Opinion #76. Refusal of Court Appointments in Criminal Cases
Issued by the Professional Ethics Commission
Date Issued: December 15, 1986
The Commission is advised that a crisis has developed in a rural county because of the relatively small number of attorneys who are willing to accept court appointments to defend indigent criminal respondents. The Commission has been asked:
(1) May attorneys who have an active criminal practice refuse to accept court appointments in criminal cases?
(2) May attorneys who are not actively involved in criminal practice refuse to accept court appointments in criminal cases?
(3) May attorneys retire from criminal practice and thereafter refuse to accept appointments in criminal cases?
It should be noted at the outset that the Commission has no jurisdiction to resolve some of the issues implicit in the questions which have been posed. Although the Commission can offer guidance regarding a lawyer’s ethical obligations under the Maine Bar Rules with respect to accepting appointments in criminal cases, it cannot predict the outcome of a court proceeding in which an attorney is charged with contempt of court for declining to accept an appointment to defend a criminal respondent. Moreover, whether a court can constitutionally compel an attorney to act as defense counsel in a criminal case at a level of compensation which the attorney believes to be economically unreasonable is a question of law which the Commission declines to answer.
Although the Commission is unable to answer the questions presented in terms of the legal consequences of refusing to accept a court appointment, it can address some of the ethical ramifications raised by the inquiries. Quite apart from the power of a court to impose sanctions for refusing to represent an indigent criminal defendant, an attorney has an obligation to provide public interest legal services imposed by Bar Rule 3.10, adopted in 1984. The rule states that:
3.10 Public Interest Legal Service
A lawyer engaged in active practice in the State of Maine should render unpaid public interest legal service of a type and amount reasonable in all the circumstances. For purposes of this rule, “unpaid public interest legal service” means
(1) the provision of professional services at no fee or a reduced fee to persons of limited means;
(2) participation in a program under which free legal services to the indigent are provided by individual lawyers upon referral from a central agency;
(3) the provision of professional services at no fee or a reduced fee to charitable organizations that provide services or support for the indigent; or
(4) service in activities for improving the law, the legal system, or the legal profession.
The Advisory Committee’s notes indicate that “public interest legal services” include the performance of legal services in court‑appointed cases where the attorneys’ compensation is less than he would usually charge. 467 A.2d at p. LIX. Thus it is apparent that the acceptance of court appointments in criminal cases is one of the ways in which an attorney can satisfy his generalized ethical obligations under the rule.
It should be noted, however, that even if an attorney clearly violates Rule 3.10 by refusing to perform any public interest legal services whatever, his ethical shortcomings cannot be punished through disciplinary proceedings under the Maine Bar Rules. This follows from the use of the verb “should” rather than “shall” in the first sentence of the rule. See Advisory Committee notes, p. LX. The wording was taken from Rule 6.1 of the A.B.A. Model Rules of Professional Conduct whose draftsmen rejected a mandatory statement of the rule because of doubts about its enforceability and constitutionality. Id. at p. LXII.
The questions which prompted this opinion also present an underlying issue of whether an attorney must undertake a criminal appointment in a case which he believes to be beyond his professional competence. Rule 3.6(a)(1) enjoins a lawyer not to accept a legal matter which he knows he is not competent to handle without first associating himself with competent co‑counsel.
When asked to accept a court appointment which he honestly believes is beyond his ability, an attorney should first make his misgivings know to the court. If the judge remains unmoved, the lawyer will be confronted with the conflict between his ethical obligation under the Bar Rules and the risk of judicial censure for refusing to accept the case.
It would seem unlikely that a grievance commission would discipline an attorney for undertaking a matter, even though he did so in an incompetent manner, where he was acting pursuant to a court order after disclosure of his lack of expertise. Any risk that this might occur could be minimized if the lawyer requested the judge to appoint experienced associate counsel to assist him, schooled himself appropriately in the subject matter through the use of written materials or by consulting informally with more experienced practitioners, or formally associated himself with other counsel.
The third question posed to the Commission is whether an attorney can “retire from criminal practice and refuse to take court appointments in criminal cases.” Obviously, an attorney is free to organize his law practice as he pleases. As Rule 3.10 makes clear, a lawyer can satisfy his obligation to provide free legal service in ways having nothing to do with criminal practice.
It does not follow, however, that an attorney who decides not to accept any more criminal cases automatically becomes incompetent to try them as court‑appointed counsel. Thus the relevant ethical question in this regard is whether an attorney is still competent to handle the criminal case in question at the time he is requested to accept the court appointment whether or not he is still accepting criminal cases for paying clients.
 See, e.g., State v. Gasen, 48 Ohio App.2d 191, 356 N.E.2d 505 (Hamilton Cty. Ct. of App. 1976); Easley v. State, 334 So.2d 630 (Fla. Dist. Ct. of App. 1976).
 This solution was suggested by the A.B.A. Standing Committee on Professional Ethics in Inf. Op. #1216 (1972).
 Compare Me. Bar R. 3.6(a)(1). See also Alaska Bar Ass’n op. #82.1 in which it was held that an inexperienced lawyer would nevertheless be expected to accept criminal appointments and would be required to retain associate counsel at his own expense if he could not otherwise become competent to undertake the matter.
 As pointed out above, our response is limited to the application of the Bar Rules and should not be understood as being predictive of the result which a court would reach in imposing sanctions on an attorney for refusing to accept a court appointment.