Good Cause to Decline

Good Cause to Decline

Rule 6.2 states its default and its exception in one sentence: a lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, “such as” the grounds that follow.¹ “Such as” introduces examples, so good cause is the governing standard and the listed grounds illustrate it. A lawyer whose reason is not on the list may still show good cause, but the reason must justify excusing the lawyer from a court’s assignment as the listed grounds do. A bare preference does not.

The rule gives three illustrations, and each describes a distinct way the appointment would break down:

• Representing the client is likely to result in violation of the Rules of Professional Conduct or other law.²
• Representing the client is likely to result in an unreasonable financial burden on the lawyer.³
• 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.⁴

Under the first ground, the client could not receive lawful service from this lawyer. Under the second, the assignment would impose an unreasonable financial burden on the lawyer. Under the third, the client-lawyer relationship would be compromised at the start.

Each ground also carries a threshold that keeps it narrow: the violation must be likely, the burden must be unreasonable, and the repugnance must be strong enough to impair the work. The narrowness serves the rule’s purpose. The comment to Rule 6.2 speaks of appointments to represent a person who cannot afford counsel or whose cause is unpopular,⁵ and a loose standard would let lawyers avoid precisely those appointments. The sections below take the grounds in turn, each with facts on both sides of its line.

Violation of Rules or Law

Rule 6.2(a) recognizes good cause when “representing the client is likely to result in violation of the Rules of Professional Conduct or other law.”⁶ This ground differs in kind from the other two, which ask what the appointment will cost the lawyer. This one asks what the lawyer is permitted to do, and the answer leaves little choice. The lawyer must demur, because the Rules preclude accepting a representation that would violate them.⁷ Appointment does not relax the Rules: the client of an appointed lawyer is no less entitled than anyone else to a lawyer who complies fully with them.⁸

Two situations fit the ground: an impermissible conflict of interest, and a want of competence that reasonable preparation and study could not cure.⁹

Competence is the half of this ground that invites overstatement. Rule 1.1 requires “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation,” so preparation counts as part of competence.¹⁰ A lawyer may accept a representation when the requisite competence can be achieved through reasonable preparation, and that holds for a lawyer appointed to represent an unrepresented person.¹¹ The measure is what the lawyer can reach after reasonable study, and not only what the lawyer knows on the day of the appointment. Unfamiliarity with an area of law is where the analysis begins, and it does not end there.

West Virginia’s highest court gave the leading guidance in Cunningham v. Sommerville. The court resolved that case on the financial-burden ground, discussed below, because the petitioner was house counsel whose employer forbade outside practice. It nonetheless addressed Rule 6.2(a) for trial courts that appoint private lawyers.¹² A lawyer appointed to defend an indigent person in a criminal case need not necessarily have criminal trial experience to be competent. The appointing court should allow sufficient time for study and preparation and should consider appointing a more experienced co-counsel to assist an inexperienced lawyer.¹³ The burden of showing incompetence rests on the lawyer. One who seeks to avoid an appointment on that basis must show both the incompetence and an inability to become competent through study and preparation in a reasonable time, and even if the lawyer makes that showing, the court may in its sound discretion appoint a more experienced attorney as co-counsel.¹⁴ The court cited Stern v. County Court, a Colorado decision under which a lawyer experienced in civil but not criminal litigation ordinarily may not decline a criminal appointment. Under Stern the lawyer must show incompetence and not merely allege it, and once the lawyer does, the trial court decides whether the lawyer can become competent alone or with the help of co-counsel.¹⁵

The narrow reading follows from how the burden of appointments moves. Every lawyer excused from the pool leaves the others with more work. In State ex rel. Partain v. Oakley, the court observed that lawyers who lack criminal experience and cannot prepare adequately in a reasonable time will be unavailable for criminal appointments, which shifts the burden to the lawyers who have the requisite skill.¹⁶ That shift is the price of excusing lawyers who truly cannot become competent. If inexperience alone were good cause, any lawyer who preferred another practice area could claim it, and the work would fall on a shrinking group of experienced lawyers.

The result changes for a lawyer who shows that the competence the matter demands cannot be reached through reasonable study in the time available. That lawyer has made the showing the rule demands, though the court keeps its discretion to appoint more experienced co-counsel. An answer that stops at “never handled this kind of case” has not reached the dispositive question, which is whether the lawyer can become competent.

Unreasonable Financial Burden

Rule 6.2(b) recognizes good cause when “representing the client is likely to result in an unreasonable financial burden on the lawyer.”¹⁹ The prior ground asked what the Rules permit the lawyer to do. This one asks what the assignment will do to the lawyer’s livelihood. Two words in the clause control the analysis. “Likely” calls for a reasonable expectation of the burden, and Cunningham asked whether the lawyer’s belief that the burden would follow was reasonable.²⁰ “Unreasonable” sets the weight, and because nearly every appointment costs a lawyer something, that word decides almost every case.

Appointed work ordinarily pays less than the work a lawyer could do instead, so a lawyer can almost always point to a lower return. A lawyer ought not refuse an appointment merely because it is less financially rewarding than other legal work, or even because it will produce a net financial loss.²¹ If either counted as good cause, every lawyer could invoke the exception on every appointment, and the duty would dissolve. Some sacrifice is part of the duty.

The exception is reserved for severe economic dislocation. Rule 6.2(b) is directly parallel to Rule 1.16(b)(6), which lets a lawyer withdraw when the representation will result in an unreasonable financial burden. In both contexts the exception fits only where exceptional demands of lawyer time (preventing work on other matters) or of expenses incurred would cause a severe economic dislocation to the lawyer’s practice.²² The Cunningham court applied a similar yardstick to appointments: compelled acceptance would “impose a financial sacrifice so great as to be unjust.”²³ The measure is the effect on the lawyer’s practice and livelihood as a whole, and the lawyer’s profit on a single case does not answer the question.

The facts of Cunningham show the line. A trial court had appointed the petitioner to represent forty-three indigent criminal defendants charged with seventy-five crimes, most of them misdemeanors, some of them felonies, and one a juvenile proceeding.²⁴ She was full-time house counsel for a business corporation that forbade her to engage in the separate practice of law. The court held that house counsel so employed may avoid an appointment under Rule 6.2(b), and it applied the same rule to a lawyer employed full time by a governmental entity that forbids separate practice.²⁵ It found her belief in the likelihood of the burden manifestly reasonable and concluded that compelling acceptance, with the virtually certain loss of her full-time employment, would impose a financial sacrifice so great as to be unjust.²⁶ It then awarded the writ of prohibition barring enforcement of the trial court’s ruling.²⁷

The burden in Cunningham came from a collision between the appointments and her employment: the employer forbade separate practice, and acceptance would virtually certainly cost her the job. The loss at stake was her livelihood, which is a different order of burden from a lower fee on a given case. An exam stem that tests this line usually supplies a fee comparison, and the question is whether the comparison shows dislocation or only a lower return.

Both this lawyer and the lawyer in Cunningham would lose money measured against their alternatives. The fact that moves the result is what the loss does to the lawyer’s footing. In Cunningham the appointments threatened the lawyer’s employment itself, while here the shortfall leaves the practice untouched. Dislocation can also come from the demands of a single case, with no employer’s prohibition involved.

The island facts illustrate the second route the doctrine recognizes, exceptional demands of time and expense, alongside the employment conflict seen in Cunningham. A claim that rests on lower fees alone has not yet reached either route.

Repugnant Client or Cause

Rule 6.2(c) adds the third illustration: good cause exists when “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.”³¹ The first two grounds ask what the Rules permit and what the assignment costs. This one asks what the lawyer’s conscience will do to the work. The clause sets two linked thresholds: the aversion must reach repugnance, and it must be strong enough that the relationship or the lawyer’s ability to represent is likely to suffer. A lawyer who feels strongly but can still serve the client loyally has not shown the harm the clause describes.

Rule 6.2(c) resembles Rule 1.16(b)(4), which permits withdrawal when “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.” The two differ in timing. Rule 1.16(b)(4) addresses disputes that arise after retention, once the representation is underway, while Rule 6.2(c) focuses on the nature of the client or the cause at the outset.³²

The standard is demanding. A lawyer may resist an appointment when antagonism toward the client or the cause reflects a fundamental conflict that would require the lawyer to compromise a deeply held moral principle, or a powerful personal disgust that would impair any attorney-client relationship.³³ The two sources differ, one rooted in conviction and the other in personal reaction, but each explains why impairment is likely. Ordinary distaste does not reach the standard. Unpopular clients and causes are the very ones the comment to Rule 6.2 has in view, and ordinary distaste would let lawyers screen out every one of them.³⁴

The standard illustrations show the two sources at work. A lawyer who believes in the sanctity of unborn human life should not be forced to betray that principle by accepting an appointment to represent a minor girl seeking judicial permission to have an abortion without parental notice or consent.³⁵ Likewise, a lawyer who has been the victim of sexual violence should not be expected to accept an appointment to represent a criminal defendant charged with rape or sexual abuse.³⁶ In the first, the representation would work toward the very result the lawyer’s principle condemns. In the second, the lawyer’s own trauma would color every contact with the client. These illustrate a deeply held principle and a personal trauma, and they do not mean that any lawyer with a general objection to a type of case may decline it.

Both lawyers dislike the client, so the difference lies in the depth and source of the feeling and in its likely effect on the work. Hartley’s reaction concerns what her client did, and she can still represent him fully. Novak’s reaction is a personal disgust that would impair any relationship with such a client. An exam stem that says only that the lawyer finds the defendant despicable has described Hartley, and it has not yet supplied facts that reach Novak’s side of the line.

Rule 1.2(b) limits the ground from one direction. A lawyer may insist that an agreement to represent a client, “including representation by appointment, does not constitute an endorsement of the client’s political, economic, social, or moral views or activities.”³⁷ An objection that rests only on the client’s views therefore targets something the representation does not ask the lawyer to adopt.

The nature of the cause can matter differently when the person seeking appointed counsel wishes to initiate litigation. In that setting the commentary says the lawyer may legitimately consider whether the objective, in its impact on other litigants or its effect on society in changing the law, contradicts the lawyer’s understanding of the good society. The lawyer may then legitimately refuse to cooperate in pursuing an objective the lawyer deems morally unsound.³⁸ The commentary acknowledges Rule 1.2(b) and still maintains that position.