Ethics Opinion

Opinion No. 76-34

December 1976

Summary: An attorney appointed to represent an indigent patient at a mental health and retardation facility may, without disclosure to or approval by the appointing authority, accept a fee from that patient or from another appointing authority providing legal services to that patient for services rendered to that patient which are subsequent and unrelated to the proceedings for which the appointment was made. An attorney may not without such disclosure and approval accept simultaneous appointments from more than one publicly funded appointing agency to represent an indigent in contemporaneous matters, whether related or unrelated.

Facts: A governmental agency providing publicly funded legal services of private attorneys for indigent patients of mental health and retardation facilities asks whether attorneys representing indigent patients under its program may, without disclosure to and approval of the appointing authority (1) receive fees and fee-producing cases of the patient which are neither simultaneous with nor related to the work for which the appointment was made, or (2) do work for which other sources of publicly funded compensation exist. The agency asks whether the attorney should limit himself or herself to the work being done under its auspices and funding.
Discussion: In Opinion No. 76-17 and Opinion No. 76-28, this committee discussed the duty of an attorney appointed to represent an indigent who determines that the client is in fact not indigent. This committee believes that the same rule applies with respect to a purported indigent who is mentally retarded, and that the same duty of disclosure to the appointing authority is required.
As to the provision by an appointed attorney of simultaneous or related services to an indigent, the committee feels that Opinion No. 76-28 is relevant to indigent handicapped patients as well as to indigent criminal defendants.
The new question presented here is whether an attorney can, in an unrelated subsequent matter, represent an indigent whom he has represented as appointed counsel, without disclosure to the appointing authority. A second new issue presented is whether such an appointed attorney may, without disclosure to and approval of the appointing authorities, accept an appointment from a second appointing authority to represent the same indigent.
Opinion No. 76-28 sets forth the reasons for which an attorney appointed to represent an indigent may not receive a private retainer fee in simultaneous or related proceedings without disclosure to the appointing authority. The same considerations do not apply with respect to representation which is subsequent and unrelated to the proceedings for which the attorney was appointed. In proceedings which are neither simultaneous nor related there is no suggestion of the attorney receiving benefits both from the public funds and the private fee, other than the benefit of having obtained the patient's trust as attorney. The committee does not feel that this is an improper use of the appointment system for an attorney's private profit and, on the contrary, may be a necessary service to persons whose institutionalization and handicaps might limit access to legal services.
With respect to appointments by a second publicly funded appointing authority, the permission granted by DR 2-103(D)(1) does not limit the appointed attorney to one appointment by one appointing authority. Since there are many cases in which it would be a clear advantage to a second appointing authority to appoint an attorney already familiar with the indigent, the committee does not feel that it would be inappropriate for the attorney to accept the second appointment. However, as it is likely that compensation structures of various appointing agencies may differ in, for example, either allowance or disallowance of travel time or hourly rates of compensation, obvious problems arise when an attorney travels for the purpose of discussing with his client the business of both appointing authorities. As this problem raises the basic issue addressed in Opinion No. 76-28 of the potential for improper use of the publicly funded appointment system, this committee is of the opinion that full disclosure and approval of both appointing authorities is required before an attorney appointed by one authority may accept an appointment by a second authority.

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.