Can I volunteer as the court's 'attorney of the day' if I am paid only when the defendant pleads guilty that day?

Plain-English summary

A county criminal court created an "attorney of the day" program to move its large pro se docket. A volunteer private defense lawyer would give a defendant a limited consultation about rights and options; the lawyer was unpaid for that initial consultation. If the defendant chose to resolve the case that day by an agreed guilty plea, the judge would appoint the lawyer for that limited purpose and the county would pay the lawyer a more-than-nominal flat fee. The lawyer earned the fee only if the defendant pleaded guilty. The Committee analyzed this under the general conflict rule, Rule 1.06(b) and (c).

The Committee concluded the program ran afoul of Rule 1.06(b)(2) because the lawyer's own interest in the fee, which materialized only on a guilty plea, adversely limited advice that might or might not point toward a guilty plea. The Committee then concluded the conflict could not be cured under Rule 1.06(c): the lawyer could not reasonably believe his advice would be unaffected by a fee payable only on a same-day guilty plea, and under the program's time constraints he was unlikely to be able to give full disclosure of the conflict, obtain valid consent, and then counsel the defendant on whether to plead guilty, all in one sitting. Because both prongs of Rule 1.06(c) had to be met and neither could be, the Committee found participation in the program impermissible.

Currency note

This opinion was issued in 2000, under the Texas Disciplinary Rules of Professional Conduct that took effect January 1, 1990. Texas did not adopt the ABA's Ethics 2000 revisions; its rules have been amended only piecemeal since (including the March 1, 2005 amendment to the fee rule, Rule 1.04, and the comprehensive 2021 revisions adopted by Texas Supreme Court order). 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 Treat this page as historical context, not current guidance.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 volunteer for an 'attorney of the day' program that pays only on a guilty plea?

A: No. The Committee concluded the arrangement violated Rule 1.06(b)(2), because the lawyer's interest in a fee payable only if the defendant pleaded guilty that day adversely limited the representation.

Q: Could the defendant's written consent fix the conflict?

A: No. The Committee concluded the conflict could not be cured under Rule 1.06(c): the lawyer could not reasonably believe the fee would not affect his advice, and the program's time constraints made full disclosure, valid consent, and competent plea counseling in one sitting highly unlikely.

Q: What made the fee structure the problem?

A: The Committee identified that the fee was more than nominal and was earned only if the defendant entered a guilty plea at the conclusion of the consultation, which is what tied the lawyer's financial interest to a particular outcome.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 1.06(b)(2) and (c) (general conflict of interest, ABA Model Rule 1.7). The analysis turned on whether a fee payable to defense counsel only upon the client's same-day guilty plea adversely limited the representation by the lawyer's own interest, and on the impossibility of satisfying both prongs of the Rule 1.06(c) consent cure under the program's conditions.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest)
• Texas Disciplinary Rules 1.06(b), 1.06(c)

See also

• TX Ethics Op. 559: Appointed Counsel's Detailed Fee Statement and Client Confidentiality
• TX Ethics Op. 538: New District Attorney Prosecuting a Former Client

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-535/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_535.pdf

Original opinion text

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

QUESTION PRESENTED

Under the Texas Disciplinary Rules of Professional Conduct (the "Rules") may a lawyer volunteer to participate in a court-sponsored "attorney of the day" program for criminal defendants as described?

STATEMENT OF FACTS

A county criminal court (the "Court") has implemented an "attorney of the day" program in order to expedite the large number of pro se criminal defendant cases appearing on the docket. The "attorney of the day" is a private defense attorney who volunteers to participate in the Court's program.

The representation by the "attorney of the day" is conducted in a two phase process. In the initial phase, the criminal defendant is made aware that he may speak with the "attorney of the day", who is not appointed by the Court to represent the criminal defendant, for the limited purpose of advising the criminal defendant as to his legal rights and options. The "attorney of the day" is not paid for this initial consultation by the Court and, at this point, has only reviewed the Court's file on the case. If the criminal defendant elects to consult with the "attorney of the day", he is required to sign a statement (the "Admonishment") agreeing to the limited purpose of the representation and that the representation by the "attorney of the day" terminates at the conclusion of this consultation. The criminal defendant is also advised in the Admonishment that if he chooses to resolve his case that day by an agreed plea, the judge will appoint the "attorney of the day" to represent him for that limited purpose and the "attorney of the day" will be paid by the County.

Presuming the criminal defendant agrees to the initial consultation with the "attorney of the day", one of four things may happen: 1) the criminal defendant may choose to do nothing and "pass" his case until the next Court setting; 2) the criminal defendant may choose to seek a Court appointed lawyer based upon the client's indigency; 3) the criminal defendant may choose to proceed pro se; or 4) the criminal defendant may choose to resolve his case that day by pleading guilty.

The second phase of this program begins if the criminal defendant elects to resolve his case that day and proceed with the Court appointed "attorney of the day." The criminal defendant is advised of his rights and options and required to consent to the following:

"Request For Counsel
I am the defendant in the above-styled and numbered cause and in the interests of justice I request the Honorable Court to appoint an attorney to advise me of my rights prior to entering a plea to the charge alleged herein. I understand that the representation of the attorney who is appointed terminates today, and that he/she will not represent me further without a separate written agreement or order from the Court. I further certify that I have read and understand the [Admonishment] and I agree with its terms, and that I am not presently represented by counsel. I understand that the attorney of the day's investigation into the facts of my case will be limited by the contents of the court's file and any information that I provide him today. I certify that I: AM AM NOT (Circle one) charged with another offense and/or: AM AM NOT (Circle one) currently on probation or parole.

Defendant"

If the criminal defendant's case is then concluded on that day with a guilty plea, a flat fee that is more than nominal is paid by the County to the "attorney of the day."

If, after the criminal defendant determines to plead guilty but before the plea is accepted, a circumstance arises that unexpectedly prevents the case from being finally disposed of that day, the Court either: 1) enters an order and continues the "attorney of the day's" representation of the client until such time that the case is resolved; or, 2) pays the "attorney of the day" for the time that he spent representing the client pursuant to the appointment, and discharges the "attorney of the day" from further service according to the representation agreement. In either event, the "attorney of the day" is paid only if the criminal defendant initially elects to plead guilty.

DISCUSSION

The "attorney of the day" program involves a situation where an attorney receives a fee for limited representation only in the event the criminal defendant elects to plead guilty. Thus a lawyer faces a potential conflict between the lawyer's own interest in receiving the promised fee and the interests of the criminal defendant that may or may not be best served by a guilty plea.

The facts presented in this matter raise issues under Rule 1.06 on conflicts of interest. Rule 1.06(b) provides in pertinent part that:

"(b) . . . except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person: . . . .

(2) reasonably appears to be or become adversely limited . . . by the lawyer's or law firm's own interests."

This Rule clearly applies because of the lawyer's interest in receiving a fee which is dependant on the criminal defendant's decision to plead guilty on the day of the initial consultation with the "attorney of the day."

The only exception to the prohibition of Rule 1.06(b) is stated in Rule 1.06(c), which provides as follows:

"(c) A lawyer may represent a client in the circumstances described in (b) if:

(1) the lawyer reasonably believes the representation of each client will not be materially affected; and

(2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any."

It is the opinion of the Committee that there could never be an adequate basis for a determination that both requirements of Rule 1.06(c) are met in the case of the "attorney of the day" program. First, the lawyer who volunteers to participate in the "attorney of the day" program could not reasonably believe that his advice to the criminal defendant would not be materially affected by the promise of a more than nominal fee if, but only if, the criminal defendant decides to enter a guilty plea on the day of the consultation. Second, it would seem highly unlikely that, with the time constraints that would exist, the lawyer could on the day of the consultation provide "full disclosure" to the criminal defendant concerning the conflict of interest and its implications, obtain a valid consent from the criminal defendant and then counsel with the criminal defendant as to whether the criminal defendant should plead guilty. Since it would be highly unlikely for the lawyer to meet either of the requirements of Rule 1.06(c) and since both requirements must be met before the representation would be permissible under the Rule 1.06(c), the Committee concludes that the proposed arrangement is not permitted under Rules 1.06(b) and 1.06(c).

CONCLUSION

Under Rules 1.06(b) and 1.06(c) concerning conflicts of interest, it is not permissible for a Texas lawyer to volunteer to participate in a court-sponsored "attorney of the day" program under which the lawyer receives a flat fee for limited consultation with a criminal defendant on one day only if the criminal defendant elects to enter a plea of guilty at the conclusion of the consultation.

Tex. Comm. On Professional Ethics, Op. 535 (2000)