Ethics Opinion 1969-9

December 1969

SUBJECT: REPRESENTATION OF INDIGENTS

I
QUESTION PRESENTED

It is suggested that many attorneys take appointments with the purpose of trying to work out private arrangements with the client.

Does the attorney have the right to make private fee arrangements with the client:

(a) If he gets approval from the Court in advance;

(b) If he advises the Court that he is not going to take a fee from the County and has already made private arrangements;

(c) If the client states that he wants to hire the attorney on a private basis but cannot pay a fee until after the case is over.

II
SUMMARY

It is the opinion of the committee that an attorney does have the right to make a private fee arrangement with a client, if he requires his client to advise the court of the true facts concerning the client's ability to pay beforehand. Upon the court's redetermination as to his client's indigency with a finding that the client is not, in fact, indigent, the attorney may then make an agreement provided that the client is informed that he has a right to retain anyone of his own choice. An attorney should not make a private fee arrangement with an indigent client prior to notifying the court.

Should the unusual situation arise where the client states he wants to hire the appointed attorney on a private basis, but cannot pay a fee until after the case is over, it is the opinion of the committee that an attorney should not allow the creation of such a situation. The only possible incentive for a client to make such a commitment is to guarantee in his own mind that he will receive proper representation. It would appear in such a situation that perhaps the client has in fact been told that a better job will be done if the attorney were retained. This, of course, would be contrary to the canons of ethics.

III
CANONS AND OPINIONS

Canon 4 of the Canons of Professional Ethics provides that:

"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."

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 due process of law."

It has been held that a lawyer appointed by the Court may, with 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; Ethics Opinion of the Committee on Legal Ethics of the Los Angeles County Bar Association, 1968 Edition, Opinion No. 245.

Drinker in his work on the subject, at Pages 62 and 63 stated that:

"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 indigncy 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.

IV
ANALYSIS

An attorney who undertakes representation of an indigent prisoner is bound by the above quoted canons. It is improper to accept appointment and then to indicate to the indigent that he should make a private arrangement to employ him. There is a practice in many jurisdictions to advise indigents that a paid lawyer can do a better job. Such representation is improper. While, as a practical matter, 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.

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. 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:

1. The attorney should in every case make a determination as to whether or not the client is in fact indigent.

2. Upon making a determination of a financial ability to retain an attorney and without attempting to enter into a private employment contract with the client, the attorney should bring the client before the Court and inform the Court of the client's ability to pay.

3. The client should be informed that he has a right to retain anyone of his own choice.

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

EDITOR'S NOTE: The Committee reviewed this opinion on October 28, 1976 and found that it is consistent with current law. The Canons cited in the opinion are those of the old Canons of Professional Ethics. The subject of indigent clients is now covered by Canon 2 of the A.B.A. Code of Professional Responsibility. Also see A.B.A. Informal Opinion No. C-733.

 

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.