Concept
The Duty to Accept Appointments
Accepting appointments
Accepting Court Appointments
The Duty to Accept Appointments
Rule 6.2 of the Model Rules of Professional Conduct sets a default and an exception: a lawyer “shall not seek to avoid appointment by a tribunal to represent a person except for good cause.”1 The default is that a lawyer whom a tribunal appoints serves. The exception is good cause, and the rule introduces its examples with the words “such as,” so they illustrate the exception and do not exhaust it. To see why the rule is framed this way, start with the freedom it limits.
Ordinarily, a lawyer may accept or reject employment at the lawyer’s own discretion, just as a client ordinarily may select counsel.2 Neither freedom is absolute. An indigent criminal defendant who receives appointed defense counsel does not choose that lawyer, and the lawyer’s freedom to decline a client is qualified in the same way.3
Two purposes explain the qualification. The first is the lawyer’s ethical aspiration to provide pro bono publico service. The second is the need to ensure that unpopular matters and clients are not denied access to the legal system. For both reasons, a lawyer should consider accepting court appointments. Whether acceptance is a full professional obligation is stated cautiously: a lawyer “arguably” may be required to accept an appointment.4
In practice, appointments reach a narrower group than the bare rule suggests. Under standard practice, courts appoint only lawyers who have volunteered to be available and who have demonstrated experience and competence in the type of case, and appointed lawyers typically are entitled to payment.5 West Virginia shows the rule at work in a statutory setting. There, the appointment of “qualified private attorneys” from inside or outside the circuit in question is subject to Rule 6.2 of the state’s Rules of Professional Conduct, which is titled “Accepting Appointments.”6 The power to appoint and the good-cause exception travel together. A court that reaches for a private lawyer does not thereby cancel the lawyer’s ability to show good cause.
The wording of the rule identifies what triggers the duty. “Shall not seek to avoid” prohibits an effort to escape an appointment that a tribunal has made. A prospective client’s request is a different event: it leaves the lawyer’s ordinary freedom to accept or reject employment untouched.7 Any analysis of a lawyer who declines a criminal defense matter therefore begins with one question: who made the assignment?
The two lawyers match in experience, in the charge, and in motive. Only one fact separates them: a tribunal made the assignment to Okafor, while a prospective client merely asked Webb. Okafor’s motive also fails on its own terms. Rule 6.2(b) lets a lawyer avoid an appointment when representing the client is likely to result in “an unreasonable financial burden on the lawyer,” but a lawyer ought not refuse merely because the work is less financially rewarding than other opportunities, which will almost always be the case, or even because it will produce a net financial loss.8 The sections that follow take up the grounds that do qualify, and then ask what happens when a court tries to compel a lawyer who has none.