Ethics Opinion

Opinion No. 76-28

December 1976

Summary: An attorney appointed to represent a criminal defendant found by a court to be indigent may not accept a fee from that defendant for services rendered in simultaneous or related legal proceedings without disclosure to the appointing court.

Facts: Attorney A presents two situations which raise similar problems:
(1) A is assigned to represent D, who is charged with armed robbery in the "X" District Court. Before a probable cause hearing is held, D asks A to represent him in the "Y" District Court on an unrelated armed robbery charge. D offers to pay A $1,000 for the Y case. D claims that the $1,000 will come in part from a loan from his parents and in part from his own funds.
(2) A is assigned by a judge in the X District Court to represent E, who is charged with rape. The court finds probable cause and refers the case to the grand jury. Before A submits his bill to the X District Court, E asks A to represent him in the anticipated Superior Court trial in the same matter and tenders A a check for A's fee in full.
Attorney A asks whether he has an obligation in either case to inform the X District Court of his financial arrangements, whether he can properly accept the money offered by D and E and still submit bills to the X District Court for representing them as appointed counsel, and whether he has an obligation to inquire into the source of the funds offered by D and E.

Discussion: In Opinion No. 76-17, this committee stated:
An attorney appointed to represent a criminal defendant found by the court to be indigent, who learns from his client that the client is not indigent, must promptly call upon the client to rectify the fraud by reporting it to the court. If the client refuses to do so, the lawyer must either reveal the fraud to the court, or notify the court that he or she is willing to continue to represent the client without compensation from public or restricted funds. In no event may the lawyer accept a fee from the client, as a private retainer, without the approval of the court after full disclosure.
The new issues presented here are: (1) whether the ban on private retainers without disclosure extends to fees for different but simultaneous or related services; and (2) whether the attorney has any affirmative obligation to inquire into the source of such fees.
To permit an attorney, appointed after a finding of indigency, to receive a private retainer fee in simultaneous or related proceedings would permit easy evasion of the principle of disclosure set forth in Opinion No. 76-17. It would also permit improper use of the court appointment system for an attorney's private profit, in violation of DR 2-103(D)(1). Such fees must be disclosed to the appointing court, even if the client can ultimately demonstrate that the payments were made from other sources, and that there was no fraud as to the finding of indigency.
The improper use of a public court appointment system for the private profit of an attorney, whether deliberate on the attorney's part or not, is a particularly serious matter. The attorney, by presenting his bill to the appointing court without full disclosure would play an active role in such improper use of the system. He must make full disclosure to the court of any private payments for legal services that are offered or promised to him during the period of the court appointment. Before accepting any such payments, he must first obtain court approval after such full disclosure. If this rule is made clear to the client in the first instance, problems of confidentiality will not arise.
Such full disclosure eliminates any need for an appointed attorney to cross-examine his own client as to the source of the funds used to pay additional private fees. Once disclosure is made to the appointing court, it can make its own inquiries and investigations and can decide on the propriety of the fees without any conflict of interest.

Permission to publish granted by the Board of Delegates, 1976. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.