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Ohio Legal Ethics Narrative
VI. PUBLIC SERVICE
Ohio Rule 6.2 is substantively identical to the Model Rule, except that "court" is substituted for "tribunal" in the introductory language and MR 6.2(c) is deleted.
The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 6.2: EC 2-25, 2-26, 2-27, 2-28, 2-29, 2-30, 2-31 & 2-32.
- Primary Ohio References: Ohio Rule 6.2
- Background References: ABA Model Rule 6.2
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 2.179; Guttenberg & Snyder, The Law of Professional Responsibility in Ohio § 3.3(A)
- Commentary: ABA/BNA § 91:6201, ALI-LGL § 14
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 2.179 (1996).
An individual's right to a lawyer in certain types of cases can be compromised if the individual is unable to afford legal services or if the individual or the cause is too unpopular. To fill this gap, courts have the authority to appoint lawyers to undertake such representation. State ex rel. Butler v. Demis, 66 Ohio St.2d 1213, 420 N.E.2d 116 (1981).
Two principal issues arise in this context. The first, addressed in Ohio Rule 6.2, concerns the ethical limits on when a lawyer may permissibly refuse such an appointment. The second is the extent to which a court may force a lawyer to take such an appointment.
Ethically permissible grounds for avoiding appointment: As a general matter, a lawyer "cannot seek to avoid appointment by a tribunal." Ohio Rule 6.2. It is the professional duty of every lawyer to agree to court appointments in the usual case. Nevertheless, the Rule recognizes that instances may arise in which "good cause" exists to decline such an appointment; where that is the case, it is not unethical to do so. Rule 6.2 identifies two such instances in which good cause would lie – (a) where the representation is likely to result in a violation of the Ohio Rules or other law and (b) where it is likely to result in an unreasonable financial burden on the lawyer. While the Rule identifies only these two instances, the language of the Rule (it allows an exception from the general duty "for good cause, such as either of the following" (emphasis added)) — suggests that other grounds for good cause might also arise. Id.
One limitation, applicable to both provisions, is that good cause is met only where representing the client is "likely" to cause the violation of the Ohio Rules or other law, or to pose an unreasonable financial burden. How "likely" it has to be is an open question.
The first exception covers a lot of ground. If representation is likely to violate any of the Ohio Rules of Professional Conduct, or any other law, that ends the matter. Common problems that might arise include questions of competence or conflict of interest. Ohio Rule 6.2 cmt. . One exception recognized in the Model Rule, but not in the text of the Ohio Rule itself, finds good cause where "the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client." MR 6.2(c). Nevertheless, as Comment  makes clear, such a situation still constitutes good cause, because in that circumstance either the competence or conflict-of-interest provisions would come into play. Ohio Rule 6.2 cmt.  ("so repugnant . . . as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client"). If the representation is repugnant, but not so repugnant that the representation will be compromised, good cause does not lie. Ohio Rule 6.2 cmt. .
As to the second exception, the text of the Rule speaks of "an unreasonable financial burden." Ohio Rule 6.2(b). It is silent, however, on the degree of burden that can be imposed before it becomes "unreasonable." Some guidance is provided by the comment, which, in illustrating this exception, speaks of "a financial sacrifice so great as to be unjust." Ohio Rule 6.2 cmt. . It should also be noted that while the Rule itself speaks to financial burden, the comment intimates a broader category -- burden generally: "A lawyer may also seek to decline an appointment if acceptance would be unreasonably burdensome, for example, when it would impose a financial sacrifice so great as to be unjust." Id. (emphasis added). This could be read as suggesting that the financial aspect is but one example of a burden meeting the "good cause" standard.
Judicial power to force attorneys to accept appointment: Guttenberg and Snyder comment on the disagreement among courts and commentators as to the right to refuse court appointments in civil and criminal cases, but they cite no Ohio authority or commentary. There is one Ohio decision, however, that can fairly be viewed as dealing with the issue and that is State v. Gasen, 48 Ohio App.2d 191, 356 N.E.2d 505 (Hamilton 1976). In Gasen, the public defenders who were representing defendants on a felony charge were not in the courtroom when the case was called for preliminary hearing. Two other public defenders had the misfortune of entering the courtroom at that time and each was summarily appointed by the court to represent one of the two defendants and ordered immediately to commence cross-examination, even though they had no knowledge of the defendants or their case. The appellate opinion expressly states that "Gasen declined to accept the appointment," id. at 192, 356 N.E.2d at 506, and the other appellant (Rosenwald) in effect did so as well, on the ground that to accept without any knowledge whatever of the case would violate their obligations under the former OHCPR and deny the defendants effective representation of counsel. "Upon their continued refusal to represent the Stovalls, both Gasen and Rosenwald were incarcerated pending a hearing on a charge of contempt for refusal to obey the court's order." Id. at 192-93, 356 N.E.2d at 506-07. At the hearing, appellants were found in contempt; on appeal, the court reversed and held the contempt order contrary to law because it refused to recognize counsels' duties under the OHCPR:
Clearly, the ethics of the legal profession demand that any attorney, private or public, decline to represent a party when such attorney is unable, for valid reasons, to fully and adequately prepare such party's case, or when such a party is already represented by competent counsel. Failure of an attorney to decline to perform such representation may result in disciplinary measures being taken against him.
Id. at 193-94, 356 N.E.2d at 507 (emphasis by the court).
Beyond Ohio, by far the most significant case on this issue is that of the United States Supreme Court in Mallard v. United States District Court, 490 U.S. 296 (1989). Although decided on narrow statutory grounds, the Court spoke in dictum to the larger issue as well. In Mallard, an attorney newly admitted to practice before the district court and having expertise in bankruptcy and securities law, was appointed to represent one former and two current federal-prison inmates who alleged that prison officials had violated 42 USC § 1983 by, inter alia, filing false disciplinary reports against them. Mallard moved to withdraw as counsel, citing his lack of familiarity with and experience in the matters presented and of the skills required by the case. In appealing the magistrate's denial of his motion, Mallard emphasized to the district court that he was "not a litigator by training or temperment," 490 U.S. at 300, and thus could not be effective in litigating the case at hand. Nevertheless, the trial court concluded that he was competent and that 28 USC § 1915(d) empowered the federal court to compel a lawyer to accept appointments to represent indigents in civil actions. After the Eighth Circuit denied without opinion Mallard's writ of mandamus to compel the district court to permit him to withdraw, the Supreme Court granted certiorari and reversed.
On the dispositive statutory issue, the Court held 5-4 that the operative word in § 1915(d) -- "request" -- was precatory, not mandatory, and thus § 1915(d) does not "authorize a federal court to require an unwilling attorney to represent an indigent litigant in a civil case." 490 U.S. at 298. In part IV of the majority opinion, Justice Brennan went on to speak to the broader ethical issue in the following words:
We do not mean to question, let alone denigrate, lawyers' ethical obligation to assist those who are too poor to afford counsel, or to suggest that requests made pursuant to § 1915(d) may be lightly declined because they give rise to no ethical claim. On the contrary, in a time when the need for legal services among the poor is growing and public funding for such services has not kept pace, lawyers' ethical obligation to volunteer their time and skills pro bono publico is manifest.
Id. at 310. The Court expressed no opinion whether federal courts possess inherent authority to require lawyers to serve, id., or whether statutes like 18 USC § 3005, providing for "assignment" of counsel in capital cases, authorize the courts "to compel an unwilling attorney to render service. Nor do we offer an opinion on the constitutionality of compulsory assignments." Id. at 306 n.6.
Commentary on the debate with respect to compulsory appointment is extensive. Laws. Man. on Prof. Conduct (ABA/BNA) §§ 91:6202-11 (2002) both reviews the case law and provides a good source of the commentary available pro and con.