OPINION 477
June 1991

Facts

Attorney A is a licensed Texas attorney residing in Big Oil County. Although he has maintained his law license in active status, he is not presently engaged in the practice of law, being employed as a loan officer for a local bank. As a condition of his employment, Attorney A executed a standard conflicts of interest policy which prohibits him from accepting employment outside of his duties with the bank. In the 10 years that he has been a licensed Texas attorney, he has never handled a criminal matter.

Attorney A is not a member of the local bar association ("association"). He received notice from the Association that his name had been placed on the list of attorneys to receive court appointments under a mandatory program of providing legal representation for indigent persons in criminal cases. The program, referred to as "the plan" is administered by the Association and provides that "all attorneys licensed to practice law who reside in Big Oil County, Texas are required to defend indigent persons in criminal cases."

Five categories of exemptions are set out under the plan. The exemptions are as follows:

  1. Attorneys who are over the age of fifty years as of October 1 of each year.
  2. Attorneys who have paid $400 for each year exemption is sought; a year is from October 1 through September 30.
  3. Attorneys who are exempt by law.
  4. Attorneys who are not required to pay the Texas Occupational Tax.
  5. Attorneys who establish that appointment would be hardship.

Questions Presented

1.  Would Attorney A be subject to disciplinary sanctions for refusing to accept the criminal appointment on competency grounds?

2.  Does the Association have a duty to be fair to all attorneys by providing an exemption on competency grounds, or is it sufficient that attorneys in the county may be exempted from the plan by paying a nominal fee?

Discussion/Conclusion

The Professional Ethics Committee does not have the power or authority to tell either a bar association or a court how to handle criminal appointments, as that is a question of law. Similarly, whether or not a bar association has the authority to assess a fee in lieu of accepting criminal appointments is also a question outside the scope of the committee's authority.

The Texas Rules of Professional Conduct define proper conduct for purposes of professional discipline. (Supreme Court of Texas, State Bar Rules, Art. X, Section 9, Texas Disciplinary Rules of Professional Conduct, Preamble, Section 10 (1989).) Those rules, however, (1) do not prescribe either disciplinary procedures or the penalties for their violation, (2) do not define standards of civil liability of lawyers for professional conduct, and (3) do not augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty. (Id. Preamble, Sections 14 and 15.)

The committee notes that the rules do provide that a "lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause ..." (Id., Rule 6.01 (1990).) Comment 1 to Rule 6.01 states: "For good cause a lawyer may seek to decline appointment to represent a person who cannot afford to retain counsel or whose cause is unpopular." Good cause exists if the lawyer cannot handle the matter competently. (See, Id., Rule 1.01.)

The committee further notes that the rules also provide that a lawyer may refuse to comply with an obligation imposed by law (including regulations of the practice of law) upon a good faith belief, openly asserted, that no valid obligation exists (Id., Rule 8.04, Comment 6.)