Can a court-appointed criminal defense lawyer accept additional payment from the client's family on top of the statutory fee for appointed counsel?

Plain-English summary

This was a disciplinary matter begun by a trial judge's complaint. The respondent attorney and his partner had been appointed to defend B, who was indicted for first-degree murder after an affidavit established that B could not afford counsel. The complaint alleged that, while serving as court-appointed counsel, the respondent solicited and accepted an additional $500 from B's family, paid immediately after the jury convicted B and drawn from the release of a cash bond.

The essential facts were not in dispute. The respondent and his partner each received a state warrant for $1,500, the maximum allowed by law, and each submitted a verified Defense Counsel Voucher detailing services and expenses, but neither disclosed to the trial court that they had also received compensation from B's family. The respondent contended the $500 was for services on B's misdemeanor charges and for work before the appointment, but the Committee found no action was taken on the misdemeanors (which were dismissed) and no evidence of services between B's arrest and the appointment.

The Committee tied its analysis to the statutes governing appointment and compensation of counsel (W. Va. Code § 62-3-1 and §§ 29-21-1 et seq.) and to prior authority: its own Legal Ethics Case No. 112 (April 18, 1959), which held the statutory fee to be the attorney's exclusive compensation with no right to contract for more; Henry S. Drinker's treatise Legal Ethics, noting that an appointed lawyer may accept an unsolicited fee or gift from a relative with the court's approval but may not demand a fee directly or indirectly; 7A C.J.S. Attorney and Client § 300; and Hall v. Brewster, holding that statutory fees are the exclusive compensation of counsel acting in an appointed capacity.

The Committee held that the respondent owed a duty of utmost frankness to the trial court and should have disclosed the additional compensation when he submitted his request for payment. It stated that when an accused files an affidavit of indigency, the court appoints counsel and allows a statutory fee, and counsel later learns the accused has funds or property, the lawyer must report all such facts to the court and ask to be relieved from the appointment. The Committee reprimanded the respondent for failing to inform the trial court that he had received additional funds from B's family, reminding him that the statutory fee was his exclusive compensation, and entered the decision as In Re L.E.C. (No. 15,688; March 25, 1983).

Currency note

This opinion was issued in 1983, before West Virginia replaced its Code of Professional Responsibility with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. The compensation statutes for appointed counsel have also changed over time. 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: Could court-appointed defense counsel accept an extra payment from the client's family?

A: Not without disclosure. The opinion held that the statutory fee is the appointed lawyer's exclusive compensation and that accepting additional payment from the defendant or family without disclosing it to the appointing court was improper; the attorney was reprimanded.

Q: What should the lawyer have done after receiving the family's payment?

A: The opinion stated that the lawyer owed a duty of utmost frankness to the trial court and should have disclosed the additional compensation when submitting his request for payment, and that if an appointed lawyer learns the accused has funds or property, he must report the facts to the court and ask to be relieved from the appointment.

Q: Was the appointed lawyer ever allowed to take money from a client's relatives?

A: The opinion, quoting Drinker, noted that an appointed lawyer may, with the court's approval, accept an unsolicited fee or a voluntary gift from a relative, but may not demand a fee directly or indirectly, and that any retainer from the prisoner or relatives should be returned.

Background and rules framework

The decision rested on the principle that an attorney is an officer of the court who may be required to defend an accused for the compensation the court allows, and that the statutorily allowed amount is ordinarily the lawyer's exclusive compensation in an appointed capacity. The Committee framed the lawyer's obligation as a duty of utmost frankness to the appointing court rather than citing a specific numbered Disciplinary Rule, drawing on its prior Legal Ethics Case No. 112, the Drinker treatise, C.J.S., and Hall v. Brewster, and on the West Virginia statutes governing appointment and compensation of indigent-defense counsel.

Citations and references

Statutes:

• W. Va. Code § 62-3-1 (appointment of counsel for the accused)
• W. Va. Code §§ 29-21-1, et seq. (compensation of court-appointed attorneys)

Cases:

• Hall v. Brewster, 81 N.M. 342, 467 P.2d 8, 43 A.L.R. 3d 1420 (1970), statutory fees are the exclusive compensation of counsel acting in an appointed capacity
• In Re L.E.C. (No. 15,688; March 25, 1983), the disciplinary decision entered in this matter

Other authorities cited:

• WVSB Legal Ethics Case No. 112 (Apr. 18, 1959): statutory fee is the appointed attorney's exclusive compensation; no right to contract for additional compensation
• Henry S. Drinker, Legal Ethics: an appointed lawyer may accept an unsolicited fee or gift from a relative with the court's approval, but may not demand a fee directly or indirectly
• 7A C.J.S. Attorney and Client § 300, p. 567

See also

• WVSB Ethics Op. 2003-01: Private employment of appointed counsel
• WVSB Ethics Op. 84-4: Refusing to file a final divorce decree until fees are paid
• WVSB Ethics Op. 93-02: Finance charges on delinquent fee accounts

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e7f118f53292aa300.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

L.E.I. 83-5

(March 25, 1983)

COMPENSATION OF COUNSEL APPOINTED TO DEFEND INDIGENT CLIENT

This complaint was instituted by a trial judge. The respondent attorney and his partner were appointed to defend B, who was indicted on a charge of first degree murder. The complaint alleges that the respondent, although serving as a court-appointed attorney, solicited and accepted an additional payment of $500.00 from the family of B.

A hearing was held with respect to this complaint on June 14, 1982, before Messrs. Conrad, Dickson and Kizer. The respondent appeared in person and by counsel.

The essential facts in this matter are not in dispute. B was arrested on January 6, 1979, on a charge of first degree murder. He was also charged with driving while under the influence of alcohol and driving with a suspended operator's license, both of which are misdemeanors. On January 17, 1979, the respondent and his partner were appointed by the trial court to defend B on the murder charge, after the required affidavit stating that B was pecuniarily unable to employ counsel had been filed. On April 5, 1979, after a trial, B was found guilty of murder in the first degree. The respondent admits that immediately following the jury verdict he and his partner received a check in the amount of $500.00 from B's family payable to cash. This money was obtained from a release of a $1,000.00 cash bond. The respondent contends that the $500.00 was for services rendered on the misdemeanor charges and for services rendered prior to the court appointment. However, it appears from the evidence that no action was taken on the misdemeanor charges by the magistrate and that the charges were ultimately dismissed. Nor does the evidence indicate the extent of any services rendered by the respondent or his partner during the period January 6, the date of B's arrest, and January 17, the date of their appointment to defend him on the felony charge.

It is admitted that the respondent and his partner each received a state warrant for $1,500.00 for their services in representing B in the trial court. This sum is the maximum allowed by law. The respondent and his partner each submitted to the court administrator a verified Defense Counsel Voucher setting forth the services rendered, the time spent, and the expenses incurred. The respondent's voucher listed $1,921.50 for legal services and $513.00 for expenses incurred. His partner listed $2,277.50 for his legal services and $538.20 for the expenses incurred by him. Neither the respondent nor his partner disclosed to the trial court that they had received additional compensation from B's family. Following B's conviction of first degree murder in the trial court, the respondent and his partner successfully appealed B's conviction to the Supreme Court of Appeals, for which representation they each received additional compensation from the state in the amount of $1,000.00. Upon remand, B discharged the respondent and his partner and, through his newly appointed counsel, entered a plea of guilty to manslaughter.

The appointment of the respondent as counsel for B was made pursuant to W. Va. Code § 62-3-1. The compensation of court-appointed attorneys is governed by W. Va. Code §§ 29-21-1, et seq.

In an opinion dated April 18, 1959, Legal Ethics Case No. 112, this Committee stated:

This Committee is of the opinion that the statutory fee paid to the attorney involved in this case constituted his exclusive compensation and that he had no right to contract with the defendant by way of an assignment of funds, then thought to be available for payment of attorney fees, to obtain compensation in addition to the statutory fee paid.

In his work, Legal Ethics, Henry S. Drinker states:

In many jurisdictions a statutory fee is paid by the county to the lawyer so assigned. The Chicago Committee has held that a lawyer appointed by the court may, with the court's approval, accept a fee (not suggested by him) from the relative of his clients; or a voluntary gift; but he may not demand a fee, directly or indirectly.

Where one appointed by the court to defend a supposed indigent prisoner finds, on consulting him, that he is not in fact indigent, the lawyer may not make a private employment contract for legal services with him in lieu of the fee to be paid by the county, but must require his client to advise the court of the true facts and abide by the court's redetermination as to his indigency before he can make any agreement. Any retainer paid by the prisoner or his relatives should be returned and they should be free to employ other counsel.

In 7A C.J.S. Attorney and Client § 300, p. 567, the rule is stated to be:

In general, since an attorney is an officer of the court, he may be required to defend an accused person and accept such compensation, within the limits of the statute or rule, as the court may allow, and ordinarily the amount allowed by the court must represent the exclusive compensation of the attorney, and he has no right to contract with other persons for fees.

In Hall v. Brewster, 81 N.M. 342, 467 P.2d 8, 43 A.L.R. 3d 1420 (1970), it was held that attorneys, as officers of the court, have a duty to accept appointments to represent indigents charged with crime, and the payment of statutory fees to appointed counsel should be considered the exclusive compensation of attorneys acting in an appointed capacity.

The evidence in this case indicates that the respondent had represented B and B's family for many years and that he had the court appoint him and his partner to defend B. There was also some evidence that the respondent had demanded a fee of $5,000.00 to represent B on the murder charge.

The respondent owed the duty of utmost frankness to the trial court. He should have disclosed to the court that he had received additional compensation from B's family when he submitted his request for payment. The Committee is of the opinion that if an accused presents an affidavit that he is pecuniarily unable to employ counsel, the court appoints counsel for him and allows a statutory fee for the attorney's services, and thereafter the attorney ascertains that the accused has funds or property available for payment, it is the duty of the attorney to report to the court all facts and information he has concerning the accused's funds and property and request that he be relieved from his appointment.

The respondent is hereby reprimanded by the Committee for his failure to inform the trial court that he had received additional funds from B's family. The respondent is reminded that the statutory fee paid to him constituted his exclusive compensation and he had no right to receive additional compensation from B or his family without disclosing that fact to the court which appointed him. In Re L.E.C., ___ W. Va. ___, ___ S.E.2d ___ (No. 15,688; March 25, 1983).