Can an attorney who is not competent to handle criminal cases accept a court appointment to represent an indigent criminal defendant?

Currency note

This opinion was issued in 1981, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Subsequent rule amendments or later opinions (including Formal Ethics Opinion 92-F-127) revisited this guidance. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Plain-English summary

The inquiry concerned a mid-state county's long-standing practice of appointing all attorneys in the county to represent indigent criminal defendants by rotation, without regard to an attorney's practice area or interest in criminal law. The Board was asked whether an attorney not competent to handle criminal cases could properly accept such an appointment.

The Board reasoned from Canon 2 of the Code of Professional Responsibility, which states that a lawyer should help the profession make legal counsel available. The Ethical Considerations under Canon 2 set out aspirational objectives: EC 2-16 says lawyers should support making legal services available to those unable to pay; EC 2-25 describes the profession's historical obligation to serve the disadvantaged through donated services, court appointments, and programs like legal aid; EC 2-26 says a lawyer should not lightly decline proffered employment; and EC 2-29 says a lawyer appointed by a court should not seek to be excused except for compelling reasons, which do not include the repugnance of the subject matter, the identity of a party, or the lawyer's belief about guilt or the merits. EC 2-30, by contrast, says employment should not be accepted when a lawyer is unable to render competent service.

Disciplinary Rule 6-101(A)(1), unlike the aspirational Ethical Considerations, is mandatory: a lawyer shall not handle a matter he knows or should know he is not competent to handle. Applying that mandatory rule, the Board concluded that an attorney who is not competent to handle criminal cases should respectfully decline appointment by the court to such cases.

Common questions

Q: Must a lawyer accept a criminal appointment even if the lawyer has no criminal law experience?

A: No. The opinion concludes "an attorney who is not competent to handle criminal cases should respectfully decline appointment by the court of such cases," applying Disciplinary Rule 6-101(A)(1), which "states, in part: A lawyer shall not handle a legal matter which he knows or should know that he is not competent to handle."

Q: Does the aspirational duty to serve the disadvantaged override the competence rule?

A: No. The Ethical Considerations (EC 2-16 through EC 2-29) describe the profession's aspirational commitment to making counsel available, but the opinion notes the Disciplinary Rules "are mandatory in character and state the minimum level of conduct below which no lawyer can fall," and EC 2-30 itself says "employment should not be accepted by a lawyer when he is unable to render competent service."

Q: Can a lawyer decline an appointment just because the case is unpleasant or the defendant seems guilty?

A: No. EC 2-29, as quoted in the opinion, states that "compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case." Competence, not distaste for the case, is the ground for declining addressed here.

Background and rules framework

The opinion applied Disciplinary Rule 6-101(A)(1) of the Tennessee Code of Professional Responsibility (competence), read together with the aspirational Ethical Considerations under Canon 2 (EC 2-16, 2-25, 2-26, 2-29, and 2-30) on making legal services available and accepting court appointments. The modern correlates are Model Rule 1.1 (competence) and Model Rule 6.2 (accepting appointments), noted here as navigational cross-references rather than rules the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• DR 6-101(A)(1) (competence) and Ethical Considerations 2-16, 2-25, 2-26, 2-29, and 2-30 (making legal counsel available; accepting and declining appointments), Tennessee Code of Professional Responsibility
• Model Rule 1.1 (competence) and Model Rule 6.2 (accepting appointments), modern correlates

See also

• Tenn. Ethics Op. 83-F-47: Delegating a Court Appointment
• Tenn. Ethics Op. 92-F-127: A Lawyer Not Competent in Criminal Cases Who Is Appointed
• Okla. Bar Ethics Op. 256: Refusing Indigent Appointments

Source

• Landing page: https://www.tbpr.org/ethic_opinions/81-f-24

Original opinion text

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

81-F-24 - Appointed to Criminal Case

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 81-F-24

An inquiry has been made concerning the propriety of an attorney who is not competent to handle criminal cases accepting representation in a criminal case.

There has been a long standing practice in the courts of a mid-state county to appoint all attorneys in the county to represent indigents accused of criminal offenses by rotation without regard to their practice, intention to practice or interest in becoming or remaining proficient in the area of criminal law.

Canon 2 of the Code of Professional Responsibility states the axiom that a lawyer should assist the legal profession in fulfilling its duty to make legal counsel available. Certain Ethical Considerations under Canon 2 state the aspirational objectives toward which attorneys should strive in making legal counsel available. They state principles upon which the attorney can rely for guidance. The relevant portions of the Ethical Considerations under Canon 2 are:

EC 2-16

... persons unable to pay a reasonable fee should be able to obtain necessary legal services, and lawyers should support and participate in ethical activities designed to achieve that objective.

EC 2-25

Historically, the need for legal services of those unable to pay reasonable fees has been met in part by lawyers who donated their services or accepted court appointments on behalf of such individuals. The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer, but the efforts of individual lawyers are often not enough to meet the need. Thus it has been necessary for the profession to institute additional programs to provide legal services. Accordingly, legal aid offices, lawyer referral services and other related programs have been developed, and others will be developed, by the profession. Every lawyer should support all proper efforts to meet this need for legal services.

EC 2-26

... in furtherance of the objective of the bar to make legal services fully available, a lawyer should not lightly decline proffered employment. The fulfillment of this objective requires acceptance by a lawyer of his share of tendered employment which may be unattractive both to him and the bar generally.

EC 2-29

When a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, he should not seek to be excused from undertaking the representation except for compelling reasons. Compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case.

EC 2-30

Employment should not be accepted by a lawyer when he is unable to render competent service ....

Disciplinary Rule 6-101(A)(1) states, in part:

A lawyer shall not handle a legal matter which he knows or should know that he is not competent to handle ....

The Disciplinary Rules, unlike the Ethical Considerations, are mandatory in character and state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action. Therefore, an attorney who is not competent to handle criminal cases should respectfully decline appointment by the court of such cases in accordance with the authorities cited herein.

This 31st day of December, 1981.

ETHICS COMMITTEE:

A. B. Goddard

Jack C. Raulston

John T. Henniss DISSENTS

APPROVED AND ADOPTED BY THE BOARD