Opinion 2000

The inquiring attorney asks whether it would be ethically permissible for counsel assigned to represent indigent criminal defendants to participate in a proposed county program governing counsel’s compensation and the provision of other client services, in light of RPCs governing trust accounts, independent professional judgment, and client confidences. [Editor`s note: The county in question contracts with private lawyers to provide indigent criminal defense. The contracts for payment of a flat fee plus reasonable court-approved costs, with half paid at appointment and the rest upon completion of the case. In aggravated murder death penalty cases, the lawyer is paid on a designated hourly rate. A minimum budget for the case through the mitigation phase is negotiated by the lawyer with the court. That amount is paid into the lawyer`s trust account and drawn down as the lawyer invoices the county. A similar process is used to arrive at amount for the remainder of the case. Additional amounts are negotiated with the court at the designated hourly rate.]

There appears to be no inherent conflict between the county’s proposal and the trust account, independence and confidentiality obligations of counsel under RPC 1.14, 1.8(f) and 1.6 respectively. Because the proposal includes an advance fee deposit, appointed counsel would need to comply with regulations governing trust account management with respect to the fee advance. See RPC 1.14. Although assigned counsel is required by statute to provide sufficient information for the court to determine whether requested fees and expenses are necessary to provide an adequate defense, there would seem to be no reason why providing information sufficient for this purpose would, of necessity, compel disclosure of client confidences or secrets contrary to RPC 1.6.

Assuming for the sake of argument that confidences or secrets would need to be disclosed, there are procedures that counsel could use to protect those confidences and secrets; for example, ex parte and sealed pleadings, as recognized in CrR 3.1 might be employed; appointment of a special master by the court could be sought; or assignment of such review to a judge other than the trial judge would be potential solutions. The same would seem to be true with respect to providing information adequate to document that services for which compensation is claimed have been provided. See Formal Opinions 183, 188 and 195. Finally, although the county’s proposal refers to “negotiating” a minimum budget with the trial/appointing judge, we would not understand the term “negotiate” this context to contemplate the court imposing its views of proper defense strategy on appointed counsel, or to authorize appointed counsel’s subordination of independent professional judgment to such views. See RPC 1.8(f).

We caution that the proposal we have been asked to consider is very general, and that we are neither approving particular rules that the county may adopt nor the disclosure of specific information. Appointed counsel will have to determine whether particular rules continue to allow for conduct consistent with ethical obligations and the scope of information that ethically may be provided for purposes of securing compensation and other services.