Can a lawyer refuse all court appointments to defend indigents because he finds it repugnant to help acquit someone who may be guilty?

Plain-English summary

The Board of Governors asked the committee whether a lawyer violates Canon 2 of the Code of Professional Responsibility by declining all court appointments to represent indigent criminal defendants, on the sole ground that his skills might help acquit a guilty person, a result he finds extremely repugnant. The question assumed the lawyer was competent and able to handle the appointments, and it did not involve religious principles.

The committee explained that Canon 2 calls for lawyers to help make legal counsel available, and that under Ethical Consideration 2-29 an appointed lawyer should not seek to be excused except for compelling reasons, which do not include repugnance toward the subject matter or defendant or a belief that the defendant is guilty. The consensus was that a blanket refusal under those circumstances would be non-fulfillment of the lawyer's professional obligations. The committee added that a lawyer with strong, genuine feelings of this kind may make them known to the court and ask not to be appointed or to have the appointment rescinded; a judge is unlikely to force the appointment if the lawyer's feelings would preclude adequate representation. But if the court, in its discretion, denies the request, the lawyer fails to fulfill his professional obligations if he then refuses to serve.

Currency note

This opinion was issued in 1973, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied Canon 2 and Ethical Consideration 2-29 of the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rule 4-6.2 before relying on any specific requirement mentioned here.

Common questions

Q: Could the lawyer refuse all indigent appointments because helping acquit a guilty person was repugnant to him?

A: No. Under this opinion, repugnance toward the subject matter or the defendant, or a belief that the defendant is guilty, is not a compelling reason to be excused, so a blanket refusal would not fulfill the lawyer's professional obligations.

Q: Was there anything the lawyer could do about strong objections?

A: Yes. The opinion said the lawyer may make his feelings known to the court and request not to be appointed or to be relieved, and that a judge is unlikely to force the appointment if those feelings would prevent adequate representation.

Q: What if the court denied the request anyway?

A: The committee concluded that if the court, in its discretion, denied the request, the lawyer would fail to fulfill his professional obligations by refusing to serve.

Background and rules framework

The opinion applied Canon 2 of the former Code of Professional Responsibility (the profession's duty to make legal counsel available) and Ethical Consideration 2-29 (an appointed lawyer should not seek to be excused except for compelling reasons). In current Florida practice the duty regarding appointed representation corresponds to Rule 4-6.2 (accepting appointments); the Model Rule analogue is Rule 6.2.

Citations and references

Rules of Professional Conduct:

• CPR Canon 2; Ethical Consideration 2-29 (accepting court appointments)

See also

• FL Bar Ethics Op. 73-47: Appointed Counsel Later Suing the Government
• FL Bar Ethics Op. 81-9: Court-Appointed Counsel and a Frivolous Appeal

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-72-45/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-45-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 72-45
October 29, 1973
Advisory ethics opinions are not binding.
A blanket refusal by a lawyer to accept court appointments to defend indigents in criminal cases would be contrary to his professional obligations. However, a lawyer may make his objections to representation of such criminal defendant's known to the court and request to be relieved, relying on the court's discretion.
CPR: Canon 2, EC 2-29
Committeeman Kittleson stated the opinion of the committee:
The Board of Governors of The Florida Bar has requested the Professional Ethics Committee for advice on this question: Does a lawyer violate Canon 2 of the Code of Professional Responsibility when he declines all court appointments to represent indigent defendants in criminal prosecutions on the sole ground that there is a possibility that his skills would be used to achieve an acquittal of a guilty person, a result that would be extremely repugnant to the lawyer? The question does not involve any plea of incompetence or inability to carry out the appointment on other grounds, and, on the contrary, the question presupposes that the lawyer has a good measure of pertinent skills and experiences. The question does not involve religious principles.
Canon 2 calls for lawyers to assist the legal profession in fulfilling its duty to make legal counsel available. When a lawyer is appointed by a court to undertake representation of a person unable to obtain counsel, he should not seek to be excused except for compelling reasons, and compelling reasons do not include the repugnance to the lawyer of the subject matter or of the defendant, or the lawyer's belief that the defendant is guilty. Ethical Consideration 2-29. The consensus of the Committee is that blanket refusal by a lawyer to accept court appointments, under the circumstances set forth in the question, would be non-fulfillment of his professional obligations. If a lawyer has strong and genuine feelings of the kind presented here, he may properly make those feelings known to the court and request that he not be appointed or that his appointment be rescinded. It is unlikely that a judge will force a lawyer to carry out an appointment if the judge believes that the intensity of the lawyer's feelings is likely to preclude adequate representation of the defendant. But if the court, in its discretion, denies the lawyer's request, the lawyer will fail to fulfill his professional obligations if he refuses to serve.