Sacandy v. Walther, S91A1428
| Decision Date | 27 February 1992 |
| Docket Number | No. S91A1428,S91A1428 |
| Citation | 413 S.E.2d 727,262 Ga. 11 |
| Parties | SACANDY v. WALTHER et al. |
| Court | Georgia Supreme Court |
Karen L. Sacandy, pro se.
Michael J. Bowers, Atty. Gen., Mark H. Cohen, State Law Dept., Beverly B. Martin, Sr. Asst. Attys. Gen., Atlanta, for Walther et al.
Karen Sacandy, a Rome lawyer, brought this action against the superior court judges of the Rome Judicial Circuit, challenging the circuit's Indigent Defense Program. She sought a declaratory judgment that the Program was unlawful, and an injunction prohibiting the judges from requiring her to represent any individuals and from incarcerating her for her refusal to participate in the Program.
The Program receives state funding and was established under the Georgia Criminal Justice Act, OCGA § 17-12-1 et seq., the Georgia Indigent Defense Act, OCGA § 17-12-30 et seq. and the Guidelines for Local Indigent Defense Programs approved by this court at 246 Ga. 837 (1980) and amended in 1989. The Program provides indigent defense services through a panel of State Bar members 1 residing or maintaining offices in Floyd County, admitted to practice for less than fifteen years, 2 as well as lawyers who request that their names be included in the panel. Appointed counsel are compensated under the Program in accordance with hourly rates published "from time to time" by the Superior Court of the Rome Judicial Circuit. In the event lawyers have not handled criminal defense matters, or believe they are not prepared to do so, the Program provides they
... shall be appointed as uncompensated co-counsel in a sufficient number of criminal matters so that the attorney shall, when said attorney certifies that he or she is prepared to do so, assume active participation as sole defense counsel in indigent criminal matters....
Sacandy declined an appointment to represent a criminal defendant, stating she was unqualified to do so, and could not afford to serve as uncompensated co-counsel. The case was reassigned and Sacandy was not sanctioned. 3 The trial court rejected Sacandy's arguments that the Program was unconstitutional under the state and federal constitutions, denied her claims for injunctive and declaratory relief, and held that it was her professional obligation to serve as appointed counsel under the Program.
1. At the outset, we reject Sacandy's argument that the superior court judges are not authorized to appoint counsel. The judges of the superior courts, as officials charged with the duty of administering justice, have the inherent power to take action necessary to " 'efficiently and completely ... discharge those duties....' " Wallace v. Wallace, 225 Ga. 102, 111, 166 S.E.2d 718 (1969), citing Lovett v. Sandersville R. Co., 199 Ga. 238, 33 S.E.2d 905 (1945); Judicial Qualifications Commission v. Lowenstein, 252 Ga. 432, 433(1), 314 S.E.2d 107 (1984). This power includes the ability to appoint counsel to represent indigent defendants, as was statutorily recognized in 1979 by the enactment of the Georgia Indigent Defense Act, OCGA §§ 17-12-30, 17-12-44. 4 In re Straughan & Straughan, 260 Ga. 821, 822 n. 2, 400 S.E.2d 906, 908 (1991). We also find no merit to Sacandy's various arguments that the superior court judges' appointment of counsel under the Program involves those judges in violation of the doctrine of separation of powers.
2. We agree with Sacandy's contention that the Program is unenforceable insofar as it authorizes the appointment of counsel without any sort of compensation, even under limited circumstances. 5
... [T]he law of this state has, since 1953, mandated local compensation for counsel appointed in capital felony cases, Ga.L.1953, Nov.-Dec. Sess., p. 478; OCGA § 17-12-60 et seq., and since 1968, in all indigent cases, Ga.L.1968, p. 999, as amended, Ga.L.1974, p. 1100; OCGA § 17-12-1 et seq. In addition, a state-funded program, the Georgia Indigent Defense Act, was enacted in 1979, Ga.L.1979, p. 367; OCGA § 17-12-30 et seq., declaring:
[i]t is the policy of this state to provide the constitutional guarantees of the right to counsel and equal access to the courts to all its citizens in criminal cases and to provide: ...
(2) Adequate compensation for counsel who represent indigent persons accused of crime Birt v. State, 259 Ga. 800, 387 S.E.2d 879 (1990). 6 See also § 2.6 Guidelines.
3. Sacandy argues that she should not be required to participate in the Program because she has no experience nor interest in criminal defense. She thus raises the difficult issue of the competence required of lawyers appointed under an indigent defense program. DR 6-101(A) of the Code of Professional Responsibility provides that: "A lawyer shall not: (A)(1) Handle a legal matter which he knows or should know that he is not competent to handle...."
The first Ethical Consideration accompanying Canon 6 provides:
Because of his vital role in the legal process, a lawyer should act with competence and proper care in representing clients. He should strive to become and remain proficient in his practice and should accept employment only in matters which he is or intends to become competent to handle. 7
The Guidelines specifically provide that a local panel program, such as Rome's, shall include only competent lawyers as panel attorneys ( § 3.2). 8 It is clear that the superior court judges are restricted to appointing competent lawyers to represent indigent defendants. This is not to suggest that extended experience in criminal matters is a prerequisite for competence in all criminal cases. Certainly lawyers without such experience are competent to handle some criminal matters in their entirety, and to assist in others. 9 Also, lawyers may take steps to become more competent in criminal defense, and, in light of the current crisis in indigent defense, we applaud local bar efforts to assist in broadening the availability of competent defense counsel through "mentoring," and other programs. 10 However, we reject Sacandy's argument that lack of interest in criminal matters equates to incompetence, or otherwise excludes a lawyer from participation in the Program.
There is no evidence of the retention of incompetent counsel under the Program. Indeed, it appears the trial court may have accepted Sacandy's argument that she was not competent to represent the defendant to whom she had been appointed as counsel, and excused her for that reason.
4. We find no merit in Sacandy's remaining enumerations.
Judgment affirmed in part; reversed in part.
This opinion in no way impedes the right and opportunity of lawyers competent to try criminal cases to volunteer service without compensation. In fact, I applaud the professionalism of those lawyers who participate in the Atlanta One Thousand Lawyers for Justice project. I hope this activity will spread around the state.
I also point out that nothing in this opinion prevents an inexperienced lawyer from serving as a volunteer co-counsel without compensation.
1 Local governing committees, as defined in OCGA § 17-12-37(b) may elect to provide indigent defense services through a public defender system, panel of private lawyers, a legal aid and defender society, a contract system or a combination of the foregoing to provide adequate legal defense for indigents accused of felonies or misdemeanors. Guidelines § 2.
2 Whether limiting the panel to lawyers with less than fifteen years experience conflicts with the Guidelines is not an issue here. The Guidelines provide, however, at § 2.4, that where the local committee elects, as here, to provide indigent defense services through a panel attorney program, appointment of attorneys and the assignment of cases should be made as follows:
(a) Appointments of private attorneys shall be made on an impartial and equitable basis;
(b) The cases shall be distributed among the attorneys to ensure balanced workloads through a rotation system;
(c) More difficult or complex cases shall be assigned to attorneys with sufficient levels of experience and...
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