Ethics Opinion 1968-4

December 10, 1968

SUBJECT: DUTY TO REPRESENT INDIGENT

I
QUESTION PRESENTED

Attorney was appointed to represent Defendant on a felony charge. Attorney advised Defendant and Defendant's Commanding Officer that a paid lawyer would do a better job and mentioned one of his associates and a cost of $750 to $1,000. Is such conduct proper?

II
SUMMARY

As a practical matter, an attorney can properly represent an indigent and still uphold his duty to the court to determine true indigency by adhering to the following steps with respect to any employment contract between attorney and indigent. The attorney should in every case inform the court that such client is not in fact indigent, and that client wishes to retain an attorney. Attorney should also inform the client that if he is, in fact, not insolvent, he will be guilty of a fraud upon the court and subject to prosecution and that you, as attorney, cannot partake in a fraud upon the court. An attorney who discovers that a proposed indigent may be capable of financing his own defense and does not advise said client of his right to employ other than appointed counsel may be guilty of a violation of Rule 2 of the Rules of Professional Conduct and Section 6152 of the California Business and Professions Code.

III
STATUTES AND CANONS

A. Representation of a defendant in a criminal case.

Canon 4 of the Canons of Professional Ethics provides that:

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

Canon 5 provides that:

". . . having undertaken such defense, the lawyer is bound by all fair and honorable means, to present every defense that the law of the land permits, to the end that no person may be deprived of life or liberty, but by the due process of law."

B. Private employment contracts with indigents or relatives of indigents.

Private employment contracts with either the indigent or relatives of the indigent are improper unless sanctioned by the court and only after full disclosure is made to the indigent that he is free to employ any attorney of his own choice.

"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 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 be free to employ other counsel. (Drinker, Pages 62-63)

C. Solicitation

Rule 2 of the Rules of Professional Conduct provides:

"Solicitation of employment; professional cards; listings; announcements; notices; service members. Section a. A member of the State Bar shall not solicit professional employment by advertisement or otherwise."

The California Business and Professions Code, Section 6152, also speaks on the subject:

"It is unlawful for any person, in his individual capacity or in his capacity as a public or private employee, or for any firm, corporation, partnership or association to act as a runner or capper for any attorneys or to solicit any business for attorneys in or about the State Prisons, county jails, city jails, city prisons, or other places of detention of persons, city receiving hospitals, city and county receiving hospitals, county hospitals, police courts, justice courts, municipal courts, superior courts, or in any public institution or in any public place or upon any public street or highway or in and about private hospitals, sanitariums or in and about any private institution or upon private property of any character whatsoever."

IV
ANALYSIS

The above stated question involves three areas of professional ethics:

1. Representation of a defendant in a criminal case;

2. Private employment contracts with indigents or relatives of indigents;

3. Solicitation.

An attorney who undertakes representation of an indigent prisoner is bound by the above quoted canons. It is improper to accept appointment in such capacity and then indicate to the indigent that the attorney lacks experience or knowledge to properly represent him. There is a practice in many jurisdictions to advise an indigent that a paid lawyer can do a better job. Such representation is improper. While a paid lawyer might have more incentive to do a better job, an attorney once appointed to represent an indigent is bound to do the best possible job. Canon 4, Canons of Professional Ethics.

The view in many jurisdictions is strict. It has been held that a lawyer appointed by the court may, with the court's approval, accept a fee (not suggested by him) from the relatives of his client; or a voluntary gift; but he may not demand a fee directly or indirectly. Drinker, page 62.

The facts present another problem, that of solicitation. Attorney has represented to indigent that his associate could do a better job for a fee. Such representation constitutes solicitation even assuming that indigent was advised that he was free to employ an attorney of his own choice. There is no showing, however, in this case of such advice.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.

 

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.