Formal Opinion 168
(1978)
Obligations of Court-Appointed Criminal Defense Counsel When Learning That Client No Longer Indigent

An opinion has been requested regarding the obligations of court-appointed criminal defense counsel who learns that his/her client is no longer indigent. The following inquiries and responses set forth the Committee’s position:

1. Must the attorney formally advise the court of the client’s change of circumstance and further seek either discharge as appointed counsel or appointment under a "part payment" plan pursuant to CrR 3.1(d)(2)?

Assuming that the client is no longer eligible for appointed counsel, a court-appointed attorney should normally advise the court of the client’s change of circumstances. CrR 3.1(b) (2) provides that counsel who is initially appointed shall continue to represent the defendant "through all stages of the proceedings unless a new appointment is made by the court following withdrawal of original counsel pursuant to section (e) because geographical considerations or other factors make it necessary." Accordingly, the court-appointed attorney should either seek withdrawal in the manner permitted under CrR 3.1 or seek continued employment under a "part payment" plan as specified in CrR3.1(d)(2).

2. Must the attorney advise the client that the client is no longer eligible for a court-appointed attorney and that he/she is seeking discharge (or simply withdrawing) from the appointment?

Prior to advising the court of the client’s change of circumstances, a court-appointed attorney must advise the client that the attorney believes the client is no longer eligible for a court-appointed attorney. If the attorney seeks withdrawal pursuant to CrR 3.1(e), the client should be advised in advance of this fact.

3. Must the attorney advise the client that the client is now entitled to seek retained counsel of his or her choosing?

Yes.

4. May the attorney encourage the client to continue employment because of the attorney’s familiarity with the case?

Yes. This does not constitute solicitation. See DR 2-104(A) (1).

5. If the attorney does not fulfill such duties as the Committee feels apply, may the attorney nonetheless charge the client for services rendered?

No. The imposition of postproceeding payment obligations upon an accused’s exercise of the right to counsel without providing the client an opportunity to discuss the fee involved, in advance, is probably arbitrary and violative of due process protections. State v. Eide, 83 Wn.2d 676, 521 P.2d 706 1974). The client should not be charged for the attorney’s services unless the fee arrangement has been discussed and agreed upon in advance. Cf EC 2-19.

[See RPC 7.3]