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OBA Ethics Counsel

Ethics Opinion No. 256

Adopted August 21, 1969

INQUIRY

Is it ethical for members of the bar to refuse to accept appointments by the court as counsel for indigents accused in criminal matters, in counties where there is no public defender?

OPINION

Attorney A is president of his local county bar association and has requested an opinion from the Ethics Committee regarding the representation of indigents accused of crimes.

In his county, there are no public defender programs or other legal aid agencies available to assist indigents accused of crimes. The customary practice has been for local judges to select attorneys at random on a case to case basis. Attorney A advises the committee that several attorneys always decline such representation for the reason that their practice is limited to civil matters only, not criminal.

The inquiry presented involves the application of Canon 4 of the Canons of Professional Ethics and the duties of attorney and counsellor [sic] as set forth in 5 O.S.1961 Sec. 3. Canon 4 provides as follows:

"A lawyer assigned as counsel for an indigent prisoner ought not to ask to be excused for any trivial reason, and should always exert his best efforts in his behalf."

5 O.S.1961 Section 3 provides in part:

"It is the duty of an attorney and counselor:--Seventh. Never to reject for any consideration personal to himself the cause of the defenseless or the oppressed."

The inquiry also involves the application of Canon 31 which provides in part:

"No lawyer is obliged to act either as adviser or advocate for every person who may wish to become his client. He has the right to decline employment. Every lawyer upon his own responsibility must decide what employment he will accept as counsel, ..."

The inquiry involves a problem which is not new to the profession, but has been with every lawyer at some time in his career. How much time do I allot to charity work? In the past the lawyer had to weigh and balance his duty to the public and his duty to his clients through a solely subjective determination. At the very crux of the problem has the lack of any clear cut definition of the phrase "to ask to be excused for any trivial reason," which is contained in Canon 4. None of the opinions interpreting this canon have dealt specifically with the exact meaning of this phrase. Therefore, we must look to other sources for its meaning.

From the earliest times, lawyers have always regarded the acceptance and performance of service to indigent accused as one of the obligations incident to their professional status and privileges.

Judicial opinions have cast a clear duty on the profession in this area. Prior to the decision in Gideon v. Wainwright, a defendant was not entitled to counsel in felony criminal cases. However, with the decision in that case, one accused of a felony is entitled to counsel as a matter of constitutional right. Thus the profession must respond to a new and awesome challenge. Since this is only a recent development it is anticipated that formulation of a lawyer's actual duties is yet to come. However, it is universally agreed throughout the profession that the basic responsibility for providing legal services to the indigent ultimately rests upon the individual practitioner. Every lawyer regardless of professional pressures or his own self-regard or dedication to his "paying" clients should find time to assist in the representation of the indigent. Such responsibility devolving upon every lawyer is found in the quoted portion of 5 O.S.1961 § 3. It seems apparent to us that such a duty must be of sufficient concern for protection that the Legislature enacted a specific mandate to the Bar to preserve it.

As stated above, the definition of a trivial reason has not been adequately treated except in other sources.

The report of the ABA Special Study Committee referred to below does list certain factors which are not compelling reasons for excusal from representation of the indigent. One of these is "repugnance of the subject of the proceeding."

The responsibility of the lawyer has been termed "peculiar" in the just administration of the law. Included in this peculiar responsibility is providing advice and representation for needy persons. The Bar has and should continue to perform these services with zeal and devotion.

See Drinker, H. S. Legal Ethics New York Columbia University Press 1953, 62; Powell v. Alabama 287 U.S. 45 (1932), Johnson v. Zerbst 304 U.S. 458 (1938); 372 U.S. 335; Preliminary draft, Report of ABA Special Committee on Evaluation of Ethical Standards Jan. 15, 1969; Report of ABA, supra p. 18; Report of Atty. Gen.'s Committee on Poverty and the Administration of Criminal Justice 41_43 (1963).

Of course there are several means that attorneys can employ to attain these ends; larger counties in this state have provided full time attorneys to provide such service. Other jurisdictions have required all attorneys who are licensed to practice before its tribunals to place their names on a roll or roster which is maintained by the clerk of court. These attorneys rotate the responsibilities among themselves. However, the problem is particularly difficult of solution in the smaller counties which may be unable to afford such elaborate vehicles for the defense of the indigent. It is in these counties that the individual lawyer should be more aware of his responsibility under the Canons and Title 5 O.S.1961, Sec. 3. It is in this situation that the burden of defending the indigent accused always seems to fall on a few members of the bar. When this occurs it is our opinion that the many have neglected their responsibility under the Canons and statute besides being discourteous to their fellow lawyers and the Bar Association itself by not assisting in the bar's responsibility to the public.

It would therefore seem to us that it is unethical for lawyers to refuse to represent indigents in your county for the reason that they do not handle criminal cases. Our reason is based upon the fact that in light of the circumstances present in your county with respect to the lack of any system or procedure insuring counsel for indigent, the basis of the refusal to represent mentioned above would be trivial. In the situation confronting us herein we don't find anything which permits a lawyer to lessen or refuse a responsibility which he acquires by virtue of the privilege of being a lawyer on the basis of a desire to limit his practice to civil matters. On the other hand we find that an obligation to represent the defenseless or indigent is inherent in our calling as attorneys and we cannot shirk it.

By this opinion this Committee does not mean that an attorney about to be appointed or who has been appointed by a court to represent an indigent in a criminal matter may not protest to the court on any ground he so desires including his feeling of inadequacy to handle the case in question; in fact it would even be the duty of the attorney to inform the court if he sincerely feels that he cannot properly represent the defendant. However, after the court has determined by its own independent judgment that the attorney is qualified and competent to represent the indigent, then any refusal by the attorney to accept the appointment and thereafter represent the person designated by the court, would constitute unethical conduct.