Compelled Service and Compensation

Rule 6.2 tells a lawyer not to seek to avoid an appointment by a tribunal except for good cause, and that instruction fixes the conduct for which a lawyer may be disciplined.¹ The rule leaves two practical questions unanswered: whether a court may force a particular lawyer to serve, and whether the lawyer must be paid. The answers come from law outside the Rules, such as an appointment statute or a state constitution, and they vary by jurisdiction. On the bar exam, keep three questions apart: does the lawyer have good cause, can the court compel service, and must the service be compensated?

Power to Compel Service

Rule 6.2 regulates the lawyer and does not hand a court a power of command. The point is unsettled even as a matter of professional obligation. A lawyer should consider accepting court appointments, both as part of the aspiration to provide pro bono publico service and to ensure that unpopular matters and clients are not denied access to the legal system, and a lawyer “arguably” may be required to accept an appointment as a professional obligation.² Practice is cautious in the same way. Courts ordinarily appoint lawyers who have volunteered to be available and who have shown experience and competence in the type of case.³

Cunningham, the West Virginia decision discussed earlier on the duty to accept, shows how far compulsion can be limited. The court stated that its earlier decisions had not concluded that every person licensed to practice law in the state must accept criminal appointments. The earlier Facemire holding was narrower: the trial court ordinarily must follow the attorney-appointment sequence set by statute for representing indigents in criminal, juvenile, and other eligible proceedings.⁴ The court also relied on a standard that calls for spreading assignments as widely as possible among qualified lawyers who are experienced and active in trial practice and familiar with the criminal courts. The commentary to that standard rejects the notion that every member of the bar should be required to provide representation.⁵ The court then held that the lawyer was entitled to avoid the appointments under Rule 6.2(b), because they were likely to result in an unreasonable financial burden, and it issued a writ of prohibition barring enforcement of the trial court’s ruling.⁶

Cunningham teaches two things. A bar license alone did not make every lawyer a candidate for every appointment in that jurisdiction. And Rule 6.2 still did its work, because it supplied the ground on which the lawyer could be excused. Whether a court can compel service is therefore a question of local appointment law, while Rule 6.2 supplies the good-cause test.

Compensation for Appointed Lawyers

Appointed lawyers are typically entitled to payment for their services, which is why most appointments never raise a compensation dispute.⁹ The dispute becomes constitutional when a court compels a lawyer to serve for nominal pay or none, and Alaska supplies the leading illustration.

In DeLisio v. Alaska Superior Court, the public defender agency could not represent a criminal defendant because of a conflict of interest, and the court appointed an experienced private trial attorney instead.¹⁰ The attorney invoked the Alaska Constitution, which provides that private property shall not be taken or damaged for public use without just compensation. Alaska reads the word “damages” in that clause to protect owners more broadly than the Fifth Amendment does.¹¹ The court held that a court appointment compelling an attorney to represent an indigent criminal defendant is a taking of property for which just compensation is required.¹²

The third step carries the policy. A program built for the public’s benefit should be paid for by the public, and compelling representation for only nominal compensation unfairly and disproportionately burdens the one lawyer who is called.¹⁴ The same reasoning explains why a broad civic duty such as jury service does not pose the same problem. That duty falls on the citizenry generally, while a compelled appointment concentrates the cost of a public program on a single class of lawyers.

Once compensation is owed, the remaining question is how much. The measure of value will not necessarily reflect any specific attorney’s normal rate. It reflects the compensation received by the average competent attorney operating on the open market.¹⁵ A lawyer who ordinarily bills at a premium therefore cannot demand that premium, but the payment still tracks what comparable work earns in the market.

The holding has limits. It rests on article I, section 18 of the Alaska Constitution, so it controls in Alaska and persuades elsewhere only to the extent other courts reason the same way. It is a takings holding and not a rule of professional conduct. The court also kept aspiration and compulsion apart. Attorneys should be willing to undertake pro bono representation, and the court applauded those who do, yet it concluded that this ethical obligation cannot justify the practice of compelled gratuitous representation.¹⁶ It reached that result after considering and rejecting the arguments offered for uncompensated service.¹⁷

The compensation rule and Rule 6.2(b) work as different tools. Under Rule 6.2(b), a lawyer cannot decline an appointment merely because it pays less than other work or even produces a net loss.¹⁸ To be excused, the lawyer must show that representing the client is likely to result in an unreasonable financial burden, as the West Virginia lawyer did.¹⁹ DeLisio asks a different question: when a court does compel service, who pays? In a jurisdiction that follows it, a lawyer who cannot make the Rule 6.2(b) showing is still not left to absorb the cost, because the compelled service must be compensated. In a jurisdiction that does not, Rule 6.2(b) remains the ethics-based route to being excused.