Can a lawyer volunteer, without pay, to represent a prisoner he believes was wrongly convicted, when he has no relationship with the prisoner?

Plain-English summary

An attorney received credible information that a convict serving an eight-year sentence was erroneously imprisoned for another's offense, and his review of the official records substantiated it and indicated that exculpatory evidence, available but not presented at trial, would be exonerating on a new trial. He tried to get those in authority to act but met indifference. He had never represented the prisoner, did not know him, had no authority from the prisoner or his family, and was willing to act without pay. The inquiry asked whether he could ethically volunteer his services when his only motive was to see justice done.

The Committee held it would be ethical for the lawyer to volunteer to represent the convicted person to present grounds or evidence showing an unjust conviction, provided (a) the convicted person authorizes the procedure and (b) the lawyer scrupulously avoids taking compensation in any form. Because the attorney-client relationship is personal and involves a high fiduciary duty, the Committee held the lawyer could not represent the prisoner without authorization.

On whether the lawyer could solicit unpaid "employment" by the prisoner, the Committee noted Canon 24 forbids solicitation not warranted by personal relationship, but recognized that an attorney may sometimes offer to handle a matter without charge for one whose rights he feels have been invaded, when not motivated by financial gain, publicity, or other personal benefit. It cited In re Ades, 6 F. Supp. 467 (D. Md. 1934), which said it cannot be an inflexible maxim that a lawyer may never volunteer his services to a litigant in need, noting historic examples such as Alexander Hamilton in Croswell v. The People and Reverdy Johnson in the Dred Scott case, and also cited Gunnels v. Atlanta Bar Association. The ruling was 9-0.

Currency note

This opinion was issued in 1961, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. It also predates Bates v. State Bar of Arizona, 433 U.S. 350 (1977), which loosened categorical advertising restrictions, though prohibitions on solicitation were not eliminated. 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 Treat this page as historical context, not current guidance.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 a lawyer offer free representation to someone he believes was wrongly convicted?

A: Under this opinion, yes, within limits. The Committee said it would be ethical to volunteer to represent the convicted person, provided the person authorizes the representation and the lawyer takes no compensation in any form.

Q: Can the lawyer act without the prisoner's authorization?

A: No. The Committee said the attorney-client relationship is so personal and involves such a high fiduciary duty that the lawyer cannot undertake to represent the prisoner without authorization.

Q: Isn't offering free help a form of barred solicitation?

A: The Committee said Canon 24 forbids solicitation not warranted by a personal relationship, but recognized that a lawyer may offer to handle a matter without charge for one whose rights he feels were invaded when not motivated by gain, publicity, or other personal benefit, citing In re Ades.

Background and rules framework

The opinion interprets former Texas Canon 24, which prohibited solicitation of professional employment not warranted by a personal relationship, as applied to a lawyer offering free help to a stranger he believed wrongly convicted. The modern analogs are ABA Model Rule 7.3, on solicitation of clients, and Model Rule 6.1, on voluntary pro bono service.

Citations and references

Rules of Professional Conduct:

• MR 7.3 (solicitation of clients), as the modern analog
• MR 6.1 (voluntary pro bono service), as the modern analog
• Texas Canon 24 (former canon)

Cases:

• In re Ades, 6 F. Supp. 467 (D. Md. 1934), a lawyer may sometimes volunteer services to a litigant in need
• Gunnels v. Atlanta Bar Association, 12 S.E.2d 602, cited on volunteering services

See also

• TX Ethics Op. 265: Soliciting Work via a Friend
• TX Ethics Op. 246: Lawyer on a Church Wills Committee
• TX Ethics Op. 257: Lawyer's Letter to a Juror

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-240/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_240.pdf

Original opinion text

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

QUESTION PRESENTED

An attorney has received creditable information to the effect that a convict, now confined in the Texas State Penitentiary, is erroneously serving an 8 year sentence (from the county in which said attorney resides) for another's offense. Attorney's investigation of official records substantiates the information received and indicates that exculpative evidence, available but not presented at the trial of the cause would be exonerative on a new trial, should there be one. Believing that a grave injustice has been done, attorney states he sought the attention of those in proper authority in order that a correction might be effected, but his efforts were met with indifference, and it appears that those who could rightfully act have no intention of doing so.

Attorney states that he has at no time represented the prisoner in question (prisoner was defended by court-appointed counsel); attorney does not know the prisoner nor has he communicated with him; attorney has no authority from the prisoner or his family to intercede in the prisoner's behalf but, being convinced of the propriety of a writ and of a subsequent acquittal, attorney is willing to act in prisoner's behalf without pay.

May an attorney under such circumstances ethically volunteer his services when his only motive is to see justice done?

18 Baylor L. Rev. 319 (1966)

SOLICITATION
It would be ethical for a lawyer to volunteer to represent, and to represent, a convicted person in order to present to the proper court grounds or evidence which would show that the convicted person has been unjustly convicted in accordance with the law, provided (a) the convicted person authorizes the procedure in his behalf and (b) the attorney who volunteers scrupulously avoids taking any compensation in any form for his services.

Canon 24.

The committee is of the opinion that it would be ethical for a lawyer to volunteer to represent, and to represent, a convicted person in order to present to the proper court grounds or evidence which would show that the convicted person has been unjustly convicted in accordance with the law, provided (a) the convicted person authorizes the procedure in his behalf and (b) the attorney who volunteers scrupulously avoids taking any compensation in any form for his services.

The circumstances presented in this question are that the attorney has no official position in which to act and that any action by him would necessarily be or purport to be on behalf of the prisoner. The attorney is motivated to represent the prisoner without pay because of his sense of justice and not for his own gain in any manner. His personal relationship with the prisoner is, however, virtually non-existent.

The relationship of attorney-client is so personal and involves such a high fiduciary duty that an attorney cannot undertake to represent one without authorization. The committee, therefore, holds that the attorney cannot represent the prisoner without authorization.

This leaves the obvious question: Can the attorney solicit unpaid "employment" by the prisoner to handle the matter for him? Canon 24 forbids solicitation of professional employment when the same is not warranted by personal relationship. In spite of this, it has sometimes been recognized that an attorney may solicit business in the sense that he offers to handle a legal matter without charge for one whose rights he feels have been invaded, when the attorney is not motivated by thought of securing financial gain, publicity, or other personal benefit. Such a case is In Re Ades, 6 F. Supp. 467 (D.C., Md., 1934), in which the court said that it "cannot be laid down as an inflexible maxim that a lawyer may never volunteer his services to a litigant, where the litigant is in need of assistance . . ." The court cited many well known instances, where prominent lawyers, including Alexander Hamilton in Croswell vs. The People, and Reverdy Johnson in the Dred Scott case, volunteered services. Also see Gunnels vs. Atlanta Bar Association, 12 S. E. 2d 602. Also see Casenote 8 So. Calif. L. Rev. 239 (1935). (9-0.)

Tex. Comm. On Professional Ethics, Op. 240 (1961)