Can a lawyer appointed by the court to represent indigent criminal defendants hire or assign another lawyer to handle the appointed cases?

Currency note

This opinion was issued in 1983, 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 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 Treat this page as historical context, not current guidance.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.

Plain-English summary

An attorney asked whether he could employ another attorney to act on his behalf in representing indigent criminal defendants he had been appointed by the court to represent.

The opinion first noted that Formal Ethics Opinion 81-F-24 holds that an attorney who is not competent to handle criminal cases should respectfully decline such appointments under Disciplinary Rule 6-101(A)(1), so it considered the inquiry only as to attorneys competent to handle the cases. It then surveyed the Code's aspirational Ethical Considerations on making legal counsel available to those who cannot pay (EC 2-16, 2-25, 2-26, and 2-29), under which a lawyer should not lightly decline proffered employment and, when 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 or position of a person involved, or the lawyer's belief about guilt or the merits.

The opinion observed that the duty to represent the poor is largely moral and aspirational, with no Disciplinary Rule making it mandatory, but that special affirmative duties arise when a court is the impetus for the representation. It concluded that an attorney appointed by the court to defend an indigent criminal defendant should not seek to be excused except for compelling reasons, but that in such instances the duty may be delegated or assigned to another consenting attorney with the prior knowledge and consent of the court.

Common questions

Q: Can a court-appointed lawyer pass the case to another lawyer?

A: Yes, with the court's involvement. The opinion concluded "the duty of the attorney may be delegated or assigned to another consenting attorney with the prior knowledge and consent of the Court."

Q: Can an appointed lawyer simply decline the appointment?

A: Generally not. The opinion stated the appointed attorney "should not seek to be excused from undertaking the representation except for compelling reasons," and that compelling reasons do not include the repugnance of the subject matter, the identity or position of a person involved, or the lawyer's belief about the defendant's guilt or the merits.

Q: What if the lawyer is not competent to handle criminal cases?

A: The opinion noted, citing 81-F-24, that an attorney not competent to handle criminal cases should respectfully decline the appointment under Disciplinary Rule 6-101(A)(1); the delegation question was addressed only for competent attorneys.

Background and rules framework

The opinion applied the aspirational Ethical Considerations of the Tennessee Code of Professional Responsibility on making counsel available (EC 2-16, EC 2-25, EC 2-26, and EC 2-29) and Disciplinary Rule 6-101(A)(1) (competence) as construed in Formal Ethics Opinion 81-F-24. The modern correlates are Model Rule 6.2 (accepting appointments) and Model Rule 1.1 (competence), 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, and 2-29 (making legal counsel available), Tennessee Code of Professional Responsibility
• Model Rule 6.2 (accepting appointments) and Model Rule 1.1 (competence), modern correlates

Other opinions cited:

• Tennessee Formal Ethics Opinion 81-F-24, an attorney not competent in criminal cases should decline the appointment

See also

• Tenn. Ethics Op. 81-F-24: Declining a Criminal Appointment for Lack of Competence
• Tenn. Ethics Op. 92-F-127: A Lawyer Not Competent in Criminal Cases Who Is Appointed
• CA Ethics Op. 1970-023: Duty to Accept Court Appointments
• ABA Formal Op. 470: Judicial Encouragement of Pro Bono Service

Source

• Landing page: https://www.tbpr.org/ethic_opinions/83-f-47

Original opinion text

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

83-F-47 - Delegation of Appointment

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 83-F-47

Inquiry is made concerning the propriety of an attorney employing another attorney to act in his behalf in representing indigent criminal defendants whom he has been appointed by the Court to represent.

Tennessee Formal Ethics Opinion 81-F-24 holds that an attorney who is not competent to handle criminal cases should respectfully decline appointment by the Court of such cases pursuant to Disciplinary Rule 6-101(A)(1) of the Code of Professional Responsibility. Thus, we now consider this inquiry only from the view of those attorneys who are competent to handle such cases.

The Code of Professional Responsibility provides aspirational objectives toward which attorneys should strive in making legal counsel available as follows:

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.

The attorney's duty is largely moral and remains to be aspirational and voluntary in most instances, for no disciplinary rule of the Code compels or makes it mandatory for an attorney to represent the poor. However, when the courts are the impetus for representation, then special affirmative duties arise.

The attorney who is appointed by the Court to defend an indigent criminal defendant should not seek to be excused from undertaking the representation except for compelling reasons. However, in such instances, the duty of the attorney may be delegated or assigned to another consenting attorney with the prior knowledge and consent of the Court.

This 23rd day of May , 1983.

ETHICS COMMITTEE:

F. Evans Harvill

Oscar B. Hofstetter, Jr.

William R. Willis

APPROVED AND ADOPTED BY THE BOARD