Can a public defender approach a newly arrested person, before any court appointment, to see if they qualify for and want a public defender?

Currency note

This opinion was issued in 1977, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct, and shortly after Bates v. State Bar of Arizona (1977) began reshaping the law of lawyer advertising and solicitation. The opinion interprets former California Rules 2-101 (solicitation) and 2-104(A), the predecessors to current rules on solicitation and accepting appointments (Model Rules 7.3 and 6.2). Subsequent rule amendments, the Bates line of cases, and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee was asked whether former Rule 2-101 was violated when a public defender initiates contact with a person arrested for a homicide or capital offense to determine whether the person is sufficiently indigent to qualify for the public defender and, if so, whether the person wants that representation, in circumstances where the arrested person has not yet requested counsel and the court has not yet acted, but where the public defender knows that almost all such arrestees qualify for and request the public defender. The committee concluded the conduct is not proscribed by former Rule 2-101.

It read former Rule 2-101, which prohibited soliciting professional employment "by advertising or otherwise," as aimed at conduct motivated by a desire to obtain personal benefit, secure personal publicity, or cause litigation to harass or injure another (ABA EC 2-3), and as designed to restrain lawyers from contacting nonclients to obtain remunerative business. Because a public defender has a statutory duty to defend indigent persons without expense to them (Government Code section 27706) and is not compensated by the defendant, the committee concluded the rule does not bar the public defender from initiating contact with an accused who is not yet a client, unless the motive is improper.

The committee distinguished private practitioners, who remain barred from similar conduct, citing former Rule 2-104(A) (which distinguishes public and private lawyers) and Business and Professions Code section 6152, whose subsection (d) expressly preserves a public defender's ability to make known his services to persons unable to afford counsel, whether in custody or otherwise. It concluded that Rule 2-101 is not meant to discourage the profession's duty to make legal counsel available (ABA Canon 2, EC 2-2, 2-3), and that this duty is all the more important where a defendant's constitutional rights to counsel and against self-incrimination are at stake.

Common questions

Q: Can a public defender approach an arrested person before being appointed by the court?

A: Yes, under this opinion. The committee concluded a public defender may initiate contact with a person arrested for a homicide or capital offense to determine eligibility for and desire for representation, absent an improper motive, because the public defender is not soliciting remunerative business.

Q: Could a private lawyer do the same thing?

A: No. The committee drew a line at former Rule 2-104(A) and Business and Professions Code section 6152, which bar a private practitioner from such contact but expressly preserve a public defender's ability to make known his services to those who cannot afford counsel.

Q: What makes the public defender's contact different from prohibited solicitation?

A: The committee reasoned the solicitation rule targets contacting nonclients to obtain paid business or personal benefit. Because the public defender is not paid by the defendant and is carrying out a statutory duty (Government Code section 27706), the contact falls outside the rule unless improperly motivated.

Background and rules framework

The opinion interprets former California Rule 2-101 (prohibiting solicitation of professional employment) and former Rule 2-104(A) (distinguishing public from private lawyers), read together with ABA Canon 2 and EC 2-2 and 2-3, Government Code section 27706 (the public defender's duty to defend the indigent), and Business and Professions Code section 6152 (the "runner or capper" statute, whose subsection (d) preserves a public defender's outreach). These solicitation and appointment concerns are now addressed by Model Rules 7.3 and 6.2 and their California analogs.

Citations and references

Rules of Professional Conduct:

• Former California Rules 2-101 and 2-104(A)
• ABA Code of Professional Responsibility, Canon 2 and EC 2-2, 2-3
• Current analogs: Model Rules 7.3 and 6.2 / California Rules 7.3 and related

Statutes:

• California Government Code section 27706 (public defender's duty to defend indigent persons)
• California Business and Professions Code section 6152 (runner or capper; subsection (d) preserves public defender outreach)

Cases:

• Bates v. State Bar of Arizona (1977) (referenced for historical currency context)

Other authorities:

• Drinker, Legal Ethics (1953), pages 215-220

See also

• CA Ethics Op. 1977-43: Discussing a Subject of Litigation

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1977-42.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1977-42

ISSUE:

May a public defender ethically solicit employment?

DIGEST:

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.

AUTHORITIES INTERPRETED:

Rules 2-101 and 2-104(A) of the Rules of Professional Conduct of the State Bar.

DISCUSSION

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.]

. . . . . . . . . .

"(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.