Opinion #115. Accepting Gifts From Court-Appointed Clients

Issued by the Professional Ethics Commission

Date Issued: April 25, 1991

Question Presented

Attorney A is court-appointed to represent an indigent criminal defendant pursuant to M.R. Crim. P. 44(c). The defendant proposes to make a gift to the attorney consisting of any of the following: a box of homemade cookies, a small amount of cash, or changing the oil in the attorney’s car. The gift may be made before or after the conclusion of the case. Bar Counsel inquires if the attorney may accept any of these gifts without violating Rule 3.2 (f)(4) of the Maine Code of Professional Responsibility.

Opinion

Rule 44(c) of the Maine Rules of Criminal Procedure expressly prohibits an appointed lawyer from subsequently accepting “compensation” from a source other than the court for “services or costs” of defense, absent court authorization. The Maine Supreme Judicial Court has deemed such action to constitute “conduct prejudicial to the administration of justice” in violation of Rule 3.2(f)(4). State v. Grant, 487 A.2d 627 (Me. 1985); Board of Overseers v. Rodway, 461 A.2d 1062 (Me. 1983).

We approach the issue presented in this case with some caution, insofar as this Commission recognizes its lack of jurisdiction to construe court rules or statutes. See, e.g., Opinion No. 76. However, we offer the following discussion in the spirit of observing certain ethical ramifications raised by the inquiry, rather than as any attempt definitively to construe M.R. Crim. P. 44(c).

Rule 44(c)’s closing prohibition against the acceptance of other compensation by a court‑appointed attorney “except pursuant to court order” appears principally aimed to meet two concerns. First, if funds become available to defray the court‑appointed attorney’s fee, that circumstance must be brought to the court’s attention to enable the court to protect the taxpayers’ interest in reimbursement, or substitution of private payment. Second, the Rule preserves the court’s ultimate authority to determine in the first instance what constitutes “reasonable compensation” for the attorney’s services in the case. See Criminal Rules Committee Advisory Notes, March 1, 1973; cf. Matter of Dwyer, 399 A.2d l (D.C. Ct. App. 1979), construing 18 U.S.C.A. Sec. 3006 A(f).

In light of the rule’s history and the interests it seeks to protect, this Commission is of the opinion that unsolicited gifts of nominal value, such as a box of cookies, do not constitute compensation for services or costs within the meaning of Rule 44(c), such that Rule 3.2 (f)(4) concerns are present. Similarly, the gratuitous and unsolicited performance of a personal service of nominal value, such as an oil change for the attorney’s car, is not compensation in the sense contemplated by the rule. Assuming that such gratuities are indeed unsolicited, it is immaterial whether the act occurs during the course of ongoing representation or after the underlying matter is concluded.[1]

Our view of the offering of cash, in however small an amount, necessarily differs from the above. To the extent of a cash “gift” to the lawyer by the defendant during the pendency of a case, or after its conclusion, the defendant evidences some ability to contribute financially to his/her defense or to reimburse the State for its outlay. The lawyer should reject the tender.

In any questionable instance, a ready avenue exists for court‑appointed counsel to determine if an unsolicited gift is acceptable in view of Rule 44(c). The cautious practitioner would be wise to seek court authorization whenever in doubt.


Footnote

[1] Obviously, the attorney should not solicit or bargain for “gratuitous” goods or services, of nominal value or otherwise, from an indigent Defendant. Some concern might well exist that the allowance of even unsolicited gifts of nominal value might in time have the unintended effect of encouraging a defendants’ culture wherein the indigent feels compelled to do “something extra” for his/her attorney in order to ensure zealous advocacy. While sensitive to this possibility, we regard it as sufficiently remote that it can, for the present, be discounted.


Enduring Ethics Opinion