C-210

July 1972

SYLLABUS

There are circumstances under which a lawyer appointed by a court to act as defense counsel may be justified in requesting to be relieved from such appointment. Grounds for requesting such relief include an honest belief by the lawyer that because of lack of training and experience the lawyer would not be able to furnish competent representation for the indigent, also in instances where the lawyer holds such strong personal feelings or prejudices concerning the nature of the crime or offense involved which the lawyer knows the lawyer would not be able to successfully subvert and keep from influencing the conduct of the case to the end that the indigent could not receive truly adequate representation.

In such instances, while the lawyer should not have the right to unilaterally reject the court appointment, the lawyer is bound to disclose disqualifying circumstances to the appointing court in the nature of an application to be relieved from the representation.

If the reasons advanced for relief from such appointment have apparent reasonable foundation the court should rescind the appointment and appoint substitute counsel qualified and willing to undertake the representation; declination by the court to do so could constitute an abuse of judicial discretion.

References: MCPR Canons 2, 6; MCPR DR 6-101(A)(1).

TEXT

A lawyer asks under what circumstances a lawyer may ask to be removed from a court appointment.

MCPR Canon 2 provides that "a lawyer should assist the legal profession in fulfilling its duty to make legal counsel available." In addition to the Canons and Disciplinary Rules of the new code, the ABA Model Code of Professional Responsibility, from which the Michigan Code is drawn, incorporated certain statements of principles denominated as "Ethical Considerations." Although the Ethical Considerations were not included in the Code as adopted by the Michigan Supreme Court, they are of sufficient significance and general validity as to assist in considering the question here under consideration.

ABA Model Code of Professional Responsibility Ethical Considerations EC 2-29 and EC 2-30 state:

EC 2-29: "When a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, he should not seek to be excused from undertaking the representation except for compelling reasons. 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 . . . ."

EC 2-30: "Employment should not be accepted by a lawyer when he is unable to render competent service . . . Likewise, a lawyer should decline employment if the intensity of his personal feeling, as distinguished from a community attitude may impair his effective representation of prospective client . . . ."

MCPR Canon 6 provides that "a lawyer should represent a client competently." MCPR DR 6-101(A)(1) provides that a lawyer shall not handle a legal matter which the lawyer knows or should know he is not competent to handle, without associating with another lawyer who is competent to handle it.

ABA Ethical Consideration 6-3 provides that a lawyer generally should not accept employment in any area of the law in which the lawyer is not qualified, also that when a lawyer is offered employment in a matter in which the lawyer is not and does not expect to become so qualified, the lawyer should either decline the employment or accept the employment and associate a lawyer who is competent in the matter. We note that associating with another lawyer is not an available solution under a court assigned appointment.

When a citizen is faced with the need for a lawyer, the citizen wants, and is entitled to, the best informed counsel obtainable. Justice Black writing for the majority court in In Re Hoffman, 382 Mich 66 at 81 (***), commented upon California's procedure which exacts from appointed appellate counsel a request for permission to withdraw and "a brief referring to anything in the records that might arguable support the appeal," and then observed:

"As against that rule and for the nonce we prefer our eminently superior practice; that of appointing for an indigent appellant willing or disposed counsel as done by Judge Smith. It provides for such an appellant a lawyer more likely to serve better than would the lawyer forced against his will to act for a cause he knows, and the trial judge knows, is frivolous."

per se reversed the civil contempt conviction of a court appointed lawyer for an indigent defendant who after a conscientious examination, determined the defendant's case for appeal to be wholly frivolous, so advised the court and declined to proceed with an appeal. The lawyer's failure to petition the court for release from the order of appointment appears to have been immunized from contempt sanctions because the court did appoint a substitute counsel who was able and willing to undertake the representation. However, the valid inference of the case is that the appointing court better serves the indigent defendant by substituting willing counsel in place of an original appointee who conscientiously believes he or she cannot, in good faith, undertake or continue the representation.

There are circumstances under which a lawyer may be well justified in believing that it would not be possible conscientiously to act or to continue to act for an indigent whom the lawyer has been appointed to represent. A particularly valid reason is an honest belief that because of lack of training and experience the lawyer is just not able to furnish competent representation. There also may be instances where a lawyer holds such strong personal feeling or prejudices concerning the nature of the crime or offense involved that no matter how hard the lawyer may try, the lawyer will not be able to successfully subvert and keep the same from influencing the conduct of the case, to the end that the indigent cannot receive truly adequate representation.

Although under such circumstances, while the lawyer should not have the right to unilaterally reject the court appointment, we agree the lawyer is duty bound to disclose such circumstances to the appointing court in the nature of an application to be relieved from the representation. Correspondingly, we further hold that if the reasons advanced for relief from such appointment have apparent reasonable foundation, the court should grant the request for rescission of the appointment and, in the protection of the best interest of the indigent, appoint substitute counsel qualified and willing to undertake the representation and we firmly believe that for a court to decline to do so would constitute an abuse of judicial discretion.