6.05. Representation Through Appointments [Rule 6.2]

A lawyer ordinarily has no obligation to accept any client.  However, there is a situation where a lawyer is required to accept representation – when a court appoints the lawyer to represent the client.  A lawyer is ethically required to accept the representation unless the lawyer has “good cause” for refusing the appointment.  This appointment obligation is based in the same justification as the pro bono requirement:  in return for the grant of a license, a lawyer must be willing to accept representation if a court directs it. 

Rule 6.2 does set out three situations (“good cause”) where a lawyer can seek to avoid appointment.  First, where representing the client in the appointment will result in the “violation of the Rules of Professional Conduct or other law.”[1]  For example, if the lawyer could not handle the matter competently, it would violate the ethical obligation of competence under Rule 1.1.  Second, where representation of the appointed client is “likely to result in an unreasonable financial burden on the lawyer.”[2]  Third, the lawyer can seek to avoid an appointment if “the client or the cause is so repugnant to the lawyer” that it would interfere with the lawyer’s ability to represent the client.[3]

One issue that has not been resolved is whether a court can appoint a lawyer without pay.  If the answer is yes then this would be a form of mandatory pro bono work imposed through the court system.  Some courts have held that appointing lawyers without pay is a form of “taking” property without just compensation: “when attorneys are required to donate funds out-of-pocket to subsidize a defense for an indigent defendant, the attorneys are deprived of property in the form of money.”[4] Other courts have held that the unique role of lawyers in the provision of legal services means that lawyers can be appointed to represent a client without a fee and not create constitutional concerns.

A district judge found that Prisoner Plaintiff had a colorable civil rights claim based on the conditions of his confinement.  The district court sought an attorney willing to take the case, but because of the isolated location, the judge could not find a lawyer and had no money to pay a lawyer if one was available.  Therefore, although finding that the plaintiff had a viable claim that rose to the “exceptional circumstances” that would justify appointment of a lawyer under the applicable statute, the judge said that Plaintiff had to proceed pro se.  Did the court err in its holding? [Naranjo v. Thompson, 809 F.3 793 (5^th Cir. 2015)]

Yes.  The Fifth Circuit held that once the statutory basis for counsel was met the district court had to appoint a lawyer.  The court held that the courts have an inherent authority to appoint a lawyer because the court has an obligation to ensure the proper administration of justice.  A court cannot effectively carry out its duties without appointing an advocate in these (admittedly rare) cases.  Importantly, the court then notes that as a matter of ethics upon receiving a license, lawyers agree to provide pro bono representation:

to the extent that attorneys commit to following [ethical rules] upon admission to the bar, representation of indigents under court order, without a fee, is a condition under which lawyers are licensed to practice as officers of the court.  It is not too much to expect that attorneys will accept these appointments as a matter of course, even if that burden falls most heavily on those practicing in areas where representation is hardest to find.  Lawyers … have obligations by virtue of their special status as officers of the court, including accepting a court’s request to represent the indigent.[5]  As for the fact that a lawyer is hard to find in the area, that does not alleviate the obligation to appoint counsel: “Civil rights do not thin out at the city limits.”

[1] ABA Rule 6.2(a).

[2] ABA Rule 6.2(b).

[3] ABA Rule 6.2(c).

[4] State v. Smith, 747 P.2d 816, 842 (Kan. 1987); Ex Parte Brown, 711 S.E.2d 899 (S.C. 2011).

[5] Naranjo v. Thompson, 809 F.3d 793 (5^th Cir. 2015)(internal quotations and cites omitted).