-73, 459 A.2d 585 (1983), Maryland Court of Appeals decision recognizing the common law obligation of Baltimore City and the counties to pay criminal court costs for indigent defendants
• Mayor and City Council v. Pattison, 136 Md. 64, 68, 110 A. 106 (1920), Maryland Court of Appeals decision recognizing the same common law county obligation

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1991/Volume76_1991.pdf (this opinion appears at printed pages 341-346 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

PUBLIC DEFENDER

Budgetary Administration - Criminal Procedure - Attorneys
- Constitutional Law - Appointment of Counsel in
Conflict Cases

                            October 4, 1991

Stephen E. Harris, Esquire
Public Defender for the
State of Maryland

   You have requested our opinion on certain questions about the

representation of indigent defendants, given the serious budgetary
constraints affecting your office. You indicate that, as a result of budget
cuts, your office no longer has funds to pay for the services of panel
attorneys. As of September 30, 1991, your office stopped referring
cases to panel attorneys even in situations where your office is precluded
by a conflict from representing a defendant. Instead you are declining
representation, with the expectation that counsel for the defendant will
be appointed by the court.

   You first ask whether you are correct in interpreting the statute

to permit you to refuse to provide representation where to do so would
give rise to a conflict. In our view, your office is indeed required to
decline representation in such cases.

    Second, you ask how private counsel are to be paid when courts

begin to appoint counsel in cases that previously would have been
assigned to a panel attorney. We advise that the appointing court could
set the amount of compensation and ordinarily would require the county
to pay the fee. If no funds are available for this purpose, the assigned
lawyers could be called upon, as officers of the court, to carry out such
assignments without fee.1

   1 Your third question, having to do with alternatives if your proposed

course of action were not lawful, is moot in light of our responses to the first two.

    While our advice outlines a procedure that would meet the State's

legal obligations to indigent defendants, we do not mean to suggest that
this procedure is free of practical difficulties. Quite the contrary: this
procedure undoubtedly will entail severe administrative burdens and is
a far cry from the sensible approach to the representation of the indigent
reflected in the wise decision to create your office, with its authority to
engage panel attorneys in conflict cases, and on which the criminal
justice system has come to rely. That a result is lawful does not make
it feasible, let alone desirable. But, in the absence of new revenues, you
and the courts have no choice.

                                I

 Representation of Indigent Defendants in Conflict Cases

   Under Article 27A, §6(a) of the Maryland Code, the Public

Defender "shall maintain a confidential list of private attorneys-at-law
who shall be available to serve as counsel to indigent persons eligible for
legal representation under this article." These private attorneys are
classified into panels. "Panel attorneys shall be compensated by the
Public Defender for their professional services and expenses incident to
representation of indigent persons ...." Article 27A, §6(d).

   We agree with the premise that your office may not continue to

assign cases to panel attorneys when no appropriation for that purpose
remains available. The compensation of panel attorneys is derived "from
funds authorized by the budget for the Office of the Public Defender."
Article 27A, §6(d). See also §13(1) ("Funds for carrying out the
provisions of this article shall be ... [a]s provided in the State budget
from time to time."). If, as a result of budget reductions, the requisite
appropriations are not available, your office has no choice but to cease
the activity that would have been funded by the appropriation. See
generally 76 Opinions of the Attorney General 327 (1991); 75 Opinions
of the Attorney General 366 (1990).

   At the same time, the lack of funds does not mitigate the State's

responsibility to provide counsel for indigent defendants to the extent
required by the Sixth Amendment to the United States Constitution,
which grants to a criminal defendant the right "to have the Assistance of
Counsel for his defence." See Gideon v. Wainwright, 372 U.S. 335
(1963).

   Nor would a budget shortfall excuse compliance with ethical

requirements governing conflicts in litigation. Rule of Professional
Conduct 1.7(b) states the general principle that "[a] lawyer shall not
represent a client if the representation of that client may be materially
limited by the lawyer's responsibilities to another client ...." Dual

representation is permissible only if "the lawyer reasonably believes the
representation will not be adversely affected" and "the client consents
after consultation." The comment to the rule observes that "[t]he
potential for conflict of interest in representing multiple defendants in a
criminal case is so grave that ordinarily a lawyer should decline to
represent more than one co-defendant." You have indicated that your
office cannot, consistently with its ethical obligations, arrange for
representation within your office of codefendants who do not consent to
the arrangement.2

   The solution to the conflict problem is found in Article 27A,

§6(f), which provides that "[n]othing in this article shall be construed to
deprive any court mentioned in §4(b)(2) of this article of its authority to
appoint an attorney to represent an indigent person where there is a
conflict in legal representation in a matter involving multiple defendants
and one of the defendants is represented by or through the Office of
Public Defender ...."3 Under §2-102(a) of the Courts Article ("CJ"
Article), "a court may appoint ... counsel for a party if authorized by
law or rule ...," and the Revisor's Note to CJ §2-102 cites Article 27A,
§6(f) as "allow[ing] a court to appoint counsel for a criminal defendant
where the public defender is in conflict of interest or where there is no
public defender available." Chapter 2, Laws of Maryland 1973 at 37.
See Rules 4-202(a) and 4-214(b).

                                   II

             Compensation of Appointed Counsel

   "Being an officer of the Court," a member of the bar is "in the

absence of a reasonable excuse, bound to perform the duty assigned
him." Worcester County v. Melvin, 89 Md. 37, 40, 42 A. 910 (1899).
At the same time, the Court of Appeals remarked that, "whilst the Court
possessed the power and authority to require [the lawyer's] services, it
would not have been justified in exacting them without making some
provision for reasonable compensation." Id. And, indeed, under CJ §2-
102(b)(2), appointed defense counsel would be a "special officer

   2
      See Rule 1.10(a) and comment regarding the imputed disqualification

of one lawyer to others in an office. You might wish to explore with the bar
association or experts in legal ethics the nature of imputed disqualification in the
situation you describe. "Most courts have recognized that it is inappropriate
automatically to treat a prosecutor's office or a public defender's office as a
'firm' for purposes of imputed disqualification." Hazard & Hodes, The Law of
Lawyering §1.10:202, at 326 (2d ed. 1990).
3
Section 4(b)(2) mentions "the District Court of Maryland, the various
circuit courts ..., and the Court of Special Appeals."

ordinarily entitled to compensation in "[t]he amount set by the court
."4

   CJ §2-102(c) provides that "[a] special officer's fee may be taxed

as costs or paid by the county."5 Obviously, an indigent defendant, by
definition, could not pay these costs even if the court chose to tax them.
See Rule 4-353. Thus, as a practical matter, the fee for counsel
appointed to represent an indigent defendant would be payable by the
county whose State's Attorney brings the prosecution. Cf. State v. City
of Baltimore, 296 Md. 67, 72-73, 459 A.2d 585 (1983) and Mayor and
City Council v. Pattison, 136 Md. 64, 68, 110 A. 106 (1920)
(recognizing common law obligation of Baltimore City and the counties
to pay criminal court costs and fees when a defendant is convicted but
indigent).6

   However, neither the statute nor the caselaw addresses the

question of responsibility for payment of court-designated fees in the
absence of local appropriations for that purpose. It may be, therefore,
that until funds become available, appointed counsel will have to serve
without fee.

   Requiring a lawyer to provide uncompensated representation to

an indigent defendant raises constitutional questions, and the cases are
not uniform. See generally Annot., Right of Attorney Appointed by
Court for Indigent Accused to ... Compensation by Public ..., 21 A.L.R.
3d 819 (1968). However, the majority - and, we believe, the better -
view is that a lawyer has no constitutional right to refuse an
uncompensated appointment.

    4
       The term "court" means "the Court in which the officer serves, but if

the officer serves in a district of the District Court it means the District Court for
county or district in which he serves." CJ §2-101(c).
5
The term "county" includes Baltimore City. Article 1, §14.
6
Prior to the establishment of the Public Defender's Office, counties
spent substantial sums for appointed defense counsel - nearly $1 million in fiscal
year 1970, for example. Report of Joint Governor's Commission and Baltimore
City Bar Association's Committee for the Study of Public Defender System for
the State of Maryland 62 (1970). Of course, counties do not now appropriate
funds for this purpose.
With respect to the District Court, we recognize that the entire costs of
its "operation [and] administration" are borne by the State, not the counties. CJ
§1-608(a). However, the express inclusion of the District Court in CJ §2-101(c)
means that the compensation set by the District Court for appointed counsel under
CJ §2-102(b)(2) is payable by the county in which the appointed counsel serves.

   First of all, the Sixth Amendment does not itself impose a

compensation requirement. In the words of Justice White, "nothing in
the Sixth Amendment ... would prohibit a State from requiring its
lawyers to represent indigent criminal defendants without any
compensation for their services at all." Martin County v. Makemson,
479 U.S. 1043, 1045 (1987) (White, J. dissenting from denial of
certiorari) (emphasis omitted).

   Nor, in our view, does any other provision of the U.S.

Constitution. "Attorneys may constitutionally be compelled to represent
indigent defendants without compensation. The thirteenth amendment
has never been applied to forbid traditional modes of public service even
when only a limited segment of the population is so compelled....
[And] [t]he vast majority of federal and state courts ... have decided that
requiring counsel to serve without compensation is not an
unconstitutional taking of property without just compensation."
Williamson v. Vardeman, 674 F.2d 1211, 1214 (8th Cir. 1982). See
also, e.g., Dolan v. United States, 351 F.2d 671 (5th Cir. 1965); United
States v. Dillon, 346 F.2d 633 (9th Cir. 1965). But see, e.g., Family
Div. Trial Lawyers v. Moultrie, 725 F.2d 695, 705-06 (D.C. Cir. 1984)
("unreasonable amount of required uncompensated service" might qualify
as a "taking").

   Indeed, courts in other states have recognized the duty of the bar

to accept uncompensated assignments in response to budget problems
comparable to the present situation in Maryland. In In re Spann, 183
N.J. Super. 62, 443 A.2d 239 (1982), the court held in contempt a
lawyer who refused assignment of the defense of a criminal defendant,
at a time when the New Jersey Legislature had declined to fund that
state's public defender's office: "[U]ntil the Legislature provides the
necessary funds for the Public Defender to assume the responsibility
mandated by [statute], members of the bar of the State of New Jersey
will have to continue to bear the burden of representing indigent
defendants ... as they have done in the past." 443 A.2d at 243. See
also State ex rel. Wolff v. Ruddy, 617 S.W.2d 64, 65-66 (Mo. 1981).

                                III

                          Conclusion

   In summary, it is our opinion that if your office is unable to

represent a defendant because of a conflict and if funds for the provision
of panel attorneys are unavailable, the defendant would be represented

by an attorney appointed by the court. To the extent of available funds,
the county in which the prosecution is brought would be responsible for
paying the fees set by the court for the appointed attorney's services.

                                          J. Joseph Curran, Jr.
                                          Attorney General

                                          Jack Schwartz
                                          Chief Counsel
                                          Opinions and Advice