Stern v. County Court In and For County of Grand

• Decision Date: 22 May 1989
• Docket Number: No. 87SA354,87SA354
• Parties: , 16 A.L.R.5th 882 Ronald S. STERN, Plaintiff-Appellant, v. The COUNTY COURT IN and For the COUNTY OF GRAND and Judge Scotty P. Krob, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 1074

773 P.2d 1074

58 USLW 2042, 16 A.L.R.5th 882

Ronald S. STERN, Plaintiff-Appellant, v. The COUNTY COURT IN and For the COUNTY OF GRAND and Judge

Scotty P. Krob, Defendants-Appellees.

No. 87SA354.

Supreme Court of Colorado,

En Banc.

May 22, 1989.

Ronald S. Stern, Granby, pro se.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Neil L. Tillquist, Asst. Atty. Gen., Denver, for defendants-appellees.

ROVIRA, Justice.

The question presented in this case is whether the trial court abused its discretion by appointing an attorney with limited experience in criminal matters to represent a criminal defendant. We conclude that the trial court did not abuse its discretion. Accordingly, we affirm.

I.

Appellant, Ronald S. Stern, has been a licensed attorney in the State of Colorado since 1974. Stern practices law in Grand County, Colorado, a rural community with a relatively small population. A limited number of attorneys practice law in Grand County, and only two or three of them routinely practice criminal law. Stern's practice includes civil litigation, but he has limited experience in trying criminal cases.

In December 1986, Stern was appointed by Judge Scotty P. Krob of the County Court in and for the County of Grand to represent an indigent criminal defendant charged with second degree assault, a class 4 felony, and two misdemeanors. The Colorado Public Defender was unable to represent the defendant because of a conflict of interest.

Shortly thereafter, Stern moved to withdraw, contending that he was incompetent to represent the defendant and was prevented from doing so by C.P.R. DR6-101(A). Stern asserted that he was incompetent because he had not voluntarily represented a criminal defendant for eleven years and had "read no cases, rules, or other materials having to do with criminal law or procedure in the same period of time." He also alleged that undertaking the representation would "constitute legal malpractice and would not constitute effective assistance of counsel as required by the Sixth Amendment to the Constitution of the United States." The county court denied Stern's motion, stating: "Having received the motion it is hereby denied. The Court would refer counsel to those rules regarding association of co-counsel, if necessary."

Stern then commenced an action in district court pursuant to C.R.C.P. 106. In his complaint, he restated his reasons for seeking leave to withdraw and sought an order requiring the county court to grant his motion to withdraw. After considering the answer and affidavit of Judge Krob ¹ submitted by the attorney general and briefs submitted by both parties, the district court dismissed Stern's complaint. In its order, the district court ruled:

Upon review of the pleadings filed herein the plaintiff's request for judgment on the pleadings will be granted and this Court will rule on this matter based on the pleadings and judicial notice of the Plaintiff's considerable competence in those areas of the civil law in which this Court sees the plaintiff on a regular basis....

As noted in the memorandum filed by the Defendant on 2-17-87 the case law has recognized the obligation of the lawyer to educate himself and certainly this plaintiff is very capable of accomplishing that task. Based on the law cited by Defendant, the Plaintiff's complaint is dismissed.

Stern appealed to the court of appeals, but the county court requested that the case be certified to this court pursuant to section 13-4-109, 6A C.R.S. (1987), and C.A.R. 50. On September 9, 1987, we accepted jurisdiction. ²

II.

In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the United States Supreme Court held that the sixth amendment's guarantee of counsel is a fundamental right "made obligatory upon the States by the Fourteenth Amendment," and therefore the fourteenth amendment requires appointment of counsel for indigent defendants in state court. In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the Court held that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." Id. at 37, 92 S.Ct. at 2012 (footnote omitted). Consequently, an attorney must be provided to represent indigent defendants accused of crimes if imprisonment is to be imposed.

In Colorado, the state public defender is charged with the responsibility of representing indigent defendants. When the public defender cannot represent an indigent defendant because of a conflict of interest, the burden of representation must be placed elsewhere. In Grand County, the county court has placed this burden on the private bar.

A trial court's power to appoint counsel to represent an indigent defendant "can not be questioned. Attorneys are officers of the court, and are bound to render service when required by such an appointment." Powell v. Alabama, 287 U.S. 45, 73, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932). "The professional obligation to respond to the call of the court is an incident of the privilege to practice law, and does not offend constitutional commands." Daines v. Markoff, 92 Nev. 582, 555 P.2d 490, 493 (1976); see also Branch v. Cole, 686 F.2d 264, 266-67 (5th Cir.1982); State ex rel. Wolff v. Ruddy, 617 S.W.2d 64, 65 (Mo.1981); Smith v. State, 118 N.H. 764, 394 A.2d 834, 837 (1978).

The Ethical Considerations of the Code of Professional Responsibility, which represent the objectives toward which an attorney should strive, describe the responsibility of the profession to the community:

Historically, the need for legal services of those unable to pay reasonable fees has been met in part by lawyers who donated their services or accepted court appointments on behalf of such individuals. The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer....

C.P.R. EC2-25.

The American Bar Association Standards for Criminal Justice (Standards) have offered a solution to the problem of finding counsel to represent indigent criminal defendants. The Standards suggest that "[t]he legal representation plan for each jurisdiction should provide for the services of a full-time defender organization and coordinated assigned-counsel system involving substantial participation of the private bar." Standards for Criminal Justice § 5-1.2 (1986).

According to the Standards, the purposes of a "mixed" system include the following: the contribution of private attorneys to the knowledge of public defenders; the existence of a "safety valve" that prevents the caseload pressures on each group from becoming overly burdensome; the assurance that private attorneys will have a continued interest in the welfare of the criminal justice system; and the fact that private attorneys are "essential if full-time defenders are to avoid conflicts of interest in representing codefendants." Standards for Criminal Justice § 5-1.2 commentary at 10 (1986). Although the responsibility for providing "legal representation is shared by the bar with society as a whole," "the bar should play a major role in ensuring the provision of legal representation." Standards for Criminal Justice § 5-1.1 commentary at 7 (1986).

The Standards also recommend a standard for an attorney's eligibility to serve as appointed counsel:

Assignments should be distributed as widely as possible among the qualified members of the bar. Every lawyer licensed to practice law in the jurisdiction, experienced and active in trial practice, and familiar with the practice and procedure of the criminal courts should be included in the roster of attorneys from which assignments are made.

Standards for Criminal Justice § 5-2.2 (1986). The comments to this standard provide:

[T]he standard rejects the notion that every member of the bar admitted to practice in a jurisdiction should be required to provide representation. The practice of criminal law has become highly specialized in recent years, and only lawyers experienced in trial practice, with an interest in and knowledge of criminal law and procedure, can properly be expected to serve as assigned counsel. While it is imperative that assigned counsel possess advocacy skills so that prompt and wise reactions to the exigencies of a trial may be expected, this alone is not deemed sufficient. There must also be familiarity with the practice and procedure of the criminal courts and knowledge in the art of criminal defense.

It is critical, however, that the assigned-counsel system be administered in a manner that attracts participation from the largest possible cross-section of members of the bar and affords opportunities for inexperienced lawyers to become qualified for assigned cases. Accordingly, those responsible for administering assigned-counsel programs should continuously canvass the bar to make certain that all who display a willingness to serve are permitted to do so.... Where interested attorneys lack sufficient experience and skill in criminal defense, there are a variety of procedures that can help them qualify for assigned cases.

Standards for Criminal Justice § 5-2.2 commentary at 27-28 (1986) (footnotes omitted).

Finally, with respect to the function of defense counsel, the Standards have described the "Trial lawyer's duty to administration of justice" as follows:

(a) The bar should encourage through every available means the widest possible participation in the defense of...