Can a Tennessee lawyer appointed to represent a minor seeking judicial bypass of parental consent for an abortion decline the appointment on moral, religious, or malpractice-insurance grounds?

Plain-English summary

The inquiry came from an attorney who regularly practiced in juvenile court and had been appointed to represent minors petitioning for a waiver of the parental-consent requirement to obtain an abortion under T.C.A. §37-10-303(b). The attorney raised six interrelated questions, several of which the Board declined to answer because they were questions of law rather than ethics (the constitutionality of the bypass scheme, the minimum age to petition, and whether minors must be Tennessee residents).

On the ethical questions it could reach, the opinion concluded that an attorney who represents a minor under existing law (not yet declared unconstitutional) acts within the bounds of the law and does not violate DR 7-102(A)(2); treating a later finding of unconstitutionality as a basis for discipline would give that finding impermissible retrospective effect. The opinion read the governing statute and Title 37 to mean that appointed counsel represents only the minor, not as a guardian ad litem (whose duty runs to the court). Counsel therefore owed the minor the duty to explain the matter so she could make informed decisions (DR 7-101(A)(3)), the duty of zealous representation (DR 7-101(A)(4)), undivided loyalty (Canon 5; EC 5-1), and the duty to protect her confidences and secrets (DR 4-101). Whether to advise the minor about alternatives or to suggest she consult her parents was, the opinion said, a case-by-case judgment; strongly urging consultation with persons known to oppose the choice could call loyalty and zealous representation into question.

On the minor's competence, the opinion drew on Formal Ethics Opinion 92-F-129 and EC 7-12: if counsel believed the client incompetent or insane, counsel had the same obligation to advise the court as defense counsel in a criminal case, and could act to preserve the client's rights even absent the client's consent.

On declining the appointment, the opinion concluded that DR 6-102(A) (no attempt to limit malpractice liability to a client) made malpractice-insurance concerns an insufficient ground. As to the attorney's sincerely held religious objection, the opinion relied on EC 2-29 (appointed counsel should not seek to withdraw except for compelling reasons, which do not include repugnance of the subject matter) and on the Tennessee Supreme Court's decisions in State v. Jones and State v. Maddux. Under those decisions, a lawyer who questions an appointment must move the appointing court to be relieved, develop a record, and, if the motion is denied, seek appellate review rather than simply refuse the appointment. The opinion also pointed to Formal Ethics Opinion 84-F-73, which held that counsel's own moral beliefs must yield to the moral beliefs and legal rights of the client.

Currency note

This opinion was issued in 1996, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility (including the Disciplinary Rules and Ethical Considerations on which it relied), and before the ABA's 2002 Ethics 2000 revisions. It also predates substantial changes in the constitutional law governing parental-consent abortion statutes. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance, and verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could a Tennessee lawyer refuse a court appointment to represent a minor seeking an abortion bypass because of the lawyer's religious or moral objection?

A: Per the opinion, not by simply declining. It relied on EC 2-29 (repugnance of the subject matter is not a compelling reason to withdraw) and on State v. Jones and State v. Maddux to conclude that counsel must move the appointing court to be relieved, make a record, and seek appellate review if the motion is denied.

Q: Did appointed counsel represent the minor as her advocate or as a guardian ad litem?

A: The opinion read the statute and Title 37 to mean counsel represents only the minor as her advocate. It distinguished the guardian ad litem, whose duty under T.C.A. §§34-11-101(10) and 34-11-107(d) runs to the court rather than to the child.

Q: Did counsel have to advise the minor to talk to her parents or consider alternatives to abortion?

A: The opinion treated that as a case-by-case judgment. It cautioned that strongly urging a mature, well-informed client to consult persons known to oppose her choice could implicate the duties of loyalty (Canon 5; EC 5-1) and zealous representation (DR 7-101(A)(4)).

Q: Could counsel decline the appointment because of malpractice-insurance concerns?

A: No. The opinion concluded that DR 6-102(A), which bars a lawyer from attempting to limit malpractice liability to a client, made that an insufficient ground for declining.

Background and rules framework

The opinion interpreted the former Code of Professional Responsibility. The Disciplinary Rules it applied were DR 7-102(A)(2) (advancing claims under existing law), DR 7-101(A)(3) and (4) (representing a client zealously), DR 5-101(A) (employment affected by the lawyer's own interests), DR 6-102(A) (limiting liability to a client), DR 4-101 (confidences and secrets), and DR 2-110(A)(1) (withdrawal requiring tribunal permission), together with EC 2-29 (accepting appointments), EC 5-1 (undivided loyalty), and EC 7-12 (clients under a disability). The modern analogs are Model Rule 6.2 / Tennessee RPC 6.2 (accepting appointments), MR 1.7 (personal-interest conflicts), MR 1.14 (client with diminished capacity), MR 1.6 (confidentiality), MR 1.8(h) (limiting liability), and MR 1.16 (declining or terminating representation).

Citations and references

Rules of Professional Conduct (former Code):

• DR 7-102(A)(2) (advancing a claim under existing law); DR 7-101(A)(3)-(4) (zealous representation). Modern analog: Model Rule 6.2 / Tennessee RPC 6.2
• DR 5-101(A) (employment affected by the lawyer's own interests); EC 5-1 (undivided loyalty). Modern analog: Model Rule 1.7 / Tennessee RPC 1.7
• EC 7-12 (client under a disability). Modern analog: Model Rule 1.14 / Tennessee RPC 1.14
• DR 4-101 (confidences and secrets). Modern analog: Model Rule 1.6 / Tennessee RPC 1.6
• DR 6-102(A) (limiting malpractice liability to a client). Modern analog: Model Rule 1.8(h) / Tennessee RPC 1.8(h)
• DR 2-110(A)(1) (withdrawal requiring tribunal permission); EC 2-29 (accepting appointments). Modern analog: Model Rule 6.2 and Model Rule 1.16 / Tennessee RPC 6.2, 1.16

Statutes:

• T.C.A. §§37-10-303, 37-10-304 (judicial bypass of parental consent for abortion)
• T.C.A. §§34-11-101(10), 34-11-107(d) (duty of a guardian ad litem)

Cases:

• State v. Jones, 726 S.W.2d 515 (Tenn. 1987), contempt for refusing a court-ordered appointment
• State v. Maddux, 571 S.W.2d 819 (Tenn. 1978), reversal of summary contempt where counsel sought to be relieved
• Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987), free-exercise claim and offensive course materials

Other opinions cited:

• Tennessee Formal Ethics Opinion 92-F-129 (counsel's duty as to an incompetent client)
• Tennessee Formal Ethics Opinion 84-F-73 (counsel's moral beliefs yield to the client's)
• Tennessee Formal Ethics Opinions 83-F-52 and 85-F-100 (independent professional judgment)

See also

• ABA Formal Op. 07-448: Appointed Counsel, Refused Client
• Okla. Bar Ethics Op. 256: Refusing Indigent Appointments
• ABA Formal Op. 06-441: Excessive Indigent-Defense Caseloads

Source

• Landing page: https://www.tbpr.org/ethic_opinions/96-f-140

Original opinion text

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

96-F-140 - Appointed Counsel for Minor in Abortion Case

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 96-F-140

Inquiry is made as to several issues involving the ethical obligations of court-appointed counsel for minors who obtain abortions via judicial bypass of the parental consent for abortion provisions within Tennessee Code Annotated (T.C.A.) §§37-10-303 and 37-10-304.

The inquiring attorney routinely practices before the Juvenile Court in a particular county, and said attorney has been appointed to represent minors who have elected to petition the Juvenile Court for waivers of the parental consent requirement to obtain abortions, pursuant to T.C.A. §37-10-303(b) (ch. 458, Acts 1995, effective July 1, 1995). Several moral, ethical and constitutional law issues have been presented in the inquiry, and all of them are interrelated and sometimes conflicting.

The specific components of the inquiry posed are as follows: (1) have court-appointed attorneys for minors committed ethical violations where the above bypass procedures are later declared unconstitutional, and where abortions have already been performed; (2) is the role of court-appointed counsel under this statutory scheme that of advocate for the child or guardian ad litem; (3) should the appointed counsel advise the minor seeking an abortion about alternatives and/or advise her to speak with her parents or legal guardian about the potential abortion; (4) what is the minimum age that a minor can seek permission for an abortion, and is the appointed attorney required to inform the court if the client is believed to be non compos mentis; (5) can the appointed attorney decline to accept the appointment for moral, religious or malpractice insurance reasons; and (6) is there a requirement that minors seeking abortions under the judicial bypass provisions set out above be Tennessee residents.

Responding to these issues in order of their presentation, as to the first question, it appears that since the appointed attorney represents the minor under the provisions of existing law (which has yet to be declared unconstitutional), the attorney represents the client within the bounds of the law, and does not violate DR 7-102(A)(2). To suggest that an attorney would be subjected to ethical sanctions for such representation could be interpreted as granting a determination of unconstitutionality the effect of a retrospective law, prohibited by Article 1, §20 of the Tennessee Constitution, See Morris v. Gross, 572 S.W. 2d 902, 908 (Tenn. 1978); Morford v. Yong Khun Cho, 732 S.W. 2d 617, 619-620 (Tenn. App. 1987).

Resolution of the second question may be more appropriately determined by a court of law or by other authorities, as the issue appears more legal in nature than ethical. However, the statute regarding which inquiry is made and other provisions of T.C.A. Title 37 relating to juveniles suggest that the appointed attorney represents only the minor. T.C.A. §37-10-304(c)(1) states, in pertinent part, that...

...[t]he minor may participate in proceedings in the court on her own behalf or through next friend. The court shall advise her that she has a right to court-appointed counsel and shall provide her with such counsel upon her request...(Emphasis added).

Conversely, T.C.A. §§34-11-101(10) and 34-11-107(d) set forth that the guardian ad litem's duty is to the court, and not to act as advocate for the minor child.

If the appointed attorney represents only the minor (as we believe), then counsel has a duty to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." DR 7-101(A)(3). Whether informing the minor about alternatives to abortion and suggesting that she discuss the potential procedure with her parents or legal guardian is ethically appropriate may depend on a case-bycase analysis. If the minor is truly mature and well-informed enough to go forward and make the decision on her own, then counsel's hesitation and advice for the client to consult with others could possibly implicate a lack of zealous representation under DR 7-101(A)(4)(a) and (c) (a lawyer shall not intentionally fail to seek the client's lawful objectives, or prejudice or damage his client during the course of the professional relationship). Counsel also has a duty of undivided loyalty to his client, and should not allow any other persons or entities to regulate, direct, compromise, control or interfere with his professional judgment. Tennessee Formal Ethics Opinions 83-F-52 and 85-F-100; EC 5-1. To the extent that counsel strongly recommends that his client discuss the potential abortion with her parents or with other individuals or entities which are known to oppose such a choice, compliance with Canon 5 is called into question. In the same light, counsel himself is prohibited from discussing confidences and secrets of the client with such entities by DR 4-101.

The first portion of the fourth question is a purely legal question--the determination of the minimum age before minors can seek judicial permission for abortion is not within the ambit of this Board's authority. On the other hand, the second portion of this question can be addressed. If the client is believed to be incompetent or insane, appointed counsel in this scenario would appear to have the same obligation to advise the court as isrequired for defense counsel in criminal cases, pursuant to Tennessee Formal Ethics Opinion 92-F-129. The Board cited EC 7-12 in this formal opinion for the proposition that "any mental or physical condition of a client that renders [her] incapable of making a considered judgment on [her] own casts additional responsibility on [her] lawyer." Moreover, the Board went on to note that while generally a lawyer has no authority to act without the consent of his client, under circumstances where the client's competency is in question, the lawyer may act to preserve the client's rights. State v. Aumann, 265 N.W. 2d 316, 318 (Iowa 1978); EC 7-12.

Counsel's fifth question is the most difficult to answer, given that legal and ethical issues are inextricably intertwined. Essentially, counsel asks whether he can ethically decline such appointments due to malpractice insurance reasons, and a deepseated, sincere belief that appointments in such cases constitute state action violative of his free exercise of religion rights guaranteed by the First Amendment to the United States Constitution. DR 6-102(A) states that a lawyer should not attempt to exonerate himself from or limit his liability to his client for personal malpractice; thus, this reason does not appear to be a sufficient ground for declining such appointments. Counsel also alleges that he is a devout Catholic and cannot, under any circumstances, advocate a point of view ultimately resulting in what he considers to be the loss of human life. The religious beliefs are so compelling that counsel fears his own personal interests will subject him to conflicting interests and impair his independent professional judgment in violation of DR 5-101(A). In other words, counsel contends his status is akin to that of a conscientious objector, who is opposed to participation in abortion in any form.

Although counsel's religious and moral beliefs are clearly fervently held, EC 2-29 exhorts appointed counsel to refrain from withdrawal where a person is unable to retain counsel, except for compelling reasons. Compelling reasons as contemplated by this EC 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.

Several Tennessee cases addressing this issue from the perspective of contempt cast serious doubt on whether such an argument would prevail. In State v. Jones, 726 S.W. 2d 515, 518- 519 (Tenn. 1987), the Supreme Court upheld a contempt citation against an attorney who refused to accept a court-ordered appointment based on his interpretation of a formal ethics opinion, even where counsel's refusal was not disrespectful, unreasoning or contumacious. Procedurally, the Supreme Court held that in order for an attorney to avoid contempt for refusal to obey an order of appointment perceived to be erroneous, it was necessary for counsel to seek dissolution of the order in the appellate courts. Id. at 517. The court went on to hold that a lawyer who questions the propriety of an appointment has the burden of making a showing that a conflict of interest exists and that trial judges must afford counsel a reasonable opportunity to develop an adequate record on that issue for appellate review purposes. Id. at 520-521. On the contrary, in State v. Maddux, 571 S.W. 2d 819 (Tenn. 1978), the Supreme Court reversed counsel's summary contempt citation where counsel was merely seeking to be relieved of the appointment. Counsel's actions had not yet become an unreasoning and contumacious refusal to abide by the rulings of the court. Id. at 831. As to the reasons for seeking withdrawal, the Supreme Court reiterated that it would have scant sympathy for an attorney who sought to avoid representation merely because the defendant's cause was unpopular, or because the crime of which he was accused was distasteful, citing EC 2-29. Id.

Reported federal cases are similarly pessimistic on whether one's free exercise rights are unconstitutionally burdened under analogous facts. See Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987), cert. denied 484 U.S. 1066, 108 S.Ct. 1029, 98 L. Ed. 2d 993 (1988) (requiring children to read from texts they found offensive to their religious beliefs did not burden students' rights to free exercise of religion). Cf. U.S. v. Greene, 892 F. 2d 453, 456 (6th Cir. 1989), cert. denied 495 U.S. 935, 110 S. Ct. 2179, 109 L. Ed. 2d 508 (1990) (in order to assert free exercise of religion as a defense to violation of a criminal statute, defendant must establish that his beliefs constitute a religion within the meaning of the First Amendment and that statutes in question do not serve a compelling governmental interest).

Ultimately, counsel should allow the juvenile court to determine as a matter of law the propriety of his withdrawal after motion and hearing to develop an adequate record, pursuant to the Tennessee Supreme Court's Jones and Maddux decisions. Circumstances in which attorneys could face ethical sanctions can Formal Ethics Opinion 96-F-140 Page 5 be easily envisioned such as where permission to withdraw from a tribunal is required under DR 2-110(A)(1), and attorneys do not obtain same. Tennessee Formal Ethics Opinion 84-F-73 is also instructive on this issue, although this opinion specifically addresses ethical obligations of counsel in first degree murder cases. The Board opined, though, in cases involving conflicts between the moral and ethical beliefs of counsel and those of his client that:

...[c]ounsel's moral beliefs and usually acceptable ethical standards and duties must yield to the moral beliefs and legal rights of the defendant...

Counsel is ethically obligated to follow the law and to do nothing in opposition to the client's moral and legal choices...

Counsel should move the court to withdraw during the portion of the trial where the conflict is manifested. In the event the court fails to grant such motions, the attorney should seek an immediate review by the appellate court...

The sixth and final question posed by the inquiring attorney also appears to be solely an issue of law, and one more properly addressed by other entities or the courts. This opinion is only intended to address the ethical obligations of counsel.

This 13th day of June, 1996.

ETHICS COMMITTEE:

Donna S. Massa, Chair

Barbara J. Moss

Larry D. Wilks

APPROVED AND ADOPTED BY THE BOARD