Can court-appointed counsel for an indigent defendant accept a partial fee from the defendant's family as well as the county's appointment fee?

Plain-English summary

An attorney was appointed by the court to defend an indigent in a criminal case. After the appointment, it was learned that the defendant's family could raise some money toward attorney's fees, though not enough to hire other counsel, so the family wanted the appointed attorney to continue and the court would not release him from the appointment. The Committee was asked whether it is unethical for the attorney to accept a substantial fee from the family even though it is insufficient to fully compensate him, and whether, if he accepts payment from the family, it would be unethical also to accept the customary fee the county pays appointed counsel.

The Committee concluded that, applying Canon 35 (which bars accepting compensation from others without the client's full knowledge and consent after full disclosure), the attorney may accept fees from the family as well as from the county if full disclosure is made to the defendant, the family, and the Court, so long as the total fee is not excessive and is not above a reasonable fee as determined by Canon 11. It cited ABA Informal Opinion C-733 and Drinker on Legal Ethics 62-63.

Currency note

This opinion was issued in 1969, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Acceptance of compensation from someone other than the client is now governed by Texas Rule 1.08 and ABA Model Rule 1.8(f), and the reasonableness of fees by Texas Rule 1.04 and Model Rule 1.5. 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 Treat this page as historical context, not current guidance.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: May appointed counsel accept a partial fee from the defendant's family?

A: Yes, with disclosure. The Committee concluded that the attorney may accept fees from the family if full disclosure is made to the defendant, the family, and the Court, and the total fee stays reasonable.

Q: May he also take the county's appointment fee?

A: Yes. The Committee concluded the attorney may accept fees from both the family and the county, provided full disclosure is made and the total fee is not excessive under Canon 11.

Q: What is the controlling limit on the total fee?

A: The Committee said the total fee must not be excessive and must not exceed a reasonable fee as determined by Canon 11.

Background and rules framework

The opinion interprets former Texas Canon 35 (compensation from others, requiring the client's knowledge and consent after full disclosure) and Canon 11 (reasonable fees). The modern analogs are Texas Rule 1.08 and ABA Model Rule 1.8(f) (third-party compensation) and Texas Rule 1.04 and Model Rule 1.5 (fees).

Citations and references

Rules of Professional Conduct:

• MR 1.5 (fees), as the modern analog
• MR 1.8 (current client conflicts; third-party compensation under 1.8(f)), as the modern analog
• Texas Canons 11 and 35 (former Texas Canons of Ethics)

Other references:

• ABA Informal Opinion C-733
• Drinker on Legal Ethics 62-63

See also

• TX Ethics Op. 351: Attorney Accepting a Referral Percentage of a Bond Premium
• TX Ethics Op. 374: Judgment for Legal Fees Against a Client in the Same Suit
• TX Ethics Op. 366: Attorney Holding a Financial Interest in a Bail Bond Business

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-348/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_348.pdf

Original opinion text

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

QUESTION PRESENTED

An attorney is appointed by the Court to defend an indigent in a criminal case. After the appointment it is learned that the family of the defendant can raise a certain amount of money for the payment of attorney's fees. They desire the Court-appointed attorney to continue the defense of the case since the amount of money they can raise is not sufficient to hire another attorney. Therefore, the Court will not release the Court-appointed attorney from his appointment.
Is it unethical for the attorney to allow the family of the defendant to pay a substantial fee for the defense of the case, although the same is not sufficient to compensate the attorney for his services?
If the attorney accepts payment from the family, would it be unethical for the attorney to accept a fee from the county, which is a customary fee paid by the county to Court-appointed counsel in cases of this nature?

23 Baylor L. Rev. 891 (1972)

Canon 35 prohibits a member from accepting compensation from others without the full knowledge and consent of his client after full disclosure. Therefore, if a full disclosure is made to the defendant, the defendant's family and the Court, the attorney may accept fees from the family, as well as from the county, so long as the total fee is not excessive and is not above a reasonable fee as determined by Canon 11. See ABA Informal Opinion C-733. See also Drinker on Legal Ethics 62-63.

An attorney appointed to defend an indigent defendant in a criminal case may accept partial fee from the family, as well as fee from the Court, so long as full disclosure is made.

Canon 35.

Tex. Comm. On Professional Ethics, Op. 348 (1969)