May a court-appointed criminal defense lawyer accept a gift from the indigent client, such as cookies, an oil change, or a small amount of cash?

Plain-English summary

Bar Counsel asked whether an attorney appointed to represent an indigent criminal defendant under M.R. Crim. P. 44(c) could accept a proposed gift of a box of homemade cookies, a small amount of cash, or an oil change for the attorney's car, before or after the case concludes, without violating Rule 3.2(f)(4). Rule 44(c) bars an appointed lawyer from accepting "compensation" from a non-court source for defense "services or costs" absent court authorization, and the Law Court has treated such acceptance as conduct prejudicial to the administration of justice under Rule 3.2(f)(4) (State v. Grant; Board of Overseers v. Rodway).

The Commission cautioned that it lacks jurisdiction to construe court rules and offered its discussion only as ethical observation rather than a definitive construction of Rule 44(c). It identified the rule's two concerns: ensuring that available funds are brought to the court's attention so taxpayers can be reimbursed or private payment substituted, and preserving the court's authority to determine reasonable compensation. In light of those interests, the Commission concluded that unsolicited gifts of nominal value, like cookies, are not compensation for services or costs, and the same is true of the gratuitous, unsolicited performance of a personal service of nominal value, like an oil change. Assuming the gratuities are unsolicited, it makes no difference whether they occur during or after the representation.

Cash differs. A cash gift of however small an amount, during or after the case, evidences some ability to contribute financially to the defense or reimburse the State, so the lawyer should reject the tender. The Commission added that a lawyer in any questionable instance can seek court authorization, and the cautious practitioner would be wise to do so whenever in doubt. A footnote warned that the attorney should never solicit or bargain for "gratuitous" goods or services from an indigent defendant.

Currency note

This opinion was issued in 1991, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). Subsequent rule amendments or 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Can appointed counsel accept a small non-cash gift from an indigent client?

A: The opinion concluded yes for unsolicited gifts of nominal value, such as cookies or an oil change, treating them as not "compensation" under the appointed-counsel rule.

Q: Can appointed counsel accept a cash gift from the client?

A: The opinion concluded no. It reasoned that a cash gift of any amount signals an ability to contribute to the defense, so the lawyer should refuse it.

Q: Does it matter whether the gift comes during or after the case?

A: The opinion stated that, assuming the gift is unsolicited and of nominal non-cash value, it makes no difference whether it occurs during the representation or after the matter concludes.

Q: What should a lawyer do when unsure?

A: The opinion advised that a ready avenue exists to seek court authorization, and the cautious practitioner would be wise to do so whenever in doubt.

Background and rules framework

The opinion interprets Maine Bar Rule 3.2(f)(4) (conduct prejudicial to the administration of justice) as applied through M.R. Crim. P. 44(c), which bars appointed counsel from accepting compensation from a non-court source for defense services or costs without court authorization. This corresponds to ABA Model Rule 8.4(d) (conduct prejudicial to the administration of justice).

Citations and references

Rules of Professional Conduct:

• Model Rule 8.4(d) (conduct prejudicial to the administration of justice)
• Maine Bar Rule 3.2(f)(4); M.R. Crim. P. 44(c)

Cases:

• State v. Grant, 487 A.2d 627 (Me. 1985); Board of Overseers v. Rodway, 461 A.2d 1062 (Me. 1983)
• Matter of Dwyer, 399 A.2d 1 (D.C. Ct. App. 1979), construing 18 U.S.C.A. § 3006A(f)

Other opinions cited:

• Maine Professional Ethics Commission Op. 76: Commission's lack of jurisdiction to construe court rules

See also

• Maine Ethics Op. 148: Indigent-Defense Financial Disclosure
• ABA Formal Op. 06-441: Excessive Indigent-Defense Caseloads

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89880

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: April 25, 1991

Question Presented

Attorney A is court-appointed to represent an indigent criminal defendant pursuant to M.R. Crim. P. 44(c). The defendant proposes to make a gift to the attorney consisting of any of the following: a box of homemade cookies, a small amount of cash, or changing the oil in the attorney's car. The gift may be made before or after the conclusion of the case. Bar Counsel inquires if the attorney may accept any of these gifts without violating Rule 3.2 (f)(4) of the Maine Code of Professional Responsibility.

Opinion

Rule 44(c) of the Maine Rules of Criminal Procedure expressly prohibits an appointed lawyer from subsequently accepting "compensation" from a source other than the court for "services or costs" of defense, absent court authorization. The Maine Supreme Judicial Court has deemed such action to constitute "conduct prejudicial to the administration of justice" in violation of Rule 3.2(f)(4). State v. Grant, 487 A.2d 627 (Me. 1985); Board of Overseers v. Rodway, 461 A.2d 1062 (Me. 1983).

We approach the issue presented in this case with some caution, insofar as this Commission recognizes its lack of jurisdiction to construe court rules or statutes. See, e.g., Opinion No. 76. However, we offer the following discussion in the spirit of observing certain ethical ramifications raised by the inquiry, rather than as any attempt definitively to construe M.R. Crim. P. 44(c).

Rule 44(c)'s closing prohibition against the acceptance of other compensation by a court-appointed attorney "except pursuant to court order" appears principally aimed to meet two concerns. First, if funds become available to defray the court-appointed attorney's fee, that circumstance must be brought to the court's attention to enable the court to protect the taxpayers' interest in reimbursement, or substitution of private payment. Second, the Rule preserves the court's ultimate authority to determine in the first instance what constitutes "reasonable compensation" for the attorney's services in the case. See Criminal Rules Committee Advisory Notes, March 1, 1973; cf. Matter of Dwyer, 399 A.2d l (D.C. Ct. App. 1979), construing 18 U.S.C.A. Sec. 3006 A(f).

In light of the rule's history and the interests it seeks to protect, this Commission is of the opinion that unsolicited gifts of nominal value, such as a box of cookies, do not constitute compensation for services or costs within the meaning of Rule 44(c), such that Rule 3.2 (f)(4) concerns are present. Similarly, the gratuitous and unsolicited performance of a personal service of nominal value, such as an oil change for the attorney's car, is not compensation in the sense contemplated by the rule. Assuming that such gratuities are indeed unsolicited, it is immaterial whether the act occurs during the course of ongoing representation or after the underlying matter is concluded.[1]

Our view of the offering of cash, in however small an amount, necessarily differs from the above. To the extent of a cash "gift" to the lawyer by the defendant during the pendency of a case, or after its conclusion, the defendant evidences some ability to contribute financially to his/her defense or to reimburse the State for its outlay. The lawyer should reject the tender.

In any questionable instance, a ready avenue exists for court-appointed counsel to determine if an unsolicited gift is acceptable in view of Rule 44(c). The cautious practitioner would be wise to seek court authorization whenever in doubt.

Footnote

[1] Obviously, the attorney should not solicit or bargain for "gratuitous" goods or services, of nominal value or otherwise, from an indigent Defendant. Some concern might well exist that the allowance of even unsolicited gifts of nominal value might in time have the unintended effect of encouraging a defendants' culture wherein the indigent feels compelled to do "something extra" for his/her attorney in order to ensure zealous advocacy. While sensitive to this possibility, we regard it as sufficiently remote that it can, for the present, be discounted.