Does a court-appointed lawyer owe the usual duties to a competent defendant who refuses to be represented?

Plain-English summary

The opinion starts from the premise that the client-lawyer relationship is a consensual one. From that premise it asks whether a lawyer who is appointed to represent a competent defendant, but whose representation the defendant refuses, actually has a client to whom duties are owed, or whether any obligations instead flow from the tribunal's order.

The committee works through the Rules that define duties to a client: Rule 1.2(a) on abiding by the client's decisions about objectives, Rule 1.1 on competence, Rule 1.3 on diligence, Rule 1.4 on communication, Rule 1.6 on confidentiality, the conflict rules in 1.7 through 1.9, and Rule 2.1 on independent judgment. It concludes that each of these "make[s] sense only after a client has accepted the client-lawyer relationship," so a defendant who has refused representation has no basis to hold the lawyer to those standards. The committee reasons that the Rules rest on the premises that the lawyer furthers the client's goals and that a competent client has ultimate authority over those goals, which makes the idea of a relationship created without consent "foreign to the concepts in the Rules."

The committee distinguishes situations where consent comes from someone other than the client, such as a parent or court acting for a child or a person under a disability under Rule 1.14, or unnamed members of a class, and situations where a court orders a lawyer to continue an existing representation under Rule 1.16(c). It explains that withdrawing from an established relationship is different from forming one, because initial consent remains essential to creating the relationship. The committee expressly disagrees with an Iowa bar opinion that had relied on the "officer of the court" concept to argue a tribunal may compel representation regardless of consent; it traces that term's English roots, notes that American lawyers have never been court "officers" in that sense, and observes that "officer of the legal system" Rules limit a lawyer's compliance with client objectives rather than create duties to a client. Finally, the committee cautions that a self-representing defendant who turns to standby counsel for advice may, by doing so, be found to have consented to and created a client-lawyer relationship.

In practice

Under this opinion, a lawyer appointed over a competent defendant's objection should look to the appointing court's order, not the client-relationship Rules, to define what is required. The opinion ties any legal obligation toward the unwilling defendant to the tribunal's authority, while limiting the lawyer's ethical duties to the Rules governing dealings with non-clients. It also flags that if the defendant later seeks the lawyer's advice, that interaction may itself create a relationship, which changes the analysis.

Common questions

Q: I was appointed, but the defendant says he doesn't want me. Do I owe him the duties of competence and diligence?

A: Not unless he accepts the representation. The opinion concludes that "if a defendant has not accepted the client-lawyer relationship, he has no basis upon which to hold the lawyer accountable to such standards."

Q: Where do my obligations to the defendant come from, then?

A: From the court. The committee concluded the lawyer's ethical duties are "limited to complying with the Rules defining a lawyer's obligations to persons other than a client," with any other obligations arising from the tribunal's order.

Q: Can a court force a client-lawyer relationship on someone using the "officer of the court" idea?

A: No, in the committee's view. It disagreed with the contrary Iowa opinion, explaining that the notion of a relationship created "absent consent by or on behalf of a client . . . is foreign to the concepts in the Rules."

Q: What if the defendant is representing himself but asks me for advice as standby counsel?

A: That can create a relationship. The committee cautioned that a self-representing defendant who turns to standby counsel for advice may be found to have consented to, and thereby created, a client-lawyer relationship.

Background and rules framework

The opinion interprets the consensual nature of the client-lawyer relationship reflected throughout the Model Rules, including Rule 1.2(a), Rule 1.6, the conflict rules, Rule 1.14 (clients with diminished capacity), Rule 1.16(c) (continuing a representation when ordered by a tribunal), and Rule 1.18 (prospective clients). It draws on the Preamble's "officer of the legal system" language and Scope paragraph [17], which states that substantive law determines whether a client-lawyer relationship exists.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.2(a) (client's authority over objectives)
• ABA Model Rule 1.6 (confidentiality)
• ABA Model Rule 1.16(c) (continuing representation when ordered)
• ABA Model Rule 1.18 (duties to prospective clients)
• ABA Model Rule 1.14 (client with diminished capacity)
• Preamble [1] and Scope [17] (officer of the legal system; existence of the relationship)

Cases:

• Faretta v. California, 422 U.S. 806 (1975), right of self-representation
• McKaskle v. Wiggins, 465 U.S. 168 (1984), standby counsel
• Cammer v. United States, 350 U.S. 399 (1956), lawyers as officers of the court

Other opinions cited:

• Iowa Bar Ethics & Practice Guidelines Op. (Feb. 24, 2006): the contrary view, with which the committee disagrees
• ABA Standards for Criminal Justice 4-3.9 (hybrid and standby counsel)
• Restatement (Third) of the Law Governing Lawyers section 14

See also

• ABA Formal Op. 472: Communicating With a Person Receiving Limited-Scope Services
• ABA Formal Op. 502: Communication With a Represented Person by a Pro Se Lawyer
• ABA Formal Op. 492: Obligations to Prospective Clients

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 07-448.pdf