After being appointed to defend an indigent criminal client, can the lawyer accept private payment from that client to keep representing them in the same case?

Plain-English summary

The inquiry asked whether an attorney appointed to represent an indigent criminal defendant under G.S. §§7A-452, 458, and 459 could later accept employment by the same defendant on a retained basis in the same case, and on what conditions.

The opinion concluded that appointed counsel may not accept payment from the client. The indigent-appointment regulation (27 N.C.A.C. 1D .0406(f)) provides that appointed counsel "shall not accept any compensation other than that awarded by the court," and read with Rule 2.6's bar on collecting an illegal fee, that means no client payment for the services. If the client expresses a desire and ability to retain the lawyer personally, the lawyer may advise the court, seek release from the appointment, and seek to be entered as retained counsel of record. Because of the potential for overreaching and to avoid reinforcing the notion that retained lawyers outperform appointed ones, a lawyer who knows or suspects an appointed client can afford counsel should never suggest that the client privately employ him. If the lawyer becomes convinced the client has adequate resources, the opinion concluded that Rule 7.2(b)(1) requires the lawyer to call on the client to reveal that to the tribunal so the state can be relieved and a fraud on the court avoided, and, if the client refuses to permit disclosure, to move to withdraw.

Currency note

This opinion was issued in 1989, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct (the bar's editor's note also points to Rule 3.3 of the Revised Rules for additional considerations). The provisions it applies (Rule 2.6 on illegal fees and Rule 7.2(b)(1) on disclosure to the tribunal) have since been renumbered and revised (the corresponding Model Rules are 1.5, 3.3, and 1.16). 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 Treat this page as historical context, not current guidance.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 private payment from the indigent client?

A: No. The opinion concluded that appointment rules and the illegal-fee rule limit appointed counsel's compensation to what the court awards.

Q: Can the lawyer switch to retained counsel if the client wants and can pay?

A: Yes, through the court. The opinion concluded the lawyer may advise the court, seek release from the appointment, and seek entry as retained counsel.

Q: Can the lawyer suggest that the client hire him privately?

A: No. The opinion concluded a lawyer who knows or suspects the client can afford counsel should never suggest the client privately employ him.

Q: What must the lawyer do if convinced the client can actually afford counsel?

A: The opinion concluded the lawyer must call on the client to reveal that to the tribunal under Rule 7.2(b)(1), and move to withdraw if the client refuses to permit disclosure.

Background and rules framework

The opinion applied North Carolina Rule 2.6, barring the collection of an illegal fee (corresponding to Model Rule 1.5), and Rule 7.2(b)(1), requiring disclosure to the tribunal to avoid a fraud on the court (corresponding to Model Rule 3.3), with the withdrawal obligation tracking Model Rule 1.16. The indigent-appointment regulation 27 N.C.A.C. 1D .0406(f) supplied the rule that appointed counsel may take only court-awarded compensation.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 2.6 (illegal fee)
• North Carolina Rule 7.2(b)(1) (disclosure to the tribunal)
• MR 1.5 (fees); MR 3.3 (candor toward the tribunal); MR 1.16 (declining or terminating representation)

Regulations:

• 27 N.C.A.C. 1D .0406(f) (appointed counsel may accept only court-awarded compensation)

Statutes:

• N.C. Gen. Stat. §§7A-452, 458, 459 (appointment of counsel for indigent defendants)

See also

• NC Ethics Op. RPC 58: substitution of criminal defense counsel
• NC Ethics Op. RPC 148: division of fees

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-52/

Original opinion text

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

Editor's Note: See Rule 3.3 of the Revised Rules for additional considerations.

Inquiry:

May an attorney, after having been appointed to represent an indigent defendant in a criminal case pursuant to G.S. §7A-452, 458, and 459, accept employment by the same defendant in a retained capacity in the same case? If so, under what circumstances.

Opinion:

Rule .0406(f) of the Rules and Regulations of the North Carolina State Bar Relating to the Appointment of Counsel for Indigent Defendants in Certain Criminal Cases (27 N.C.A.C. 1D .0406(f)) provides that "[C]ounsel appointed for the representation of indigent defendants shall not accept any compensation other than that awarded by the court." This provision, when read in conjunction with Rule 2.6 of Rules of Professional Conduct prohibiting the collection of an "illegal fee," clearly indicates that an appointed counsel may not accept payment from his or her client for professional services. If during the course of the representation, the client indicates to the attorney a desire and the ability to personally employ the attorney's services, it would be appropriate for the attorney to advise the court of his or her client's desire, seek to be released from responsibility as appointed counsel, and seek to be entered as counsel of record on a retained basis. Because of the tremendous potential for overreaching and to avoid reinforcing the commonly held notion that a privately retained attorney will perform better than appointed counsel, a lawyer who knows or suspects that a client he or she has been appointed to represent is financially capable of employing counsel should never suggest that the client ought to privately employ him or her. Of course if the attorney becomes convinced that the client does have adequate personal resources to retain private counsel, it would be the attorney's duty under Rule 7.2(b)(1) to call upon his client to reveal that circumstance to the tribunal so that the state might be relieved of the burden of supplying counsel and a fraud on the court avoided. Pursuant to the same rule, the lawyer should, in the event his or her client refuses to permit the disclosure of his or her actual financial situation, move to withdraw.