Many criminal law attorneys can relate to this situation: They are sitting in the gallery waiting for their case to be called and suddenly, they hear their name, but not for the case they have prepared for. The judge has called them from the bench requesting that they represent an in pro per litigant or a litigant whose attorney has not appeared. The attorney looks around for a moment, secretly hoping it really was not their name that they heard; then, the realization hits that their name was actually called to represent a litigant they do not know, and the attorney does not see a way out with a judge and an entire gallery looking on. It is that deer-in-the-headlights moment where the attorney must make an immediate decision.

With an immediate response needed, we usually do not recall our time in law school in that moment, but when we do have the time, we remember our constitutional law class and the feeling of learning why we went into law in the first place. We remember reading and debating the right to an attorney in Gideon v. Wainwright¹ and the right to an attorney for juveniles in In re Gault.² And while we may not remember our constitutional law class when called upon to represent a litigant at the spur of the moment, our memory tracks to the fundamental right that the guarantee of counsel is essential to a fair trial and applies through the due process clause of the 14th Amendment to the U.S. Constitution. This fundamental understanding is what drives attorneys to accept the appointment instinctively and automatically. However, while we know this right, there’s the question of ethics and when attorneys should pause prior to accepting appointments from the bench.

Ethics Opinion RI-51 provides:

It is well established that under the Sixth Amendment a criminal defendant must be afforded a reasonable opportunity to secure counsel of the client’s own choosing, Urquhart v. Lockhart, 726 F2d 1316 (CA8 1984); U.S. v. Burton, 584 F2d 485 (DC Cir 1978), cert den 439 US 1069 (1979).

The key phrase there is “secure counsel of the client’s own choosing” (emphasis added). When an appointment occurs from the bench, there is an inherent balancing act of the party’s right to counsel of their own choosing, the defendant’s right to be represented at every stage, the demands on the court’s docket, and the ethical considerations attorneys must consider prior to taking an appointment.

Attorneys asked to accept appointments must also weigh the ethical considerations prescribed in the Michigan Rules of Professional Conduct (MRPC) prior to taking on any representation, even in a limited scope. The first ethical consideration attorneys must weigh is whether representing the client creates a conflict of interest. Prior to taking on any client, be it retained or appointed, attorneys must conduct a conflict-of-interest check under MRPC 1.7 and 1.9.³ Under MRPC 1.7, attorneys must not represent a client if representation would be directly adverse to another client unless the attorney reasonably believes representation will not adversely affect the relationship with the other client and each client has consented to representation after consultation. Further, attorneys must not represent a client if representation would materially limit duties and responsibilities to another client, third party, or the attorney’s own interests unless the attorney reasonably believes representation will not be adversely affected and the client consents after consultation. Additional considerations are required under MRPC 1.7 when attorneys are considering representing multiple clients in a single matter.

This analysis can’t happen at a moment’s notice. Attorneys must figure out whether MRPC 1.7 applies by reviewing their current roster of clients, determining if representation would be adversely affected in any capacity, and providing consultation and receiving consents from both clients. These considerations take time — it can’t happen during the walk to the defendant needing representation after the attorney’s name is called.

MRPC 1.9 must also be considered when determining whether there is a conflict of interest with a former client. An attorney who has formerly represented a client in a matter must not represent another person in the same or substantially related matter where the person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation.⁴ Again, the attorney must analyze whether MRPC 1.9 applies by reviewing their former roster of clients, determining if representation would be adversely affected, and providing consultation and receiving consent from the former client, which cannot be accomplished during the few moments after their name is called from the bench.

In addition to the aforementioned analyses, additional ethical considerations to consider are:

• Competence in the area they are asked to be appointed to under MRPC 1.1.
• Scope of representation under MRPC 1.2.
• Communication under MRPC 1.4.
• Client with a disability under MRPC 1.14.
• Communication with a person represented by counsel under MRPC 4.2 (if the defendant is represented but the attorney did not appear.)
• Dealing with a self-represented person under MRPC 4.3.
• Accepting appointments under MRPC 6.2.

Courts may require an appointed attorney to be present for arraignments in case a party’s retained or appointed counsel does not appear, or a party appears in pro per as they have not yet secured representation. Commentary to MRPC 1.1 provides:

In an emergency, a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client’s interest.

While arraignments are often considered pro forma, in instances where a retained or appointed attorney does not appear, attorneys picked from the gallery may violate their duty of competence under MRPC 1.1 as they have no knowledge of how the retained or appointed attorney intended to proceed with the case, don’t know whether discussions occurred with opposing counsel, and are unsure if a possible legal strategy may be affected by the hearing. The same can be said for clients who haven’t had the opportunity to secure representation and have appeared in pro per.

In a scenario where a case is further along, an attorney called from the gallery or public defender’s office is not in a position to competently represent the client under MRPC 1.1 since they have no knowledge of how the retained attorney intended to proceed with the case. If the defendant asks to terminate the relationship with retained counsel and requests alternative counsel, whether that counsel be retained or appointed, the court should adjourn the hearing to provide time for the defendant to speak with their retained counsel. During adjournment, the prospective attorney should ensure they have no ethical issues with taking the client, have a conversation with retained counsel to confirm the attorney-client relationship has ended, and, if necessary, complete a substitution of attorney or give time for the retained counsel to file a motion to withdraw and receive an order approving the withdrawal under MRPC 1.16 before speaking with the defendant and filing their appearance. It would be the same as any other attorney assuming a case midstream, however, covering without approval of the client or retained attorney would be unethical.

This same analysis applies whether an attorney is summoned from the gallery or whether the judge requested that a contracted entity be present for just-in-case scenarios, i.e., a public defender’s office. In fact, conflicts may be more evident with a public defender’s office as it may currently represent a co-defendant, a victim, or a witness that possibly may create a conflict of interest with the defendant needing representation at that moment.

In the end, pinch hitting may cause substantial adverse ramifications to the party and their case. Attorneys should request adjournment to fulfill their ethical duties and consider whether they are able to take on the representation even in a limited scope. While this may cause delays to the court’s docket, it is paramount to remember that the client’s interests come first and attorneys must consider their ethical obligations before proceeding.

The next question for the court is dealing with the attorney who does not appear for a scheduled proceeding. The court should summon the missing attorney and determine the reason for the absence. The court may also wish to consider sanctions for non-appearance. If the attorney continues to miss scheduled court appearances, the court should determine whether it is appropriate to report⁵ the attorney to the appropriate disciplinary entity under MRPC 8.3.

CONCLUSION

Often, there is no second thought when a judge appoints an at torney who happens to be in the courtroom on the day of a proceeding. Judges have large dockets and must keep them moving. However, attorneys must consider their ethical obligations before accepting an appointment. Otherwise, the client may be further disadvantaged by the appointment due to trial strategy, the need to find another attorney due to a conflict of interest, or other issues that may arise. The client must be afforded the opportunity to secure counsel of their own choosing, and the attorney must have the opportunity to fulfill ethical obligations and avoid situations that could result in disciplinary consequences.