Opinion 240
Question Presented
An attorney has received creditable information to the effect that a convict, now confined in the Texas State Penitentiary, is erroneously serving an 8 year sentence (from the county in which said attorney resides) for another's offense. Attorney's investigation of official records substantiates the information received and indicates that exculpative evidence, available but not presented at the trial of the cause would be exonerative on a new trial, should there be one. Believing that a grave injustice has been done, attorney states he sought the attention of those in proper authority in order that a correction might be effected, but his efforts were met with indifference, and it appears that those who could rightfully act have no intention of doing so.
Attorney states that he has at no time represented the prisoner in question (prisoner was defended by court-appointed counsel); attorney does not know the prisoner nor has he communicated with him; attorney has no authority from the prisoner or his family to intercede in the prisoner's behalf but, being convinced of the propriety of a writ and of a subsequent acquittal, attorney is willing to act in prisoner's behalf without pay.
May an attorney under such circumstances ethically volunteer his services when his only motive is to see justice done?
18 Baylor L. Rev. 319 (1966)
SOLICITATION
It would be ethical for a lawyer to volunteer to represent, and to represent, a convicted person in order to present to the proper court grounds or evidence which would show that the convicted person has been unjustly convicted in accordance with the law, provided (a) the convicted person authorizes the procedure in his behalf and (b) the attorney who volunteers scrupulously avoids taking any compensation in any form for his services.
Canon 24.
The committee is of the opinion that it would be ethical for a lawyer to volunteer to represent, and to represent, a convicted person in order to present to the proper court grounds or evidence which would show that the convicted person has been unjustly convicted in accordance with the law, provided (a) the convicted person authorizes the procedure in his behalf and (b) the attorney who volunteers scrupulously avoids taking any compensation in any form for his services.
The circumstances presented in this question are that the attorney has no official position in which to act and that any action by him would necessarily be or purport to be on behalf of the prisoner. The attorney is motivated to represent the prisoner without pay because of his sense of justice and not for his own gain in any manner. His personal relationship with the prisoner is, however, virtually non-existent.
The relationship of attorney-client is so personal and involves such a high fiduciary duty that an attorney cannot undertake to represent one without authorization. The committee, therefore, holds that the attorney cannot represent the prisoner without authorization.
This leaves the obvious question: Can the attorney solicit unpaid "employment" by the prisoner to handle the matter for him? Canon 24 forbids solicitation of professional employment when the same is not warranted by personal relationship. In spite of this, it has sometimes been recognized that an attorney may solicit business in the sense that he offers to handle a legal matter without charge for one whose rights he feels have been invaded, when the attorney is not motivated by thought of securing financial gain, publicity, or other personal benefit. Such a case is In Re Ades, 6 F. Supp. 467 (D.C., Md., 1934), in which the court said that it "cannot be laid down as an inflexible maxim that a lawyer may never volunteer his services to a litigant, where the litigant is in need of assistance . . ." The court cited many well known instances, where prominent lawyers, including Alexander Hamilton in Croswell vs. The People, and Reverdy Johnson in the Dred Scott case, volunteered services. Also see Gunnels vs. Atlanta Bar Association, 12 S. E. 2d 602. Also see Casenote 8 So. Calif. L. Rev. 239 (1935). (9-0.)
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 240 (1961)