Can a lawyer refuse a court appointment to represent an indigent criminal defendant by saying he does not practice criminal law?

Plain-English summary

A member reported that a local judge was assigning lawyers on a rotating basis to represent indigent prisoners in criminal cases, and posed several questions about accepting the responsibility.

Answering the first question, the committee did not consider a lawyer's failure to practice criminal law an excuse for refusing such an appointment, and stated that refusing would violate Canon 4. Answering the second, it believed a lawyer who refuses such an appointment is subject to disciplinary action. Answering the third, it believed a lawyer who withdraws from state court criminal practice, but continues federal court criminal practice, is still obligated to accept such appointments.

The committee added that an effective system of screening indigents should be established, that the indigent should be examined under oath as to assets and ability to pay, and that false testimony should be punishable by contempt or perjury charges.

Currency note

This opinion was issued in 1963, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 4 of the Canons of Professional Ethics; a lawyer's obligation regarding appointments by a tribunal is now addressed by Rule 4-6.2 (accepting appointments) of the Rules Regulating The Florida Bar (Model Rule 6.2). The opinion also predates Gideon v. Wainwright and the modern framework for appointed counsel. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a civil-only lawyer refuse a criminal appointment because he does not handle criminal cases?

A: No. The committee did not consider failure to practice criminal law an excuse for refusing the appointment and stated that doing so would violate Canon 4.

Q: What happens to a lawyer who refuses such an appointment?

A: The committee believed a lawyer refusing the appointment is subject to disciplinary action.

Q: Does dropping state criminal practice but keeping federal criminal practice end the obligation?

A: No. The committee believed a lawyer who withdraws from state court criminal practice but continues federal court criminal practice is still obligated to accept such appointments.

Background and rules framework

The opinion applied former Canon 4 of the Canons of Professional Ethics, concerning a lawyer's duty to accept assignments to defend the indigent. The subject is now addressed by Rule 4-6.2 of the Rules Regulating The Florida Bar (Model Rule 6.2), which states a lawyer should not seek to avoid appointment by a tribunal except for good cause.

Citations and references

Rules of Professional Conduct:

• Canon 4 [Canons of Professional Ethics; see current Rule 4-6.2]

See also

• FL Bar Ethics Op. 72-45: Refusing Defense Appointments
• FL Bar Ethics Op. 66-1: Prosecutor's Partner and Defense

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-62-68/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-62-68-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 62-68
April 15, 1963
Advisory ethics opinions are not binding.
The failure of a lawyer to practice criminal law is not an excuse for failure to accept a court appointment to represent an indigent criminal defendant. A lawyer refusing such an appointment is subject to disciplinary action. A lawyer who withdraws from state court criminal practice but continues federal court criminal practice is still obligated to accept such appointments.
Canon: 4
Chairman Holcomb stated the opinion of the committee:
A member of The Florida Bar states that a local judge is assigning lawyers on a rotating basis to represent indigent prisoners in criminal cases and poses several questions as to acceptance of the responsibility.
Answering question No. 1, we do not feel that failure of a lawyer to practice criminal law is an excuse for failure to accept such an appointment, and that he would violate Canon 4 by so doing.
Answering question No. 2, we believe that a lawyer refusing to accept such an appointment is subject to disciplinary action.
Answering question No. 3, we believe a lawyer who withdraws from state court criminal practice, but continues federal court criminal practice, is still obligated to accept such appointments.
We believe that an effective system of screening indigents should be established and that the indigent should be examined under oath as to his assets and ability to pay and should be punished by contempt or perjury charges for false testimony.