Chapter Accepting Appointments

• Jurisdiction: Washington

ii. RPC 6.2: aCCepting appointMents

RPC 6.2 provides that a lawyer "shall not seek to avoid appointment by a tribunal to represent a person except for good cause" and gives three examples of "good cause": (a) such an appointment is likely to result in a violation of the RPC, (b) it is likely to result in an "unreasonable financial burden on the lawyer," or (c) the client or cause is "so repugnant ... as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client." RPC 6.2 was adopted verbatim in 1985 from the ABA model rules, and neither rule has changed since. There was no disciplinary rule comparable to RPC 6.2 in the prior code. EC 2-29 did address the same topic and stated that lawyers should not seek to avoid court appointments except for "compelling reasons." Specifically, EC 2-29 stated that "compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case." There is no comparable provision in the Restatement.²² In adopting the ABA comments in 2006, Washington made only one small change by deleting two sentences that cross-referenced the responsibilities laid out in RPC 6.1.²³

A variety of court rules and statutes, references to which are included in the list of primary materials at the beginning of this chapter, empower courts to appoint lawyers to provide legal services to indigent persons. To understand the implications of these rules and statutes, one needs to distinguish between cases in which an indigent person has a constitutional or statutory right to assistance of counsel and those in which there is no such right. In criminal prosecutions in which incarceration is possible, and in a first appeal from a conviction, the accused has a right to assistance of counsel under the federal constitution.²⁴ So the court not only has the right but the obligation to make such appointments for an indigent accused. In Washington, a right to counsel has also been accorded in civil cases when incarceration is possible, when a parent may be deprived of parental rights, and when juvenile detention is at issue.²⁵ But there has been no judicial determination that there is a right to counsel in most civil cases.²⁶

Although it has not always been so, today when an indigent person has a right to appointment of counsel, there is generally legislative authority for payment of the lawyer appointed.²⁷ Even when courts can order compensation from public sources for such appointed representation, few would argue that the funds available to pay court appointed lawyers compare to market rates. Accordingly, lawyers who are appointed must provide the services at deeply discounted rates. In addition, lawyers sometimes find themselves appointed to provide services in an area of the law with which they have little or no experience. The situation is even more dramatic in most civil cases, for which there is no such statutory funding for appointment of counsel. When there is no funding provided at all, appointed lawyers are asked to serve "pro bono."

As explored in the Section I, above, many lawyers accept these appointments and provide many hours of free or deeply discounted legal services to the indigent. Not surprisingly, however, some lawyers seek to avoid such appointments. They argue, for example, that such court appointments are unconstitutional in that they violate the takings clause of the Fifth Amendment or the prohibition of involuntary servitude or the First Amendment or the Equal Protection Clause.²⁸ The arguments have met with only very limited success.

Here in Washington, the issue seems first to have been raised in 1892, when two lawyers (Presby and Spaulding) were appointed to represent a criminal defendant and no provision was made for their compensation.²⁹ They argued that if they were not paid, it would constitute a "taking of the time and labor-in other words, the property-of counsel without compensation, and without due process of law, all of which is in violation of the fundamental law of the state."³⁰ The court, following the "majority rule," rejected their claim. Relying on cases from Pennsylvania, California, and Michigan, the court wrote:

In some instances, no doubt, it is a hardship upon an attorney to be obliged to defend poor persons, without compensation, but, when called upon, it is a duty which he owes to his profession, to the court engaged in the trial, and to the cause of humanity and justice, not to withhold his assistance, nor spare his best exertions, in the defense of one who has the double misfortune to be stricken by poverty and accused of crime. One of the duties of attorneys enjoined by law in this state is "never to neglect, from any consideration personal to himself, the cause of the defenseless or oppressed" [now part of the oath of an attorney]. An attorney is an officer of the court, and he takes his office with all its burdens, as well as all its rights and privileges; and among the burdens thus assumed is that of being obliged, when requested by the court, to conduct, without compen[s]ation, the defense of those who are destitute of means, and are accused of crime.³¹

The status of the Presby case in Washington is, however, unclear. After Presby was decided, the legislature instituted a mechanism for compensating attorneys appointed to defend indigent criminal defendants and to handle their appeals.³² But in 1970, the court had occasion in Honore v. Washington State Board of Prison Terms & Paroles to consider whether lawyers appointed to represent convicted persons appealing the denial of a habeas petition were entitled to compensation even though none had been provided for by the legislature.³³ The issue was problematic because habeas petitions are civil, not criminal, proceedings. The legislature had authorized payment of counsel fees for indigent criminal defendants, both at the trial level and on direct appeal; and the existing statute was broad enough to warrant fees for the filing of a habeas petition, but not for appeal. The court ruled that indigent persons have an equal protection right to have counsel appointed to handle a nonfrivolous habeas petition and/ or an appeal from a denial of such a petition. It then went on to hold that counsel appointed for habeas appeals have a right to compensation, regardless of whether compensation has been authorized by the legislature:

We are acutely aware ... that, under prevailing concepts in he [sic] field of the administration of criminal justice, the ever increasing requirements for legal representation [sic] of indigents on appeal in the field of criminal law, in the postconviction area, in the juvenile delinquency arena, and in related civil commitment situations are rapidly imposing an extremely heavy and time consuming burden upon the legal profession. This being so, it follows that to require an attorney to process an...