May a lawyer refuse a court appointment to represent an indigent criminal defendant on the ground that his practice is limited to civil matters?

Plain-English summary

A county bar president asked whether members of the bar may refuse court appointments as counsel for indigents accused of crime in counties without a public defender, where local judges select attorneys at random and some always decline because their practice is limited to civil matters. The committee analyzed Canon 4 (assigned counsel for an indigent prisoner "ought not to ask to be excused for any trivial reason"), Canon 31 (a lawyer's right to decline employment generally), and 5 O.S. 1961 § 3, Seventh ("Never to reject for any consideration personal to himself the cause of the defenseless or the oppressed").

The committee observed that Canon 4's phrase "trivial reason" had not been precisely defined, so it looked to other sources. It noted that lawyers have always regarded representation of the indigent accused as an obligation of professional status, that after Gideon v. Wainwright a felony defendant is entitled to counsel as a matter of constitutional right, and that the basic responsibility for providing legal services to the indigent rests on the individual practitioner. It cited an ABA special-committee report listing factors that are not compelling reasons for excusal, including "repugnance of the subject of the proceeding."

Applying this, the committee concluded it is unethical for lawyers to refuse to represent indigents merely because they do not handle criminal cases, since in a county lacking any system to ensure counsel for the indigent, that basis is trivial; a desire to limit one's practice to civil matters does not let a lawyer shed a responsibility inherent in the privilege of being a lawyer. The committee added an important qualification: an attorney may protest an appointment on any ground, including a sincere feeling of inadequacy to handle the case (and indeed has a duty to tell the court if he cannot properly represent the defendant), but once the court independently determines he is qualified and competent, any refusal to accept the appointment and represent the person designated would be unethical conduct.

Currency note

This opinion was issued in 1969, during the era of the Canons of Professional Ethics, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions. The duty regarding court appointments survives in modern form in Rule 6.2, but the current rule's "good cause" standard and its treatment of appointments differ from Canon 4, and indigent-defense systems have changed substantially since 1969. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific obligation mentioned here.

Common questions

Q: Could a civil-only lawyer decline a court appointment to defend an indigent because he does not do criminal work?

A: No. The committee held that, in a county without a public defender, refusing on the ground that one handles only civil matters is a "trivial reason" under Canon 4 and is unethical.

Q: Could the lawyer raise any objection to the appointment?

A: Yes. The committee said a lawyer may protest on any ground, including a sincere feeling of inadequacy, and has a duty to tell the court if he cannot properly represent the defendant.

Q: What happens after the court decides the lawyer is competent?

A: Once the court independently determines the attorney is qualified and competent, the committee held that any refusal to accept the appointment and represent the indigent would be unethical conduct.

Background and rules framework

The opinion applied Canon 4 (assigned counsel should not seek excusal for trivial reasons), Canon 31 (the general right to decline employment), and 5 O.S. 1961 § 3, Seventh (duty not to reject the cause of the defenseless), all as adopted in Oklahoma, in light of Gideon v. Wainwright. The duty regarding court appointments corresponds to today's Model Rule 6.2. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 4 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): assigned counsel ought not seek excusal for trivial reasons.
• Canon 31: a lawyer's right to decline employment.

Statutes:

• 5 O.S. 1961 § 3, Seventh: duty of an attorney never to reject, for personal consideration, the cause of the defenseless or oppressed.

Cases:

• Gideon v. Wainwright, 372 U.S. 335 (1963), right to counsel in felony cases.
• Powell v. Alabama, 287 U.S. 45 (1932); Johnson v. Zerbst, 304 U.S. 458 (1938).

Other references:

• Henry S. Drinker, Legal Ethics (1953); Preliminary draft, Report of ABA Special Committee on Evaluation of Ethical Standards (Jan. 15, 1969); Report of the Attorney General's Committee on Poverty and the Administration of Criminal Justice (1963).

See also

• Okla. Bar Ethics Op. 254: Partner or officemate of an assistant DA defending criminal cases
• Okla. Bar Ethics Op. 245: Pardon and Parole Board member representing criminal defendants

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-256/

Original opinion text

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

Adopted August 21, 1969

INQUIRY

Is it ethical for members of the bar to refuse to accept appointments by the court as counsel for indigents accused in criminal matters, in counties where there is no public defender?

OPINION

Attorney A is president of his local county bar association and has requested an opinion from the Ethics Committee regarding the representation of indigents accused of crimes.

In his county, there are no public defender programs or other legal aid agencies available to assist indigents accused of crimes. The customary practice has been for local judges to select attorneys at random on a case to case basis. Attorney A advises the committee that several attorneys always decline such representation for the reason that their practice is limited to civil matters only, not criminal.

The inquiry presented involves the application of Canon 4 of the Canons of Professional Ethics and the duties of attorney and counsellor [sic] as set forth in 5 O.S.1961 Sec. 3. Canon 4 provides as follows:

"A lawyer assigned as counsel for an indigent prisoner ought not to ask to be excused for any trivial reason, and should always exert his best efforts in his behalf."

5 O.S.1961 Section 3 provides in part:

"It is the duty of an attorney and counselor:–Seventh. Never to reject for any consideration personal to himself the cause of the defenseless or the oppressed."

The inquiry also involves the application of Canon 31 which provides in part:

"No lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client. He has the right to decline employment. Every lawyer upon his own responsibility must decide what employment he will accept as counsel, …"

The inquiry involves a problem which is not new to the profession, but has been with every lawyer at some time in his career. How much time do I allot to charity work? In the past the lawyer had to weigh and balance his duty to the public and his duty to his clients through a solely subjective determination. At the very crux of the problem has the lack of any clear cut definition of the phrase "to ask to be excused for any trivial reason," which is contained in Canon 4. None of the opinions interpreting this canon have dealt specifically with the exact meaning of this phrase. Therefore, we must look to other sources for its meaning.

From the earliest times, lawyers have always regarded the acceptance and performance of service to indigent accused as one of the obligations incident to their professional status and privileges.

Judicial opinions have cast a clear duty on the profession in this area. Prior to the decision in Gideon v. Wainwright, a defendant was not entitled to counsel in felony criminal cases. However, with the decision in that case, one accused of a felony is entitled to counsel as a matter of constitutional right. Thus the profession must respond to a new and awesome challenge. Since this is only a recent development it is anticipated that formulation of a lawyer's actual duties is yet to come. However, it is universally agreed throughout the profession that the basic responsibility for providing legal services to the indigent ultimately rests upon the individual practitioner. Every lawyer regardless of professional pressures or his own self-regard or dedication to his "paying" clients should find time to assist in the representation of the indigent. Such responsibility devolving upon every lawyer is found in the quoted portion of 5 O.S.1961 § 3. It seems apparent to us that such a duty must be of sufficient concern for protection that the Legislature enacted a specific mandate to the Bar to preserve it.

As stated above, the definition of a trivial reason has not been adequately treated except in other sources.

The report of the ABA Special Study Committee referred to below does list certain factors which are not compelling reasons for excusal from representation of the indigent. One of these is "repugnance of the subject of the proceeding."

The responsibility of the lawyer has been termed "peculiar" in the just administration of the law. Included in this peculiar responsibility is providing advice and representation for needy persons. The Bar has and should continue to perform these services with zeal and devotion.

See Drinker, H. S. Legal Ethics New York Columbia University Press 1953, 62; Powell v. Alabama 287 U.S. 45 (1932), Johnson v. Zerbst 304 U.S. 458 (1938); 372 U.S. 335; Preliminary draft, Report of ABA Special Committee on Evaluation of Ethical Standards Jan. 15, 1969; Report of ABA, supra p. 18; Report of Atty. Gen.'s Committee on Poverty and the Administration of Criminal Justice 41_43 (1963).

Of course there are several means that attorneys can employ to attain these ends; larger counties in this state have provided full time attorneys to provide such service. Other jurisdictions have required all attorneys who are licensed to practice before its tribunals to place their names on a roll or roster which is maintained by the clerk of court. These attorneys rotate the responsibilities among themselves. However, the problem is particularly difficult of solution in the smaller counties which may be unable to afford such elaborate vehicles for the defense of the indigent. It is in these counties that the individual lawyer should be more aware of his responsibility under the Canons and Title 5 O.S.1961, Sec. 3. It is in this situation that the burden of defending the indigent accused always seems to fall on a few members of the bar. When this occurs it is our opinion that the many have neglected their responsibility under the Canons and statute besides being discourteous to their fellow lawyers and the Bar Association itself by not assisting in the bar's responsibility to the public.

It would therefore seem to us that it is unethical for lawyers to refuse to represent indigents in your county for the reason that they do not handle criminal cases. Our reason is based upon the fact that in light of the circumstances present in your county with respect to the lack of any system or procedure insuring counsel for indigent, the basis of the refusal to represent mentioned above would be trivial. In the situation confronting us herein we don't find anything which permits a lawyer to lessen or refuse a responsibility which he acquires by virtue of the privilege of being a lawyer on the basis of a desire to limit his practice to civil matters. On the other hand we find that an obligation to represent the defenseless or indigent is inherent in our calling as attorneys and we cannot shirk it.

By this opinion this Committee does not mean that an attorney about to be appointed or who has been appointed by a court to represent an indigent in a criminal matter may not protest to the court on any ground he so desires including his feeling of inadequacy to handle the case in question; in fact it would even be the duty of the attorney to inform the court if he sincerely feels that he cannot properly represent the defendant. However, after the court has determined by its own independent judgment that the attorney is qualified and competent to represent the indigent, then any refusal by the attorney to accept the appointment and thereafter represent the person designated by the court, would constitute unethical conduct.