Monday, December 18, 2006

professions is not for the personal advantage of its members but rather for the protection of the public.[155]

Court Appointment of Lawyers (2002)

© A. Hawkins 2002

Part 1

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The Nature of this course
Court appointed counsel have long existed in American jurisprudence. Counsel are appointed in a variety of civil, criminal, and quasi-criminal cases. Appointments are important to the clients, the appointed lawyers, society, and lawyers who care about the legal system. Yet, little attention is given to the historical, philosophical, ethical, and practical issues raised by appointments. This is the first of many courses that will explore these issues. This course examines leading American cases that examine the basis role of the lawyer and court. The lawyer’s ethical duties, the court’s duties, the constitutional imperatives, and practical economic and geographic issues are intertwined in the cases and discussion. Myths that are believed by some of the American bench and bar are examined and found to be . . . myths.

Most issues in this course apply to both civil and criminal appointments in any American court. Most appointments in this course arise from criminal cases, but one is an appointment to represent a plaintiff in a medical malpractice case that may leave you in stitches. Of course, the laws, ethical rules, and case law vary from jurisdiction to jurisdiction. These cases are all from the last half of the 20th Century. The issues retain currency, but some authority cited in the cases has been overturned. For example, Arkansas has reversed the positions cited by the courts, and has adopted the modern view.[1]

This course is not a course that details current law. Rather, it provides the historical, philosophical, and ethical background that is essential to understanding, developing, and criticizing the law in any jurisdiction. For example, in 2001 Texas enacted a new law changing Texas law regarding appointed counsel in criminal cases. The new law will will require courts, lawyers, and county commissioners courts throughout Texas to revise the criminal defense appointment process. has a separate course on that law. Before Texas lawyers, judges, commissioners, and citizens, consider the details of that law and the choices that must be made, the material in this course should be mastered. Too often, the details that must be decided are considered without a legal, ethical, philosophical and historical foundation. The result is often a dysfunctional, improper, and unconstitutional system. In Texas, and in other states, it is past time to deal with these issues properly.

This course is appropriate for beginning lawyers, supreme court justices, and criminal law experts, as well as trial and appellate judges who preside over civil, criminal, or quasi-criminal trial or appellate cases, those who create rules and regulations related to court appointments, and even academics and influential citizens. It is appropriate for legislators, governors, and county commissioners who make or influence governmental laws, regulations and policy. Leaders of the organized bar, regardless of their field of practice should take this course.

The Process

1. Study this text.

2. When you finish this text, go to to observe the discussion. There, you may choose to ask questions or make comments, or you may choose to just observe any discussion posted by others.

3. Keep track of your actual study hours and dates. Take breaks when you like. After you complete your study, you certify your actual study hours at and you choose to whether to pay by check or credit card.

4. provides a printable certificate of your attendance with the course name, course number, and the CLE credit hours you earned. If you are in the Texas bar, we report your credit to the State Bar of Texas. If you are in another bar and need something else, let us know.

If you read this course online, your browser will probably let you click on a footnote number to go to the footnote and click on the number in the footnote to return to the text. Some browsers will show the footnote if you hold your curser over the footnote number without clicking If you print the text, you may wish to staple the footnotes separately so you may easily refer to them. They are at the end because of technicalities of the internet. This is a Microsoft Word document displayed as a web page. You may copy it into a word processor to print it if you like. If you have any problems, let us know.

There are three kinds of footnotes.

1. Footnotes by the court retain the court’s original number. Our footnote is a footnote to that number.

2. Footnotes that move citations to the footnotes are intended to make the material more readable. The footnote will have the court’s citations.

3. Footnotes by the author contain commentary.

Table of Cases

Hernandez v. State 726 S.W.2d 53 (Tex.Crim.App. banc 1986)

United States v. Wendy 575 F.2d 1025 (2d Cir. 1978)

Gasen v. Ohio 48 Ohio App.2d 191, 2 O.O.3d 156, 356 N.E.2d 505 (1976)

Zarabia v. Bradshaw 912 P.2d 5 185 Ariz. 1, 64 USLW 2 595 (Ariz. Banc 1996)

State v. Green 470 S.W.2d 571 (Mo.banc 1971) (En Banc)

In State ex rel. Wolff v. Ruddy, 617 S.W.2d 64 (Mo. banc 1981), cert. denied, 454 U.S. 1142, 102 S.Ct. 1000, 71 L.Ed.2d 293 (1982)

State v. Roper 688 S.W.2d 757 52 A.L.R.4th 1031, 53 USLW 2521 (Mo. banc 1985)

Stephan v. Smith 747 P.2d 816 (Kan. 1987)

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In the 1930’s, while the band played on, the Scottsdale Boys and a lying whore gave birth to the right to effective counsel, not mere counsel.

Hernandez v. State 726 S.W.2d 53 (Tex.Crim.App. banc 1986)

Justice Teague tells a story that every lawyer, judge, and citizen should know. Perhaps every lawyer and judge should reread this tragic story every few years so it remains in our minds and hearts when we consider the American criminal court system. The case in which the opinion is issued is beyond the scope of this course, so only this excerpt from Justice Teague’s opinion is included.

Justice Teague, concurring and dissenting

“The facts that gave rise to the Supreme Court decision of Powell v. Alabama made it the ideal case for the Supreme Court to rule on such an important issue in our criminal jurisprudence. Eight of the nine defendants in that cause received the death penalty. After conviction, the case itself received an enormous amount of nationwide publicity, which in part was caused by a ‘fight’ between the International Labor Defense of the Communist Party and the N.A.A.C.P., over which group would furnish legal representation for the defendants, which itself is rather interesting when one considers the fact that it appears that no lawyer really wanted to represent the defendants at their trials.

“The incident that gave rise to a long series of trials and appeals of the ‘Scottsboro Boys’ began on March 25, 1931, when the police arrested in Paint Rock, Alabama nine young black males, one of whom was 13 years of age and another who was only sixteen years of age, for the rape of a white female. The rape allegedly occurred on a ‘fast’ freight train traveling between Chattanooga, Tennessee and Huntsville, Alabama. The train was stopped at Paint Rock by a deputy sheriff and a posse comitatus. The defendants stood trial in nearby Scottsboro, Alabama; thus, the name ‘Scottsboro Boys.’ None of the defendants were residents of the State of Alabama. It was later established that the victim was a well-known prostitute apparently traveling on the train with a ‘trick,’ and that she had fabricated her story that she had been raped to cover up the fact that she was illegally crossing state lines. Because the attitude of the community of Scottsboro, where the defendants were tried, was one of great hostility, to prevent a lynching the National Guard was called out. The National Guardsmen guarded the defendants, who were housed in Gadsden, Alabama during the pretrial and trial proceedings, as well as guarding the courthouse and the courthouse grounds located in Scottsboro, at every stage of the proceedings.[2]

“Six days later, on March 31st, the defendants were indicted and arraigned. The trial judge later stated that at arraignment he had appointed all the members of the local bar for the purpose of arraigning the defendants. He also stated that he anticipated that the members of the bar would continue to help the defendants if no counsel appeared at the defendants’ trials. On April 6th, the trials commenced, after the State's motion for severance was granted. Before the trials commenced, the trial judge engaged in a long colloquy with a lawyer from the State of Tennessee, who was not a member of the Alabama bar, to see whether he would appear as counsel for the defendants. The Tennessee lawyer stated that he had come ‘as a friend of the people who are interested and not as paid counsel’ and that he was not familiar with Alabama procedure nor had he had a chance to prepare for the cases. He eventually took part in the trials in the capacity of an amicus curiae. A local lawyer volunteered to help the Tennessee lawyer. Another local lawyer, who had said he could not appear as counsel, but was willing to assist, suddenly became lead counsel. He and the Tennessee lawyer were assisted by another local lawyer who the judge apparently drafted into service, sua sponte. The trials then began. The defendants were tried in three separate groups, but apparently before three different juries sitting at the same time. The trials, which were attended by some eight to ten thousand persons, lasted only one day. A parade took place during the time the trials were occurring. The parade, complete with a band, was sponsored by The Ford Motor Company. When verdicts in the Weems and Norris’ case were returned, the band played the tune ‘There’ll Be A Hot Time In The Old Town Tonight.’ There was much applause from the spectators who were watching the parade.[3]

“As noted, eight of the defendants were convicted and given the death penalty. The jury which heard the thirteen-year-old's case was unable to reach a verdict. The prosecutor had asked that jury to assess the thirteen-year-old a life sentence; however, seven of the twelve jurors wanted to impose the death penalty. It appears that this disagreement over what punishment to assess is what caused the jury in that case not to be able to reach a verdict.

“On March 24, 1932, the Supreme Court of Alabama, in Patterson v. State; Powell et al. v. State;[4] Weems et al. v. State,[5] affirmed all but the conviction of Williams, the sixteen year old, which it reversed because it held that Williams, a juvenile, should not have been tried as an adult. Only Chief Justice Anderson of the Alabama Supreme Court dissented. He believed that under the circumstances the defendants had been tried too quickly. In Powell et al. v. State, the majority implicitly answered Judge Anderson's belief in these words: ‘The appellants complain of the speed of the trial. There is no merit in the complaint. If there was more speed, and less of delay in the administration of the criminal laws of the land, life and property would be infinitely safer, and greater respect would the criminally inclined have for the law.’[6]

“Analogizing to the trial of Czolgosz, the assassin who shot former President McKinley in Buffalo, New York on September 6, 1901, the majority found support for its holding that the trials were not too speedy. The majority pointed out that in that case only two months passed from the date of the shooting until Czolgosz was executed, and ‘This verdict, sentence, and execution were approved by good citizens, north, south, east and west, in fact on both sides of the Atlantic.’[7]


“With this backdrop, I now turn to the Supreme Court decision of Powell v. Alabama.

“On October 10, 1932, almost exactly six months from the day that the Alabama Supreme Court had denied rehearing, the Supreme Court heard oral argument. It decided the case on November 7, 1932, and restricted the issue to be decided to whether the defendants were in substance denied their right to counsel, ‘with the accustomed incidents of consultation and opportunity of preparation of trial.’[8] Thus, the focus of attention was not on what occurred during the trial, but on the actual amount of time allotted the attorneys for trial preparation.[9]

“The Court first held, however, that because the designation of counsel for the defendants was either so indefinite or so close upon the trials that such amounted to a denial of the effective and substantial aid of counsel. It further held that ‘[i]n any event, the [above] circumstance, [the designation of counsel], lends emphasis to the conclusion that during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trials, when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were entitled to such aid during that period as at the trial itself.’[10]

“What appears to have troubled the Court the most was that, even assuming there was a proper designation of counsel on the morning of the trial, such would not have permitted counsel a sufficient period of time to investigate before going to trial. ‘[A] defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense.’[11]

“The Court next decided whether the denial of the assistance of counsel contravened the due process clause of the Fourteenth Amendment to the Federal Constitution. After tracing the historical roots of the right to counsel, the Court concluded that ‘the right to the aid of counsel is ... [a] fundamental right guaranteed by the due process clause of the Fourteenth Amendment ... We think the failure of the trial court to give [the defendants] reasonable time and opportunity to secure counsel was a clear denial of due process ... [I]n a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation of the case.’[12]

“Thus, in order for there to be due process of law, there must be a trial, but, standing alone, without the effective assistance of counsel, the trial would have little meaning or importance. Because the defendants had been denied the effective assistance of counsel, the Supreme Court ordered their convictions reversed.


“Notwithstanding that the question, whether a defendant has a constitutional right to the assistance of counsel in a non-capital case, was not answered in Powell v. Alabama, in 1938, the Supreme Court held in Johnson v. Zerbst,[13] that a defendant in a federal criminal prosecution was entitled to the assistance of counsel and that, if unable to afford counsel, the trial court had an obligation to appoint him an attorney. Thus, the Sixth Amendment barred a conviction and sentence in a Federal criminal trial if the defendant was not represented by counsel and had not competently and intelligently waived his right to counsel. However, State defendants charged with non-capital offenses did not fare as well.

“In Betts v. Brady,[14] the Supreme Court rejected the claim that due process of law required the assistance of counsel in state proceedings as broad as that provided in the federal courts by the Sixth Amendment. "[T]he due process clause of the Fourteenth Amendment does not incorporate, as such, the specific guarantees found in the Sixth Amendment."[15] Thereafter, whether counsel was required in a non-capital felony case was decided on a case by case approach. Counsel was required to be appointed only when the particular circumstances of the case indicated that the absence of counsel would result in a lack of fundamental fairness.

“In Uveges v. Pennsylvania,[16] the question, whether counsel should be appointed, was framed as follows: ‘Whether the gravity of the crime and other factors--such as the age and education of the defendant, the conduct of the court or prosecuting officials, and the complicated nature of the offense charged and the possible defenses thereto--render criminal proceedings without counsel so apt to result in injustice as to be fundamentally unfair?’[17]

“In Gideon v. Wainwright,[18] the Supreme Court put to rest the above distinctions by overruling Betts v. Brady and held that the Sixth Amendment right to counsel was applicable to the States through the due process clause of the Fourteenth Amendment. Thus, the appointment of counsel was required in a state felony prosecution, as well as in a Federal felony prosecution, when the defendant could not afford to employ an attorney.[19]

“Gideon v. Wainwright, was expanded in Argersinger v. Hamlin[20] to misdemeanors where the punishment exceeded six months. In Scott v. Illinois,[21] the Court held that where there was to be no confinement, the right to counsel did not attach. But in Baldasar v. Illinois,[22] the Supreme Court held that an uncounseled misdemeanor conviction without a jail sentence could not be used to convert a subsequent misdemeanor to a felony offense that carried a prison term as punishment.”

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Today, there is an acknowledged constitutional right to counsel, and appointed counsel for indigents, if there may be any jail sentence.[23]

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Powell v. Alabama rejected the notion that representation by any counsel at trial is sufficient to meet the constitutional requirement. The defendant’s constitutional right to counsel is the right to effective counsel. That is the view from the defendant’s perspective. For the view from the lawyer’s perspective we examine Wendy, Gasen, Zarabia, Green, Wolff, Roper, and Stephen. In the process we will see how several courts view the relationship of attorney and court, and the constitutional issues of due process, compensation for property, equal protection, and involuntary servitude. The legal and disciplinary obligations of lawyers are examined and the notion of the lawyer as an “officer of the court” is revealed as mythology.

United States v. Wendy 575 F.2d 1025 (2d Cir. 1978)

“Though a member of the Bar of the Southern District, appellant Howard Wendy is not a criminal trial lawyer. Rather, he is a tax lawyer and, at the time of the purported contempt, was a partner in the firm of Kassner & Detsky. In connection with the Harris case, a criminal tax evasion indictment, Wendy was present at Harris's July 8, 1976, arraignment. He subsequently filed a notice of appearance form which included his own signature and the name and address of the Kassner firm. On August 18, September 7, September 21, and October 12, 1976, Wendy appeared before Judge Goettel in connection with preliminary matters. At the September 21, 1976, conference, the Speedy Trial deadline of December 29, 1976, was duly noted. And on October 12 the district judge declared, with the agreement of both Government counsel and Mr. Wendy: "I will commence the trial on December 13th."

“On December 13, in answer to the judge's question whether the defendant was ready to proceed, Wendy replied in the negative and explained:

I have never tried a case. My background is tax and accounting, and I am assisting Mr. Kassner. I have no experience as a trial attorney, I have never tried a tax case, and I don't feel competent to try this tax case. 1[24]

“The judge reminded him that he had appeared personally and recalled "the recent Second Circuit case[25] in which the attorney was assessed fines of $500 a day for doing precisely what Kassner is attempting to do here, namely, on the last working day before trial announc(ing that) he was engaged in a state proceeding and would not be prepared to go ahead until some later date." 2[26] The judge then warned that ‘if this case is delayed, it is going to be at the rate of $500 a day fine against Mr. Kassner.’

“Mr. Wendy stated that he had intended to enter an appearance on behalf of the firm, not himself, and that if he signed the paper in his name it was inadvertent. He then explained that Kassner's absence was occasioned by slow proceedings in a state court action.3[27] The Assistant United States Attorney said that he first learned of Kassner's state court involvement on the previous Thursday, December 9. The judge added that he had not heard of Kassner's conflict until Friday, December 10, and that he had ‘relayed the message back that a continuance would not be granted, and if counsel was actually unprepared to proceed, there would be fines levied under the authority of the Sutter case, and that is where we stand.’4[28] The judge then asked Wendy if he wished to proceed. When Wendy replied that he preferred ‘not to go ahead,’ the court for the first time indicated that the $500 fine would be assessed ‘against (Wendy) personally as attorney of record.’ Some discussion of the Speedy Trial Act followed. The court then asked again whether Wendy was prepared to try the case and, upon the latter's negative answer, declared:

All right, be back here tomorrow morning. We will go through the same procedure again, and I intend to find you in contempt and assess fines against you of $500 for each day you are unprepared to proceed.

“On the following day, December 14, Wendy acknowledged that the defendant was not ready and applied for an adjournment. He attempted to distinguish Sutter on the basis that Sutter took on the state court case three weeks before he was scheduled to start trial in federal court while Kassner had accepted the state court case a year and a half before. Wendy also pointed out that ‘the firm should certainly be the one, and I was never intended to be the attorney of record . . . .’ Discussion of a continuance transpired after which Wendy presented the judge with a copy of a petition to the court of appeals for a writ of mandamus. The judge read the papers and commented:

The papers imply that Mr. Kassner is being threatened with contempt because he is not in two courts at once.

It is not Mr. Kassner who is in contempt, Mr. Wendy, it is you who are in contempt.

“The court also inquired of Wendy why he was not qualified to try a case in view of his admission to the bar. Wendy replied that this was ‘not a civil case and not one that I feel I should cut my teeth on . . . .’ 5[29] The court then ascertained that Wendy was not prepared to proceed by giving him a choice between proceeding or ‘being held in contempt for being unable to proceed at this time . . . .’ When Wendy again refused to try the case, the court held him ‘in contempt and . . . fin(ed) him an additional $500.’ 6[30] When Wendy requested the opportunity to come before the district court in the event his petition in the court of appeals was denied, the judge responded: ‘You then have the opportunity because you are coming back tomorrow morning, and every morning until the Court of Appeals takes some action.’7[31] Wendy reiterated that it was Kassner, not he, who had been retained in the case, and that Wendy's signing of the appearance was through mere inadvertence.

“The pas de deux rehearsed on December 13 and 14 was played again for the third and last time on the following day, December 15. Wendy repeated that the defendant was not ready to begin the trial.8[32] The court once more refused to accept Kassner’s absence as Wendy’s ‘excuse’ and found appellant in contempt, fining him an additional $500. At this point the district judge said that he would not impose any more fines,[33] because he could not commence the trial on December 16 even if Wendy and Kassner were ready.9[34]

“Several days after the third performance of the contempt scenario terminated, Judge Goettel referred his finding of ‘contempt against an attorney’ to the Reassignment Committee of the Southern District for assignment to another judge. 10[35] In setting forth the facts, the judge stated that he considered the action taken ‘to have (been) a civil contempt, although an argument can be made that it was criminal and required compliance with Rule 42(b).’ 11[36] “What we are dealing with, then, are in effect three citations of civil contempt against an attorney for his refusal to proceed to trial 12[37] in a felony case on the basis that the intended trial counsel was otherwise engaged, that he himself was insufficiently experienced to try the case, and that entry of his own name on the notice of appearance had been inadvertent. We are not dealing with a criminal contempt, 13[38] [39] there being no alleged violation of 18 U.S.C. § 401; 14[40] nor do we have a governing local rule such as was involved in In re Sutter; 15[41] and the fines were not imposed under 28 U.S.C. § 1927.[42] 16[43]

“Contempt by an attorney is always a serious matter. While a simple rebuke or more serious censure by the court might not have the same effect as in the more tightly-knit Bar of England, 17[44] the more serious exercise of the contempt power is awesome in its implications. A citation is likely to afflict the contemnor with a ‘stigma of antisocial conduct.’[45] For a lawyer seeking admission to other bars or to practice before federal agencies, a citation might have considerable economic consequences. The appellation of ‘civil’ rather than ‘criminal’ contempt hardly alleviates the harm. Thus, it behooves the court, in the first instance or on appeal, to make certain that an order of the court is violated before a citation issues.

“We fail to find such an order on December 13, 1976. True, the trial was scheduled for that day, but the court might well have granted the continuance sought by Kassner and Wendy. The judge on that day erroneously thought that he was proceeding on the authority of the Sutter case.[46] . He also first spoke of a $500 a day ‘fine against Mr. Kassner,’ before he stated to Wendy that it would be assessed against him personally as attorney of record. But the December 13 transcript does not reveal an order to Wendy either to proceed to trial that day or to be held in contempt. Accordingly, the judgment as to December 13 must be reversed.

“The following two days rest on a different footing. On December 13 the court told appellant to return the next morning at which time "(w)e will go through the same procedure again. . . . (A)nd I intend to find you in contempt and assess fines against you of $500 for each day you are unprepared to proceed." Assuming that this statement was an implicit order to proceed, we conclude that a civil contempt citation for Wendy's election not to proceed was inappropriate.

“A long recognized defense to a civil contempt citation is the cited individual's inability to comply with the court's order.[47] Technically speaking, Wendy may have had the ability to comply with the court's order in that, as a member of the bar, he was legally authorized to try cases. 18[48] But realistically, Wendy was incapable of compliance. It is uncontroverted that at the time of the contempt citations, Wendy's expertise was in the area of tax and accounting. He had never before tried a case, civil or criminal, state or federal. He was hardly qualified, therefore, to try a felony tax carrying a potential five-year prison term. The client, whose liberty was at stake, 19[49] certainly did not want Wendy to try the case. 20 [50] To be ordered either to try a case which he was obviously unqualified to do 21[51] or to be held in contempt was thus a Hobson's choice. 22[52] That is to say, Wendy did not, in the old phrase, ‘carry the keys of (his) prison.’[53] He could not be held in contempt because he did not have the present ability to comply with the court's order in any meaningful sense. 23[54]

“We do not underestimate the important duties of counsel to the court, especially since the Speedy Trial Act has made calendar control even more difficult than it was previously. We agree entirely with the district court that Wendy neglected his duty timely to inform the court that Kassner was to be trial counsel. We do not condone his conduct in this regard and, as we have said, do not reach the question whether he could have been fined if the Southern District had in effect a rule like the Eastern District's Rule 8(b) discussed in Sutter. We hold only that a contempt citation was improper under the circumstances here.

“Judgment reversed.

The most important statement in Wendy may be contained in the following footnote by the court.[55]

‘Wendy’s situation was perhaps even more complicated than the simple dilemma between risking Harris’s freedom and suffering a contempt citation. Conceivably, trying a case which he knew he was unqualified to do might have resulted in disciplinary proceedings. Canon 6 of the ABA's Code of Professional Responsibility requires a lawyer to ‘represent a client competently.’ Disciplinary Rule 6-101(A)(1) admonishes a lawyer not to ‘(h)andle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.’

* * * * *

The Second Circuit is one of the most influential circuits with its base in New York. It recognizes the simple truth that Wendy was not competant to try the criminal case. It further recognizes two prongs of the issue. One prong is that the defendant needed, wanted, and was entitled to a criminal trial lawyer to represent him and that representation by Wendy would not satisfy his right to counsel The other prong is that the disciplinary rules of professional conduct prohibited Wendy from trying the case. Wendy simply had no right, authority, or privilege to try the case for the defendant. Although Wendy had a law license that seemed to give him the right to do so, he was bound by the disciplinary rules which prohibited him from doing so. The court could not hold Wendy in contempt for refusing to act in a manner which would have violated the disciplinary rules. Since Wendy was ethically prohibited from trying the case alone, he could not do so. He could not comply with an order to do so. He could not be in contempt since he could not comply with the order.

This analysis is simple, and simply correct. Any judge and any court should know it. Unfortunately, some don’t. Another court that did recognize this simple truth is an Ohio court of appeals, which faced a similar situation in Gasen.

Gasen v. Ohio 48 Ohio App.2d 191, 2 O.O.3d 156, 356 N.E.2d 505 (1976)

“At 10:31 a. m. on August 1, 1975, a judge of the Hamilton County Municipal Court called the case of Marjorie and William Stovall for a preliminary hearing on a felony charge. The Stovalls were, according to the record, represented by attorneys from the Public Defenders’ office who were not, however, present in court when the case was called.

“As a result of such attorneys being absent, the judge asked if the city prosecutor could ‘* * * dig up a public defender?’

“Shortly thereafter, Richard Gasen, a public defender and an appellant herein, although not the attorney of record for the Stovalls, entered the courtroom and was summarily appointed by the court to represent the Stovalls. Gasen declined to accept such appointment, objecting on the grounds that the Stovalls were already represented by other attorneys and that he (Gasen) had neither a file regarding the case, nor an opportunity to confer with the Stovalls. Gasen further stated that his intervention at that juncture would, in effect, deprive the Stovalls of their Sixth Amendment right to effective representation of counsel.

“The trial court rejected Gasen's objections and ordered him to proceed with cross-examination, prompting Gasen to again refuse. At 10:40 a. m., Peter Rosenwald, an appellant and a public defender, but not an attorney of record with respect to the Stovalls, entered the courtroom, whereupon the court stated:

‘Mr. Rosenwald, you are appointed to defend William Stovall and Mr. Gasen is representing Marjorie Stovall. Just come forward and do the best you can with cross-examination.’

“Both Gasen and Rosenwald refused on the grounds that to do so would constitute violations of the Code of Professional Responsibility and would deny the Stovalls effective representation of counsel. The court again rejected the attorneys’ objections, stating:

‘Now, I want to proceed. I’m appointing each of you. This is not a case where we decide their innocence or guilt. All we're deciding is whether to proceed with prosecution. You don’t have to know anything about the case to cross-examine.’

“Upon their continued refusal to represent the Stovalls, both Gasen and Rosenwald were incarcerated pending a hearing on a charge of contempt for refusal to obey the court’s order. The contempt hearing commenced at 11:43 a. m., each of the appellants making a statement apologizing to the judge, but reiterating their position relative to the Stovalls. The court thereupon found each attorney in contempt of court and sentenced each according to law.

“Gasen and Rosenwald present, respectively, five and six assignments of error for our consideration on these appeals. Although various arguments are made by the appellants in support of their several assignments of error, we have distilled these contentions into a single issue; namely, the judgment is contrary to law. We will therefore apply the arguments presented by the appellants and those advanced by the Cincinnati Bar Association, in its amicus curiae brief, to that solitary issue.

“The argument seeming most germane to us pertains to appellants’ contention that they were held in contempt for refusing to violate the Code of Professional Responsibility. Canon 6 of the Code provides, in EC 6-1, that:

‘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.’

“EC 2-30 provides in pertinent part that:

‘Employment should not be accepted by a lawyer when he is unable to render competent service * * *. If a lawyer knows a client has previously obtained counsel, he should not accept employment in the matter unless the other counsel approves or withdraws, or the client terminates the prior employment.’

“Clearly, the ethics of the legal profession demand that any attorney, private or public, decline to represent a party when such attorney is unable, for valid reasons, to fully and adequately prepare such party's case, or when such party is already represented by competent counsel. Failure of an attorney to decline to perform such representation may result in disciplinary measures being taken against him. DR 6-101.

“In the cases at bar, both the appellants, the court, and the prosecutor were aware that the Stovalls were already represented by staff members from the Public Defender’s office. Such prior representation had not terminated, nor had original counsel formally approved of permitting Messrs. Gasen and Rosenwald to intervene on their behalf. Moreover, the record is replete with assertions by the appellants that they were utterly unprepared to offer effective representation to the Stovalls.

“It cannot be gainsaid that where, as here, a court summarily appoints counsel to represent an indigent defendant who is already represented by competent counsel, and where such substitute counsel is afforded neither information relative to the charges against the defendant, nor given the opportunity to confer with the defendant, the court has forced upon the interim counsel the alternative of rendering ineffective assistance of counsel, conceivably waiving or overlooking the accused's possible defenses, or being held in contempt of court for failure to perform such representation. The court's assertion to appellants that 'you'll be excused of any problems' would inevitably be meaningless in a later appellate proceeding, for by the time such cause reached an appeal on the merits, defects in prior preliminary proceedings would arguably have been waived and would no longer be justiciable issues upon review. Aside from the questions raised by the nature of a preliminary hearing, no attorney may be a party to and acquiesce in an illegal order of the court and then revive and raise such illegal order as error on appeal. The problem herein is thus magnified since only through a refusal by Gasen and Rosenwald to represent the Stovalls could such objection be preserved. The cause sub judice may thus be distinguished from those authorities cited by appellee dealing with instances where the error inherent in attempting to enforce an illegal order may be corrected on appellate review.

“This Court of Appeals, in In re Schott (1968),[56] vacated a contempt conviction against a municipal prosecutor on the grounds that the order of the trial court did not harmonize with the mandates of the law as interpreted by a superior court. The prosecutor there refused to comply with an order of the municipal court that he provide a defendant with a bill of particulars, basing such refusal on a case decided by the Court of Appeals for the First Appellate District of Ohio. It was argued in Schott as is argued herein, that the right of due process of law is vested in the defendant and not in counsel. This court stated[57] however, that:

‘We view the instant case not as one broaching a question properly to be decided upon appeal but one bringing before us the personal rights of the petitioner himself. His right to protection from deprivation of his liberty is completely separable from the merits of the case in which the petitioner was acting as solicitor representing the people.’

“In the instant case, therefore, the right of the appellants to due process of law was a personal right, separable from the rights of the Stovalls. Moreover, by refusing to recognize the appellants’ responsibilities and obligations under the Code of Professional Responsibility, which was adopted by the Supreme Court of Ohio in 1970, the trial court, in effect, ignored the dictate of Schott that '* * * the ground, principle, or reason of a decision made by a higher court is binding as authority on the inferior court.’ This court concluded in Schott that an inferior court’ * * * whatever may be its own convictions, must in the discharge of its functions be governed by the settled maxims of law and limit itself as such permit and sanction. An arbitrary refusal to do so is a denial of due process of law.’

“We hold that the trial court erred as a matter of law in refusing to recognize the appellants’ responsibilities under the Code of Professional Responsibility *[58] and conclude accordingly that the finding of contempt rendered below is contrary to law. Such finding being contrary to law, it is the order of this court that the judgment of the Hamilton County Municipal Court be reversed and the appellants discharged herewith.”

* * * * *

Zarabia examines appointments in a range of circumstances, with an estate planner, a civil litigator, a contracting part time criminal defense lawyer giving rise to an important case. The strength of Zarabia is common sense and the understanding that criminal law requires time and expertise, but the Arizona Supreme Court may not be familiar with some of the history and law that was previously developed in Missouri and Kansas cases which are presented later in this course.

Zarabia v. Bradshaw 912 P.2d 5 185 Ariz. 1, 64 USLW 2595 (Ariz. Banc 1996)

“In the fall of 1995, faced with Yuma County's failure to establish a public defender's office and a decline in the number of private attorneys willing and available to represent indigent defendants in the superior court, the presiding judge of the superior court in Yuma County put into effect a new system for providing representation to indigent criminal defendants. Under the new regime, which is still in place, indigent criminal defendants are represented by a mix of attorneys who contract with the Yuma County Superior Court to represent such defendants (contract attorneys) and practitioners appointed from the private bar as a whole.

“The contract attorneys are required to provide services in various types of criminal cases at a specified compensation rate paid from the county’s general fund. The practitioners appointed from the general bar include those who practice criminal law as well as those who do not, and those who have trial experience as well as those who do not. All attorneys appointed are required to accept the cases assigned by the superior court bench. Assignments are made to the contract attorneys in accordance with their contracts; assignments to every other private attorney in the county are made in rotation.

“This petition for special action challenges several aspects of that system. Respondent, Judge Bradshaw, is the Presiding Judge of Yuma County. Petitioners are representatives of most of the affected lawyer and client populations. Lawrence L. Deason and Steven R. Morgan are civil lawyers who have been appointed by Respondent to represent defendants charged with serious felonies. Deason has practiced law for twenty-four years, doing estate planning and similar non-litigation matters. He has no experience in criminal law and has never tried a jury case of any kind. Morgan has minimal experience in criminal representation but currently concentrates on civil transactional work. Both attorneys objected to their appointments on the grounds that they lack the necessary competence to adequately perform their appointed duties and that inordinate professional and financial hardship would result from undertaking the representation. Their requests to decline appointment were rejected by the presiding judge.

“Jesus Manuel Zarabia is a criminal defendant charged with importation of marijuana, a class 2 felony. Considering the state’s allegation of a prior felony conviction, Zarabia faces a potential 18.5-year prison sentence if convicted.[59] Deason was his appointed counsel. In light of his counsel's professed lack of competence, Zarabia asserts that he will receive ineffective assistance of counsel if Deason continues to represent him. Thus, he requests that a competent, experienced lawyer be assigned to represent him.

“Nebra Evans Porter represents indigent defendants as a contract attorney. Believing that her case load exceeded her ability to provide competent representation to all her clients, Porter requested that the superior court withhold further appointments under her contract until she was able to decrease her work load. Without holding a hearing, Respondent denied her request and instead assigned her additional cases.

“Petitioners seek several forms of relief, including orders vacating the appointments of Deason and Morgan, scheduling evidentiary hearings on the issues of competence and excessive case loads, and a declaration that defendants represented by lawyers appointed under the present system are presumably receiving ineffective assistance of counsel. After hearing oral argument on the petition, we accepted jurisdiction. By this opinion and order, we grant partial relief.


A. Appointment of civil practitioners

“The scheme adopted by Respondent appoints attorneys on a ‘rotational basis,’ with apparently little or no individual consideration for matching lawyers possessing particular experience or training with specific cases. The compensation scheme adopted by the court for these conscripted lawyers provides a total of $375 for up to twenty hours' work on a case ($17.50 per hour), and $50 an hour if more than twenty hours are required to complete the representation. For attorneys such as Deason, who believe they are ill-equipped to represent criminal defendants, the court offered the assistance of paid ‘mentors,’ attorneys who specialize in criminal law. These mentors agree to be available for consultation but nothing else.

“1. Competent counsel

“It is axiomatic that our criminal justice system demands that every defendant threatened with a loss of liberty be represented at trial and on appeal by competent counsel.[60] Defendants not able to afford to hire counsel are entitled to have counsel appointed for them.[61] By statute, when a court appoints counsel to represent a criminal defendant, that counsel ‘shall be paid by the county in which the court presides.’[62] By rule, appointment of private lawyers to represent criminal defendants ‘shall be made in a manner fair and equitable to the members of the bar, taking into account the skill likely to be required in handling a particular case.’[63]

“A necessary corollary of these principles is that the attorney appointed must render competent, effective assistance at trial and on appeal.[64] Assigning an attorney incapable, for whatever reason, of providing effective assistance at these stages violates a defendant's constitutional rights.[65] Our code of professional conduct echoes these policies.[66] Inadequate representation at trial and on appeal also violates the public's interest in--and right to--establishing a fair justice system and achieving prompt, final disposition of charges.

“We believe the Yuma County system of appointing private attorneys for indigent defendants offends the requirements of the statute and the rule. First, appointment of lawyers on a random, rotational basis does not take ‘into account the skill likely to be required in handling a particular case.’[67] Respondent does not suggest that there is any individualized matching of lawyer to defendant. Instead, Respondent justifies the appointments by providing mentors. As Respondent describes them, the mentors are available to ‘assist in the answer to questions and to assist you (not do your work for you).’ We do not share Respondent’s optimism that an attorney like Deason, who has no trial or criminal experience, can become reasonably competent to represent a defendant, like Zarabia, charged with a very serious crime, simply by having a mentor with whom to consult as the need may be perceived and the occasion arise. Indeed, one wonders whether even a very able probate and estate planning lawyer will know when or on what issue to seek help and advice.

“2. Compensation

“Yuma County is obligated by A.R.S. § 13-4013 and Rule 6.5(c) to provide appointed counsel and pay such counsel reasonable and equitable compensation. Even a brief analysis of the county’s system reveals that it fails to meet this standard. Morgan normally charges his civil clients $150 an hour. He has calculated his overhead expenses to be approximately $75 per billable hour. If this is correct, and we can certainly take notice that established lawyers have substantial overhead expenses, the compensation schedule for appointed attorneys will pay Morgan only twenty-five to sixty-five percent of his overhead expenses and nothing for his time.

“A compensation scheme that allows lawyers significantly less than their overhead expense is obviously unreasonable, although on this sparse record we refrain from any formal finding on whether the Yuma County fee schedule is unreasonable. Yuma’s payment schedule simply illustrates the inequity of the appointment system. It is impermissible for the presiding judge, in wholesale fashion, to transfer the public's constitutional obligation to pay the financial cost of indigent defense to the county’s private lawyers.

B. Porter's complaint of excessive case load

“On November 1, 1995, Porter, a contract attorney, wrote to Respondent detailing her existing case load and expressing her opinion that she could not ethically accept further appointments until her case load decreased. Without holding a hearing, Respondent rejected Porter's request and continued to assign new cases to her.

“This court established presumptive case load ceilings for criminal defense counsel in State v. Joe U. Smith[68] In that case, we pointed out the ethical obligation of defense counsel to manage their professional responsibilities so as to ensure that they are able to provide adequate representation to every client.

“Although the guidelines expressed in Joe U. Smith are an appropriate standard, Porter does not ask that we determine whether her case load exceeds Joe U. Smith limits. Nor is the record presented to us adequate to that task. It is sufficient for the present to say that Porter has raised colorable questions concerning her ability to provide adequate representation, and her request for a hiatus in appointments should not have been summarily denied.

C. Plea policy

“Petitioners have raised issues concerning the Yuma County Superior Court’s policies concerning stipulations in plea agreements. Supposedly, disallowing such agreements has the effect of increasing the number of cases assigned to the bar. In Espinoza v. Martin, this court disapproved of court policies that allowed rejection of a plea agreement without individualized consideration simply because the agreement contained a stipulated sentence.[69] Because the record is not clear on this issue, we do not reach it. We assume, rather, that all judges will comply with Arizona law in this area.


“For the reasons set forth above, we hold that the practice of rotational appointment of private attorneys adopted by Respondent violates both A.R.S. § 13-4013 and Rule 6.5(c). This conclusion obviates the need to pass on the substantial constitutional issues raised by Petitioners. On a cautionary note, however, nothing we say here should be interpreted as limiting a judge's inherent authority to achieve justice by appointing a particular lawyer to represent a defendant or litigant in a particular case, even if the appointment is pro bono or causes financial hardship to the appointed lawyer. There is a stark distinction, however, in requiring a lawyer to handle one case or a few and in conscripting lawyers to regularly handle all cases regardless of their ability or willingness to do so. We do not believe the court's inherent authority can extend so far. Whatever appointment process a court adopts should reflect the principle that lawyers have the right to refuse to be drafted on a systematic basis and put to work at any price to satisfy a county's obligation to provide counsel to indigent defendants.


“IT IS HEREBY ORDERED that relief is granted as follows:

“1. Morgan's appointment is vacated; Respondent is directed to appoint qualified attorneys to represent Morgan's criminal clients. 1

“2. Respondent shall hold an evidentiary hearing to determine whether Porter must withdraw from existing assignments or can properly accept new appointments.

3. Respondent shall hold an evidentiary hearing for any other appointed private attorney who reasonably asserts that he or she will be unable to provide effective representation to an indigent defendant because of a lack of adequate training or experience or because of currently existing professional commitments.

“4. Respondent shall provide a fair and equitable fee schedule for lawyers appointed from private practice. The fee schedule shall consider all appropriate factors, including the bar’s obligation to serve the public.

“IT IS FURTHER ORDERED that in all other respects, the relief requested by Petitioners is denied.


A footnote by the court explained that the Judge removed Deason while the matter was pending. What it does not say is more interesting. According to one of Deason’s appellate attorneys who spoke about the case with the author of this text, after oral argument an attorney with the attorney general’s office which represented the trial Judge spoke to the judge, told him the likely result of the case, and suggested that Deason be relieved of the appointment. The judge did so.

“On February 1, 1996, this court granted the state’s motion to supplement the record. That supplement indicated that Respondent removed Deason from Zarabia's case and reassigned his case to another attorney. This moots Deason's and Zarabia's claims, but because the matter is capable of repetition, we exercise our discretion to reach the merits.[70] The supplement also noted that after oral argument, Respondent affirmatively apprised all Yuma County superior court judges to comply with Espinoza. Because we did not reach this issue, this information does not affect our disposition.”[71]

Note that the document filed by Deason was a Declination. Deason did not seek to withdraw. Instead, he declined the representation. The author of this text has seen the filed declination and confirms its nature. There is some confusion among lawyers whether declining or withdrawing is the appropriate procedure. The author agrees with Deason that declining is clearly the correct concept. Deason was ethically obligated to decline. He was prohibited from accepting. Accepting and then withdrawing is nonsensical and inappropriate. Declination is required. However, some disagree.

* * * * *

In 1971, Missouri was one of three states without a system of indigent defense and payment for services.[72] In Green, the Missouri court announced an end to that, but left the remedy to the legislature. Skeptics might think that the reason is that the court didn’t want to take the political heat, but were willing to make the legislature do so. The dissent by the Chief Justice is long, thorough, and informative. However, one of the most notable features in all the opinions in this case is the lack of scholarship. The court is aware of an Iowa case and a New Jersey case, and cites a few others without analysis. It is aware of its own Missouri cases. This is typical of state court opinions on these issues. They often have blinders, and look exclusively, or almost exclusively, at their state’s cases. The result is a lack of historical and philosophical context.

State v. Green 470 S.W.2d 571 (Mo.banc 1971) (En Banc)

“These cases involve the question whether counsel appointed to represent defendant indigents charged with crime are entitled to receive compensation for services and reimbursement for out of pocket expenses. In the Green case the charge was felonious escape and in the Coleman case the charge was first degree murder. In each instance the applications for fees and reimbursement were allowed by the trial court, the court in the Green case directing that the sums be taxed as costs against the State and said sums be allowed and approved by the state auditor and treasurer and in the Coleman case that they be taxed as costs and be paid by the State of Missouri. In both cases . . . the State has appealed.

“In 1963, in Gideon v. Wainwright,[73] the United States Supreme Court held that the United States Constitution requires the State of Missouri, and other States, to furnish counsel to an indigent accused of crime. This means, in practical effect, that an indigent accused of crime cannot be prosecuted, convicted, and incarcerated in Missouri unless he is furnished counsel. The lawyers of Missouri, as officers of the Court, have fulfilled this State obligation, without compensation, since we attained statehood, although other persons essential to the administration of criminal justice (e.g. prosecuting attorneys, assistants to the Attorney General, psychiatrists, et al.) have not been asked to furnish services gratuitously. The question is whether the legal profession must continue to bear this burden alone. The question is one for the judicial department[74] and must be decided by this Court[75] We consider the following language from State v. Rush,[76] appropriate:

‘Although as we said above the assignment of counsel without compensation (except in murder cases) has been the rule in this State since 1795, the burden of those assignments has increased vastly. The increase has been not only in the number of assignments, but also in the demand a criminal case makes upon counsel. A criminal case used to be a fairly simple affair. The issue usually was a pure question of fact--did the defendant commit the crime? Today, with rapidly changing concepts relating to sundry matters, such as confessions, search and seizure, joinder of defendants, right to counsel, etc., the defense of criminal charges consumes far more time than when we came to the bar. To this must be added the impact of the right of the indigent, without cost, to appeal, and to press post-conviction proceedings and as well attacks in the federal courts. Further, the total demand will likely increase, for while criminal proceedings now dominate the stage, in the wings are other matters--minor offenses, juvenile delinquency, and civil commitments, areas in which counsel are now furnished but on a selective basis. We are satisfied the burden is more than the profession alone should shoulder, and hence we are compelled to relieve the profession of it.’

“We recognize, of course, that the legislative power of Missouri government[77] is vested in the General Assembly,[78] and that the General Assembly has never provided for payment of compensation to Missouri lawyers for their representation of indigents in criminal cases and in cases wherein they seek post-conviction relief.

“Accordingly, believing that a ‘permanent solution to the problem presented is an appropriate subject for the legislature’[79] and believing that the General Assembly should have the opportunity to respond to the position taken today by this Court, we hold and announce:

“(1) that the judgments are reversed and remanded with directions to strike the allowance of attorneys' fees and expenses; and

“(2) that this Court, after September 1, 1972, will not compel the attorneys of Missouri to discharge alone ‘a duty which constitutionally is the burden of the State.’[80] .

Seiler, Judge (concurring in result).

“I concur with the result reached in this case, but I would phrase the final paragraph of the opinion in terms so that it is clear this court and the trial courts can continue, when necessary, to require lawyers to serve as officers of the court, including representation of indigents in criminal cases. Courts cannot operate without lawyers. As Judge Albert Ridge put it years ago,[81] the operation of the courts is really done by ‘Judge and Company.’ The judge and the lawyers together are necessary for the courts to function. The lawyers cannot escape being officers of the court and cannot escape a certain amount of pro bono publico work, which inevitably go with the special and exclusive privilege of being allowed to represent others in the court. Despite the increasing (and I think regrettable) trend toward commercialization of the law profession, 1[82] these obligations remain a part of the practice of law and I believe thoughtful lawyers would not want it otherwise.

“It is impossible at this writing to foresee all the contingencies which may arise in the representation of indigents in criminal cases after September 1, 1972. There are certain to be instances, however, where the courts find it necessary to appoint counsel to represent an indigent, without compensation for time spent or reimbursement for out-of-pocket expenses. I do not take the opinion in today's case to mean the courts are surrendering their power to require a lawyer to perform his obligation as an officer of the court, even if it means doing so without financial reward or reimbursement. It would be a sad day for the courts and the profession if we get to the point where there is no obligation for a lawyer to serve as an officer of the court unless he is first assured of a fee.

“FINCH, Chief Justice (dissenting).

“I would affirm the judgments of the trial courts allowing attorneys' fees and reimbursement of expenses, and hence I must dissent from the principal opinion. I express my reasons in considerable detail because of the great importance I attach to the problem presented.

“The resolution of the ultimate issue of whether these claims were properly allowed involves several questions. The first of these is whether appointment of counsel was required. I agree with the conclusion in the principal opinion that such appointments were necessary under Gideon v. Wainwright.[83] Furthermore, the court was obligated to appoint counsel under the terms of § 545.820, which provides as follows:

'If any person about to be arraigned upon an indictment for a felony be without counsel to conduct his defense, and be unable to employ any, it shall be the duty of the court to assign him counsel, at his request, not exceeding two, who shall have free access to the prisoner at all reasonable hours.'

“Actually, an obligation to furnish counsel to indigent defendants has been recognized by the State of Missouri since its very earliest days. The predecessor of § 545.820 was first enacted in 1825[84] and the statute has been carried forward virtually unchanged to the present time. A similar provision was in force in territorial days.[85] Also, Supreme Court Rule 29.01(a), provides that an accused has the right to appear and defend by counsel, and that if a person charged with the commission of a felony is indigent and unable to employ counsel, the court, on request, has the duty to appoint counsel to represent him. It is crystal clear, therefore, that in the administration of justice in this state the trial court in these two cases had no choice other than to appoint counsel to represent these defendants after the court had determined that they were indigent and unable to employ counsel themselves.

“The second question presented is whether attorneys so appointed are entitled to be compensated for their services and reimbursed for their out-of-pocket expenses if they so request. I agree with the principal opinion that this is a question for the judicial department, but, contrary to that opinion, I would hold that the attorneys were so entitled in these cases.

“Historically, the lawyers of this state have accepted appointment in indigent cases and as a public service have represented defendants therein without compensation. They were officers of the court and when asked to serve, have done so. This system has continued to the present time except in certain local areas where some of the task of defending such cases has been assumed, in part, by local public defender or legal aid offices.

“This practice to which I refer was established in this and other states at a time when the volume of cases requiring appointment of counsel was small and did not result in an unreasonable burden on members of the bar. As the principal opinion recognizes in quoting from State v. Rush[86] that situation has changed drastically. Experience in Missouri, just as in New Jersey, is that the increase in number and complexity of criminal cases in which appointment of counsel to represent an indigent defendant is required is such that a real burden is created. We know, from our own dockets, that the volume of criminal appeals has increased substantially and that a large percentage of these criminal appeals involve indigent defendants for whom attorneys have been appointed to try the case in the circuit court and then to brief and argue the same on appeal. The various briefs herein cite numerous statistics to show the substantial number of appointments in criminal cases. . . . For example, the fiscal note to House Bill No. 41, an Act Relating to public defenders and other appointed counsel for certain persons, introduced in the 74th General Assembly, estimated that on the basis of 1967 figures counsel would be required to defend indigents in almost 16,000 cases each year. 1[87] Some of the cases require a great amount of time. For example, in the case of State v. Nickens, Mo., 403 S.W.2d 582, the attorneys (in addition to preparation time) spent 13 days in actual court hearings on pre-trial motions, one mistrial, and a six-day trial, and then took an appeal in which a 300-page brief was filed. 2[88] The appointed attorneys spent approximately 1200 man hours on the appeal alone. In State v. Willie Curtis,[89] Judge Harry M. James, Circuit Judge of the City of St. Louis, pointed out that in one case the appointed attorneys individually incurred actual out-of-pocket expenses approximating $1500.00, for which they were not reimbursed, and, in addition, spent so much time that their regular law practice suffered considerably as a result. These cases are extremes, but many cases are very time consuming and burdensome. In the Coleman case, Mr. Porter, one of the attorneys, spent 145.25 hours, and Mr. Carmody spent 52.5 hours. In Green Mr. Carmody spent 104 hours.

“The history of handling indigent criminal cases without compensation or reimbursement has led many persons to conclude that because the state has licensed the attorney to practice law, he is required, as an incident of that license, to serve by appointment in indigent cases without compensation or reimbursement of expenses. At the same time, people do not expect others, even if licensed by the state, to furnish services gratis. For example, in the prosecution of criminal cases, the state is represented in the trial court by a prosecuting attorney and on appeal by the attorney general. No one would suggest that their license obligates them to serve in these cases without compensation. The services of doctors, dentists, and phychiatrists, including examinations for the purpose of testifying in the trial, often are required on behalf of persons accused or convicted of crime. These professional people, all licensed for such practice, are not expected to, and do not, as a general proposition, perform these services without compensation. Jails and prisons in which to house those charged with or convicted of offenses are required, and architectural and engineering services are necessary to design and build such facilities. Architects and engineers, although licensed by the state, are not expected to do this as a public service without compensation. Neither is the contractor and building material supplier expected to construct such facilities without compensation. No individuals are asked to feed or clothe them as a public service. The same can be said of many others who provide various kinds of services and goods for indigents accused of crime, or for that matter, for other indigents not involved in criminal proceedings but to whom the state furnishes services. Examples are legion.

“What reason is there, then, that attorneys should be asked or expected to assume this heavy burden and serve without compensation and at their own expense? I perceive none. In that connection, it is of interest to note that in the recent publication of the American Bar Association and the Institute of Judicial Administration entitled ‘Standards Relating to Providing Defense Services,’ written as a part of the American Bar Association Project on Standards for Criminal Justice, the following statement is made, page 34:

‘The legal profession has carried for many years the major part of the burden of representation in criminal cases. In so doing many individual lawyers have suffered personal hardship because of their loyalty to the tradition that no one should lack counsel because of indigency. Many private practitioners have devoted vast amounts of time which required them to neglect their paying clients and other responsibilities in order to perform needed services for indigent defendants. Society cannot justly impose this heavy demand on one segment of the population.'

“Decisions in other states requiring payment of compensation and expenses in representing indigent defendants include Abodeely v. County of Worcester, 352 Mass. 719, 227 N.E.2d 486; People ex rel. Conn v. Randolph, 35 Ill.2d 24, 219 N.E.2d 337; Honore v. Washington State Board of Prison Terms and Paroles, Wash., 466 P.2d 485; State v. Second Judicial District Court, 85 Nev. 241, 453 P.2d 421 (as to reimbursement of expenses).

“The third question presented is whether the courts of Missouri have authority to allow compensation and expenses as costs, as the courts did here. I find no difficulty in concluding that the trial courts did have such power.

“In the first place, § 545.820 made mandatory the appointment of counsel to represent these defendants. While it makes no provision as to compensation to be allowed for the services performed, the courts in appointing attorneys were acting in obedience to express statutory authority and direction. Necessarily, an obligation arises on the part of the state to pay for the services rendered pursuant to that statutory mandate. As the Supreme Court of Iowa said in Hall v. Washington County, (1850)[90] in upholding the right of appointed counsel to recover a reasonable fee for his services under an Iowa statute which directed appointment of counsel for indigent defendants: ‘* * * reasonable compensation to the person who performs that service is a necessary incident, otherwise the arm of the law will be too short to accomplish its designs. * * * But it is enough, here, to say that, whilst the statute requires the court to appoint counsel in a case like this, it is silent on the subject of pay for his services. It leaves that matter to be disposed of upon the principles of the practice of the common law. There certainly is no legal exception as to an attorney, so as to distinguish his case from any other functionary. * * * In this case, the right of an action in the plaintiff does not arise from an express contract; but it is necessarily given by the statute.

“Unless § 545.820 is construed to imply an obligation to pay the attorneys for the services rendered, as above suggested, it, in my judgment, would be unconstitutional. As the principal opinion notes, the regulation of the bar is a matter for the judicial department of government. The questions of what duties the license to practice law entails and what obligations attorneys have as officers of the court are for the judiciary to determine. Therefore, whether lawyers must bear the burden and expense of providing defense services on behalf of the state for indigent defendants is exclusively a subject for the courts to decide. It follows that if § 545.820 is construed as a statute imposing the obligation on lawyers to assume the burden of defending indigent defendants without compensation or reimbursement, it infringes on the judicial function of determining the duties of such attorneys, and is unconstitutional.

“On the other hand, if the statute is construed as implying an obligation on the part of the state to pay for the services rendered to indigent defendants, it does nothing more than establish what amounts to a public defender system for the state by providing for appointment and payment of attorneys in each case instead of establishing a full time public defender's office. So construed, § 545.820 is a valid statute. Actually, the bills for a public defender system introduced in the General Assembly in recent sessions provided for such a system in less populated circuits.

“It is well established that where there are two possible constructions of a statute, under one of which it would be constitutional and under the other unconstitutional, the interpretation resulting in upholding the validity of the law is to be adopted.[91] That rule dictates that § 545.820 be construed as implying the obligation to compensate attorneys appointed pursuant to the statute.

“Secondly (and more importantly), the court had an inherent right to order payment of the attorneys' fees and expenses as court costs irrespective of the existence of § 545.820. This court on numerous occasions has recognized and stated the principle that courts of general jurisdiction have the inherent power to do those things reasonably necessary to preserve their existence and function as a court, including the right to appoint persons needed to perform services essential to the functioning of the court. Such cases include Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977; State ex rel. Gentry v. Becker, 351 Mo. 769, 174 S.W.2d 181; Pogue v. Swink, 365 Mo. 503, 284 S.W.2d 868; State ex inf. Anderson v. St. Louis County, Mo., 421 S.W.2d 249; and State ex rel. Weinstein v. St. Louis County, Mo., 451 S.W.2d 99.

“In the recent Weinstein case, this court en banc unanimously held that the Circuit Court of St. Louis County had the inherent power to appoint and fix the compensation of personnel deemed essential to the proper functioning of the Juvenile Division of that court, provided such personnel and facilities were not supplied to the court by conventional methods. Failure to have those persons would have handicapped the juvenile court and limited its effectiveness in performing its functions, but it would not have had the effect of making the performance of those functions impossible. Failure of the juvenile court to have such personnel would not approach the seriousness of a situation in which counsel would not be available in criminal cases involving indigent defendants. Appointing defense counsel in these cases is an absolute prerequisite to the trial of the cases and the functioning of the entire system of criminal justice. Without them, there would be a complete breakdown in the administration of criminal justice in the State of Missouri, and the situation produced would be chaotic. I cannot imagine a more serious threat to the very existence of the judicial branch of government and the performance of its constitutionally mandated functions.

“In Weinstein[92] this court quoted with approval from Noble County Council v. State ex rel. Fifer[93] as follows:

‘However, the authority of the court to appoint a probation officer, fix his salary and require payment thereof, does not rest upon mere legislative fiat. The court has inherent and constitutional authority to employ necessary personnel with which to perform its inherent and constitutional functions and to fix the salary of such personnel, within reasonable standards, and to require appropriation and payment therefor. The necessity of such authority in the courts is grounded upon the most fundamental and far reaching considerations.

'The preserving of the constitutional framework of our government against encroachment by one branch upon another is one of the prime responsibilities of our courts. Within and dependent upon this structure of constitutional government, our people are blessed by a galaxy of rights, privileges and immunities guaranteed to us by constitutional declaration. * * *

'These mandates necessarily carry with them the right to quarters appropriate to the office and personnel adequate to perform the functions thereof. The right to appoint a necessary staff of personnel necessarily carries with it the right to have such appointees paid a salary commensurate with their responsibilities. The right cannot be made amenable to and/or denied by a county council or the legislature itself. Our courts are the bulwark, the final authority which guarantees to every individual his right to breathe free, to prosper and be secure within the framework of a constitutional government. The arm which holds the scales of justice cannot be shackled or made impotent by either restraint, circumvention or denial by another branch of that government. * * *’

“The foregoing language is very pertinent to the issue presented. Applying it to the situation here presented, I believe it necessarily follows that a court which has the right to direct that quarters be furnished and that essential employees be provided and paid has the inherent power to direct payment of necessary court costs in order to provide counsel constitutionally essential to the functioning of the court in the enforcement of the criminal laws of the state.

“The principal opinion makes no reference to the Weinstein case or other cases dealing with inherent authority. It does not mention or discuss the question of inherent authority. It states simply that the General Assembly has never provided for payment of compensation to Missouri lawyers for representation of indigents in criminal cases, but that a permanent solution ‘is an appropriate subject for the legislature.’ I am unable to ascertain from that language whether the court intends to imply, and thereby hold, that the trial courts lacked inherent authority in the situations here presented to assess attorneys’ fees and expenses as costs, or whether the court is saying simply that it is better to wait and see whether the General Assembly, following the announcement that counsel will not be required ‘to discharge alone a duty which constitutionally is the burden of the State,’ makes some provision by September 1, 1972, to take care of the situation. It also ignores § 545.820 and its effect.

“If the opinion is intended to hold that the courts lacked inherent authority to allow such fees and expenses, then, for the reasons indicated, I strongly disagree. Such a result seems to me necessarily to overrule Weinstein and the other cases announcing the doctrine of inherent authority without saying so. As I have indicated previously, I cannot believe that a court would have authority to direct the employment and payment of personnel in the Juvenile Court of St. Louis County for which money had not been appropriated, but lack authority to provide for counsel to indigent defendants, the absence of which would mean a complete breakdown of the system of criminal justice in Missouri. Stated in reverse, it is my view that if the court does not have the inherent authority to obtain and pay for counsel for indigent defendants, and thereby assure the continued enforcement of the criminal laws of the state, then necessarily it does not have authority to direct the employment and payment of additional personnel in the Juvenile Division of the Circuit Court when funds therefor have not been previously appropriated.

“If the principal opinion does not rely on lack of inherent authority, but rather reverses as a matter of policy (as to whether it was appropriate to allow fees and expenses as costs in these cases), I would say simply that I disagree with that conclusion. It seems to me that past events demonstrate clearly that conventional means for providing and paying counsel for indigent defendants have failed and that the trial courts were justified in directing payment of fees and expenses. Proposed legislation providing for a public defender system for Missouri (including, in some instances, payment of private counsel) was first introduced in the General Assembly in 1967. Similar proposed legislation has been before each successive session of the General Assembly at which the question could be considered. No public defender system and no other method providing for compensating counsel for indigent defendants has been forthcoming. 3[94]

“If the trial courts had inherent authority to allow such court costs or had a right to do so as a result of § 545.820, then their action in making the allowances in these cases would be subject to reversal only if there was an abuse of discretion in making the allowances. No contention is made by the state that the allowances made are unreasonable. The questions raised relate rather to the power of the courts to assess these costs. I find no basis for concluding that the trial courts have abused their discretion, and I find no error committed by the trial courts in these cases. Likewise, I am unable to find in the principal opinion where the majority of the court convicts the trial courts of error in making these assessments.

“The court in both of these cases directed that the allowances be taxed as costs against the state. The Attorney General's brief, while opposing completely the idea that any right to allow compensation exists, suggests that if the court concludes otherwise, any allowance made should be against the county rather than the state. Such a contention was considered by this court in the early case of Kelley et al. v. Andrew County.[95] There counsel had been appointed to defend an indigent accused of a felony. The court was asked to hold that the county was liable to the attorney for the reasonable value of his services. In response to the suggestion that, in the absence of a statute providing for payment for such services, members of the legal profession should serve without charge, the court said:[96] ‘Rejecting, however, the idea of gratuitous service in behalf of the class in question as too fanciful and romantic, and applying to the facts of the case the principles governing contracts express or implied, what were the legal relations and duties existing between the plaintiffs and the county of Andrew, as regards these services?’ The court concluded that it was the state which was prosecuting the defendant to enforce a state statute and that it was the policy of the state to relieve the county of such obligation. Accordingly, it held that the county was not liable.

“I believe that it is logical and proper that the costs of such services be taxed against the state rather than the county. This would appear to be in harmony with the policy of the state as to payment of costs in such felony cases. Sections 550.020 and 550.040, While the allowances here involved are not costs in the technical sense that they have been provided for by statute and denominated therein as costs, they nevertheless are fees incident to the trial of a particular case, and I think they are properly classified as costs and taxed as such. In civil litigation, when a guardian ad litem is appointed, it is customary for the court to allow compensation to the guardian ad litem and to order it paid as costs in that case. It is just as logical to order the state, in these cases, to pay as costs the fees which the courts order taxed in favor of defendants' counsel for the handling of the defense of these cases.

“Costs taxed against the state in criminal cases are appropriated in a lump sum by each session of the General Assembly. House Bill No. 3 of the Third Extra Session of the 74th General Assembly, approved by the Governor on June 22, 1970, appropriated funds for costs in criminal cases during the preceding fiscal period. That appropriation contained this language: ‘For costs in criminal cases, except payment of attorneys’ fees taxed as costs.’ A similar limitation was in the appropriation for the fiscal period commencing July 1, 1971.[97] In my judgment, that limitation against payment for attorneys’ fees taxed as costs is unconstitutional as in violation of the obligation of the state to provide counsel for indigent defendants in felony cases, and also as being an infringement upon the inherent right of the courts to determine and assess costs. I would hold that that limitation in the appropriation act is unconstitutional and hence unenforceable.

“Judge Seiler in his opinion concurring in result expresses the view that at least some lawyers will want to do some pro bono publico work. In that connection, I would point out that affirmance of these judgments does not mean automatic payment in every case, or that lawyers could not perform these duties without compensation. Fees and expenses would be allowed only if requested, and when requested, the amount thereof would be a matter for determination by the trial court, reviewable on appeal. The allowances made in these cases were based on compensation to the attorneys which was less than full compensation which they normally would charge. It was intended to cover overhead and something in addition to prevent substantial loss by the attorneys, as well as to reimburse them for actual out-of-pocket expense. That was as it should be. In such a system, the attorneys in extreme cases involving extensive services and hardship with reference to handling other law business would be entitled to greater allowances, but certainly there would be some cases where the court might conclude that no compensation other than perhaps reimbursement for out-of-pocket expenses should be made. Such a system would permit a reasonable amount of pro bono publico work but still protect the bar from the unreasonable burden with which it is now saddled.

“I strongly believe that these cases should be affirmed. Hopefully, the General Assembly will provide a permanent solution by a statewide public defender system or some other method of providing paid counsel for indigent defendants. If that is not done, we are in real trouble in the field of criminal law enforcement when September 1, 1972, arrives, unless at that time the majority no longer abstain from action and instead exercise the inherent authority which, in my judgment, must and does exist.

* * * * *

Perhaps leaving indigent defense to the legislature wasn’t a very good idea. Ten years after Green, Missouri was in a crisis. The Wolf was at the door.

In State ex rel. Wolff v. Ruddy, 617 S.W.2d 64 (Mo. banc 1981), cert. denied, 454 U.S. 1142, 102 S.Ct. 1000, 71 L.Ed.2d 293 (1982)

“On March 27, 1981, respondent advised relator that, unless prohibited by an appellate court, he would, on or before April 15, 1981, appoint relator to defend Joann Williams, in State of Missouri v. Joann Williams, No. 452742, pendinßg in the Circuit Court of the County of St. Louis. As the last sentence of his order, respondent also stated: ‘Under the present status of the appointed counsel fund, said attorney will not be paid or reimbursed for any of his expenses.’

“On April 17, 1981, this Court entered an order which read in part as follows: "Preliminary rule in prohibition ordered to issue returnable in ten days unless within five days hereof respondent deletes the final sentence from his order of March 27, 1981 and notifies the Clerk of this Court accordingly. * * *." Our preliminary rule in prohibition issued on April 23, 1981.

“In State v. Green,[98] this Court addressed the question of a lawyer gratuitously furnishing legal services to an indigent accused and said:

‘In 1963, in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the United States Supreme Court held that the United States Constitution requires the State of Missouri, and other States, to furnish counsel to an indigent accused of crime. This means, in practical effect, that an indigent accused of crime cannot be prosecuted, convicted, and incarcerated in Missouri unless he is furnished counsel. The lawyers of Missouri, as officers of the Court, have fulfilled this State obligation, without compensation, since we attained statehood, although other persons essential to the administration of criminal justice (e. g. prosecuting attorneys, assistants to the Attorney General, psychiatrists, et al.) have not been asked to furnish services gratuitously. The question is whether the legal profession must continue to bear this burden alone.’

“The Court held in Green that the legal profession need not continue to bear the burden alone. The General Assembly of Missouri responded with enactment of Chapter 600, RSMo 1978. It must be said that its response has been less than resolute:

“(1) In 1972, the General Assembly declared the public policy of Missouri to be that in cases where counsel, other than public defenders, are appointed to represent indigent defendants ‘the reimbursement of expenses and the attorney's fee for services shall be paid by the state from funds appropriated for that purpose.’

“(2) In 1977, the General Assembly declared, with certain stated exceptions, the public policy of Missouri to be that when a plea of not guilty is entered by an accused, his trial ‘shall commence within one hundred eighty days of arraignment.’ The sanction imposed for failure of compliance is possible dismissal of the charge against the accused.

“(3) However, in 1980, the General Assembly provided: ‘Under no circumstances may the expenditures from general revenue for the purposes provided in sections 600.010 to 600.160 exceed the amount, five million dollars, if and when appropriated by the general assembly for such purposes.’

“(4) And, for the fiscal year ending June 30, 1981, the General Assembly appropriated only a total of $3,475,894 for representation of indigent defendants.

“We must recognize that as of the date of this opinion the money appropriated by the General Assembly for the fiscal year ending June 30, 1981, has been spent. The cupboard is bare.

“What are we to do? ‘No money shall be withdrawn from the state treasury except by warrant drawn in accordance with an appropriation made by law * * *.’[99] We are reminded of our limitations by Alexander Hamilton in The Federalist No. 78: ‘The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.’[100] However, we cannot permit the administration of criminal justice in Missouri to grind to a halt.

“In these circumstances, we must turn again to the Bar of Missouri. We do so without apology.

“The inherent nature of the practice of law has been described as follows:

‘The term 'profession,' it should be borne in mind, as a rule is applied to a group of people pursuing a learned art as a common calling in the spirit of public service where economic rewards are definitely an incidental, though under the existing economic conditions undoubtedly a necessary by-product. In this a profession differs radically from any trade or business which looks upon money-making and personal gain as its primary purpose. The lawyer cannot possibly get away from the fact that his is a public task. In all probability the professional relation of a lawyer to his client arose out of status rather than contract. It called, and still calls, for something more than a mere merchant-customer contact. It was, and still is, based on ideas more nearly akin to that of a fiduciary relationship than one which originated from the principle of caveat emptor. The general public has need for a professional man in whom it can repose a particular type of confidence whenever it is faced with some distressing problems, often of a very personal nature. Hence the most important aspect of the practice of law is the fact that it is, and the inherent nature of things demands that it always shall be, a profession.’ [101]

“The premise that practice of law ‘in the spirit of public service’ is a primary consideration is articulated in EC 2-16 of Rule 4 of this Court:

“The legal profession cannot remain a viable force in fulfilling its role in our society unless its members receive adequate compensation for services rendered, and reasonable fees should be charged in appropriate cases to clients able to pay them. Nevertheless, persons unable to pay all or a portion of a reasonable fee should be able to obtain necessary legal services, and lawyers should support and participate in ethical activities designed to achieve that objective.’

“And, the lawyers of Missouri have taken and subscribed, in part, the following oath or affirmation prescribed in Rule 8.11:

‘I do solemnly swear * * *

‘That I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any person's cause for lucre or malice. So help me God."

“The question of lawyer professionalism was addressed in Bates v. State Bar of Arizona[102] wherein the United States Supreme Court held that lawyers' rights to advertise are protected by the First Amendment to the Constitution of the United States and rejected the view that the ‘hustle of the marketplace will adversely affect the profession's service orientation, and irreparably damage the delicate balance between the lawyer's need to earn and his obligation selflessly to serve.’ We hope, of course, that the Court's assessment is accurate.

“At the present time, the Court is becoming inundated with cases similar in nature involving non-payment of fees for the defense of the indigent. They include cases where accused indigents are being deprived of a reasonable defense by reason of lack of available funds necessary to prepare a proper defense for the accused and cases where lawyers are alleging that they are being denied the right to earn a livelihood for their family or in effect are being placed in involuntary servitude contrary to the thirteenth amendment to the United States Constitution. Because of insufficient funding of the Public Defender Program for the defense of indigents, the problem is currently approaching crisis proportion.

“In this background, the Court has concluded that the processing of the voluminous pending and threatened cases concerning representation of the indigent is neither economically desirable for the state nor is it in the best interest of the indigent accused, the legal profession, or the public.

“We believe that the best interests of the state of Missouri and the orderly administration of justice require that we at this time declare and establish temporary guidelines for meeting the problem of defense of the indigent accused. We believe our primary obligation is to the people to insure the continued operation of the criminal justice system, for without it, the peace of the community cannot be attained as the guilty cannot be convicted nor the innocent be acquitted. As a necessary part of this system the accused is entitled to counsel and, where indigent, counsel must be provided. It is our first obligation to secure to the indigent accused all of his constitutional rights and guarantees. We also have an obligation to deal fairly and justly with the members of the legal profession who are subject to our supervision. To accomplish these ends, we direct and order that the following temporary guidelines be followed by the judiciary and the members of the legal profession until the problem of defense of the indigent accused can be resolved in an orderly process by the Executive, Legislative, and Judicial branches of our government.

“1. In this case or any similar case, the respondent circuit judge is admonished by this Court to hold all accused to a high standard of proof of indigency and to make every effort possible to fully verify indigency.

“2. In this and any similar case, the respondent circuit judge should provide relator when requested with an evidentiary hearing as to the propriety of his appointment, taking into consideration his right to earn a livelihood for himself and his family and to be free from involuntary servitude. If respondent judge determines that the appointment will work any undue hardships, he should appoint another attorney. After hearing, we call on all members of the legal profession who may be appointed, to accept appointment and to exert their best efforts in the defense of the indigent accused; and to refuse[103] such service only with recognition that such refusal may be the subject of disciplinary action.

“3. Non-payment to a lawyer for a period in excess of one hundred and twenty days for any prior appointed service may be deemed by the court to be grounds for excusing the lawyer from additional appointment in other cases.

“4. We know of no requirement of either law or professional ethics which requires attorneys to advance personal funds in substantial amounts for the payment of either costs or expenses of the preparation of a proper defense of the indigent accused. If after evidentiary hearing, reasonable and necessary costs ordered advanced by the court are not forthcoming and available for preparation of the proper defense of the indigent within the time required by law for the trial of the accused,[104] or where the court is unable to find and appoint counsel for the indigent accused who can prepare for trial within the time required by law, the court should on proper motion where necessary to protect the constitutional rights of the accused, order discharge of the accused.

“5. Until further order of this Court, employment by government without further evidence of conflict with the interest of the indigent accused, shall not be deemed to be a bar to appointment by the Court to defend an indigent accused.

“6. To assure that this situation shall not become worse and the failure of payment of such services become larger and more intolerable, the Public Defender Commission is requested that from appropriated funds, all approved fees and costs shall be paid in the order certified to and received by the Commission.

“7. The Court will continue to urge the co-equal Executive and Legislative branches of government to each assume its share of responsibility for solution of the problem of defense of the indigent accused, realizing that the Court's action of this date is at best only temporary and stop gap because of the limitations upon our own power to make excessive demands upon those whom we are charged with supervising.

“8. For a reasonable period of time pending the solution of this problem, the members of the legal profession are advised that in its discretion this Court will decline to hear other than the most extraordinary of applications for writs or extraordinary relief. We expect that each member of the legal profession, as he or she has throughout history, to continue to honor the oath ‘That I will never reject, from any consideration personal to myself, the cause of the defenseless or the oppressed...’, with complete confidence that this Court will do all within its power to protect the rights of indigent accused and to implement the public policy set forth in Chapter 600, RSMo that those ordered to defend the indigent accused shall be fairly compensated for their expenses and services.

“For the present, the preliminary rule in prohibition is ordered quashed, without prejudice to reapply for extraordinary relief at any time that it may appear that the indigent accused is being denied a reasonable defense and a fair trial.”

* * * * *

State v. Roper 688 S.W.2d 757 52 A.L.R.4th 1031, 53 USLW 2521 (Mo. banc 1985)

Four years after Wolff, a judge attempted to rope a lawyer into representing an indigent prison inmate in a medical malpractice paper clip stitches case, without compensating the lawyer. The splintered Missouri court benefited from more research than its prior opinion. It was learning from the commentators and academics.

“Relator Stephen C. Scott seeks to prohibit Respondent Judge Ellen S. Roper from appointing him to represent an indigent prison inmate in an action to recover damages for an alleged medical malpractice. Relator challenges the constitutionality of § 514.040, RSMo 1978, purporting to authorize such an appointment and claims that compelled representation violates his rights under the federal and state constitutions. . . .

“The underlying suit, Jack L. Wright v. University of Missouri Medical Center and Doctor ‘John Doe,’[105] was filed pro se on August 25, 1983. The pleading was styled ‘Civil Tort Complaint for Medical Malpractice/Negligence.’ Attached to the pleading was a Motion to Proceed in Forma Pauperis, a Pauper's Affidavit, and a Motion for Appointment of Counsel. The essence of the complaint as set forth in the pleading is that permanent stitches were left in plaintiff's body after surgery by the physician and the hospital. Plaintiff claims $300,000 actual damages and $300,000 punitive damages.

“On August 29, 1983, the Honorable Ellen S. Roper, Judge, entered the following order: ‘Motion to Proceed in forma pauperis is sustained. Petition is ordered filed. Summons is ordered issued. Mid-Missouri Legal Services appointed to represent plaintiff.’ Mid-Missouri Legal Services filed a motion and affidavit for withdrawing as appointed counsel, alleging that their charter prohibited them from accepting fee-generating cases. Respondent permitted their withdrawal and appointed relator to represent plaintiff.

“Relator filed a ‘Motion to Quash Appointment of Counsel for Plaintiff and to Permit Counsel to Withdraw; Alternative Motion For Payment of expenses; and, Request to Hold Adverse Ruling in Abeyance to Permit Filing of Petition For Writ of Prohibition.’ On March 23, 1984, respondent conducted a hearing on these motions. At the hearing, relator testified that the statute under which the court was purportedly exercising its authority was unconstitutional. He further argued that plaintiff's case would require at least $2,500 in expenses in order to proceed. Plaintiff testified that he contacted one attorney in St. Louis, one in Kansas City, and one in Springfield but they would not take his case. He did not remember their names.

“Relator argues, inter alia, that requiring him to represent the plaintiff in the underlying action is an unconstitutional taking of his property without just compensation. He also avers that he cannot be compelled to advance litigation expenses because that would also amount to a taking of property without just compensation. He claims that such compelled representation is a violation of due process and amounts to an involuntary servitude. 1[106] Relator suggests that he was apparently appointed pursuant to § 514.040, RSMo 1978 inasmuch as no other authority for such appointment has been located. The Attorney General, on the other hand, arguing in behalf of respondent, contends that this duty imposed on the individual attorney is a ‘professional obligation to represent an indigent plaintiff as part of his duties as an officer of the court,’ and ‘[a]n applicant for admission to practice law may justly be deemed to be aware of the traditions of the profession which he is joining.’


“Although it is not clear that respondent relied solely upon § 514.040, RSMo 1978 to justify her appointment of relator, we initially address relator's argument that the statute is unconstitutional. The statute provides:

If any court shall, before or after the commencement of any suit pending before it, be satisfied that the plaintiff is a poor person, and unable to prosecute his or her suit, and pay the costs and expenses thereof, such court may, in its discretion, permit him or her to commence and prosecute his or her action as a poor person, and thereupon such poor person shall have all necessary process and proceedings as in other cases, without fees, tax or charge; and the court may assign to such person counsel, who, as well as all other officers of the court, shall perform their duties in such suit without fee or reward; but if judgment is entered for the plaintiff, costs shall be recovered, which shall be collected for the use of the officers of the court.

“This statute was first enacted in 1821, and it was passed against the background of already existing poor laws.[107] For example, the court of common pleas was already empowered to spend county funds for the maintenance of the poor.[108] Counties were saddled with the responsibility of supporting and maintaining their poor. When the legislature passed these laws, they intended to relieve a particular class of persons. For one hundred and seventy years the legislature has retained the classification for persons deemed poor: ‘[A]ged, infirm, lame, blind or sick persons, who are unable to support themselves, and when there are no other persons required by law and able to maintain them, shall be deemed poor persons.’ § 205.590, RSMo 1978. We do not believe that the plaintiff in the underlying suit can bring himself within the definition of the term as used by the legislature when § 514.040 was enacted 2[109] or that the statute authorizes the appointment in this case.


“The more important consideration is whether respondent has the inherent power to compel relator to serve as a plaintiff's counsel in a civil malpractice action without compensation and without provision for litigation expenses. We treat first relator's contention that he cannot be compelled to spend his own funds for litigation, such as for obtaining depositions and securing expert testimony.[110] In State ex rel. Wolff v. Ruddy,[111] this Court, faced with a situation ‘approaching crisis proportion,’ held that ‘[w]e know of no requirement of either law or professional ethics which requires attorneys to advance personal funds in substantial amounts for the payment of either costs or expenses of the preparation of a proper defense of the indigent accused.’[112] . To abandon this rule in a civil suit where the requirement of counsel is less compelling would be illogical and manifestly unjust, and we decline to so hold. While compelled representation without a source for litigation expenses might work a perversion of justice, we nevertheless must address whether the court can compel such representation independent of the issue concerning litigation expenses.


“The precise question of whether the court has the inherent power to appoint and compel counsel to serve without compensation in civil cases has not been resolved in this State. While there is a long history of appointment of counsel in criminal cases, no such similar history exists for civil cases. Appointments in criminal cases can be traced to statehood. Our first constitution authorized the appointment of counsel in certain criminal trials involving slaves.[113] Although this court long ago rejected the idea of gratuitous service as ‘too fanciful and romantic,’[114] in dicta in a later case it was noted that an attorney representing an indigent criminal defendant does so without compensation as an ‘officer of the court.’[115] During this time and until a later opinion by this Court, Missouri attorneys willingly accepted such appointments in the face of a growing hardship imposed on the Bar.[116] As one of the last states to decide the question, we held in 1971 that attorneys would no longer be compelled to render gratuitous service.[117]

“A similar paucity of case law concerning appointments in civil cases exists in other jurisdictions. 3[118] The vast majority of courts considering appointments without compensation do so in the context of a criminal case, and even these decisions contain a diversity of views. Of those courts addressing the issue of uncompensated criminal appointments it would appear that a majority would not require compensation. The ‘claimed majority,’ however, ‘is not nearly so solid or monolithic’ as one might expect.[119] A strong minority of courts adhere to the position that such compelled representation is unjustified and unconstitutional. We believe that it is essential to examine these various decisions, their efficacy, and their application to civil cases such as the one at bar.

“The issue of compelled representation in criminal cases first arose in the context of a suit by the lawyer against a county government to collect a fee having been awarded to him by the trial court. With the exception of Iowa, Indiana and Wisconsin, the majority of courts held that an attorney could not maintain an action against the county unless there was an express statutory authorization for funds. 4[120]

The courts in these early cases were less concerned with the plight of the attorney than with the liability of a governmental body. 5[121] A number of these courts, however, noted that lawyers are officers of the court and thus render their services gratuitously. In Vise v. The County of Hamilton, for example, the court observed that lawyers are officials of the court and ‘[t]he law confers on licensed attorneys rights and privileges, and with them imposes duties and obligations, which must be reciprocally enjoyed and performed.’[122] Generally, when holding that a county was not liable for an attorneys’ services absent legislative authorization, courts often bolstered their argument by suggesting that gratuitous service was an obligation incident to certain privileges accorded an attorney as an officer of the court.

“The doctrine that lawyers are officers of the court and accorded certain privileges is generally attributed to the common law of England. Few courts, however, discussed the doctrine's application in this country. The matter was mentioned in Leigh's Case,[123] where Judge Roane Commented:

It is not necessary, in this case, to consider whether, and in what degree attorneys are considered in this country (as they are in England ) officers of their respective courts; though it is easy to see that an attorney, in this country, not having as many privileges as the English attorneys, in consideration of which, that character is there holden to attach, a difference may probably exist in this country.[124]

“An early Pennsylvania case also illustrates that--while retaining some privileges--attorneys during the colonial period did not claim many of the exalted privileges such as ‘an exemption from arrest, or militia duty.’ Respublica v. Fisher & Mifflin[125] The absence of any such special privileges in Indiana, led the high court of that state to hold that no reciprocal obligation could be imposed on the attorney to render gratuitous service:

“The gratuitous defence of a pauper is placed upon two grounds, viz., as an honorary duty, even as far back as the civil law; and as a statutory requirement. Honorary duties are hardly susceptible of enforcement in a Court of law. Besides, in this state, the profession of the law was never much favored by special pecuniary emoluments, save, some years ago, in the case of docket-fees in certain contingencies. The reciprocal obligations of the profession to the body politic, are slender in proportion. Under our present constitution, it is reduced to where it always should have been, a common level with all other professions and pursuits. Its practitioners have no specific fees taxed by law--no special privileges or odious discriminations in their favor. Every voter who can find business, may practice on such terms as he contracts for. The practitioner, therefore, owes no honorary services to any other citizen, or the public.... The idea of one calling enjoying peculiar privileges, and therefore being more honorable than any other, is not congenial to our institutions. And that any class should be paid for their particular services in empty honors, is an obsolete idea, belonging to another age and to a state of society hostile to liberty and equal rights.

“The legal profession having been thus properly stripped of all its odious distinctions and peculiar emoluments, the public can no longer demand of that class of citizens any gratuitous services which would not be demandable of every other class. To the attorney, his profession is his means of livelihood. His legal knowledge is his capital stock. His professional services are no more at the mercy of the public, as to remuneration, than are the goods of the merchant, or the crops of the farmer, or the wares of the mechanic.

“Webb v. Baird[126] The officer of the court doctrine also arose in other contexts. 6[127]

“The seminal case in the twentieth century, decided in the wake of the United States Supreme Court decisions requiring the appointment of counsel for indigent defendants, is United States v. Dillon.[128] Relying heavily upon the brief of the appellant in that case, the Ninth Circuit held that the obligation to serve indigents on court order without compensation is ‘an ancient and established tradition’ and ‘a condition under which lawyers are licensed to practice as officers of the court ...’[129] The court rejected the argument that compelled service amounts to a taking of property without just compensation:

‘An applicant for admission to practice law may justly be deemed to be aware of the traditions of the profession which he is joining, and to know that one of these traditions is that a lawyer is an officer of the court obligated to represent indigents for little or no compensation upon court order. Thus, the lawyer has consented to, and assumed, this obligation and when he is called upon to fulfill it, he cannot contend that it is a ‘taking of his services.’[130]

“In an appendix to the opinion, the court reprinted appellant's brief detailing the historical foundation for its holding. The party in the brief argued that ‘[r]epresentation of indigents upon court order is an ancient tradition of the legal profession, going as far back as fifteenth-century England and pre-Revolutionary America.’[131] The brief concluded with language that parallels the holding of the court. The impact of the Dillon decision is clear, as subsequent opinions most often cite or quote language from the decision without discussion. 7[132]

“However, a number of these jurisdictions are beginning to question the ever increasing burden on the members of the bar. Their opinions expressly or impliedly suggest that at some time this growing burden may constitute a taking of property.[133] After noting that Dillon had illustrated that lawyers have traditionally been considered ‘officers of the court,’ one court held that it was proper to ask whether the traditional concept had become unfair and unjust and ‘whether the burden has become such that society should no longer expect the Bar to carry it alone.’[134] The court found the argument convincing, but chose to await legislative creation of a proposed state funded defender system rather than change the traditional rule at that time. Other courts have held that the time has arrived, and as a matter of policy relieved the bar of its burden.[135] For example, in State v. Rush, the New Jersey court observed that ‘there is no doubt that it was the professional obligation of the English and the American attorney to accept an assignment to represent an indigent defendant,’ but held that attorneys should not bear this burden alone and ordered compensation in future cases.[136] It might be noted that by the mid-twentieth century most state legislatures had already provided for some compensation.[137]

“In addition to the so-called historic role of attorneys as officers of the court, some decisions appear to rest upon a vague notion that lawyers have a professional obligation to provide gratuitous service upon court order.[138] [139] One court suggests that ‘[t]he high purpose and traditions of the legal profession require that this burden be shouldered by its members.’[140] Another fears the loss of professionalism.[141] Yet another suggests that ‘[t]he profession of law rests upon its commitment to public service and has long been recognized as a profession that requires its membership to engage in pro bono activities.’[142] The Code of Professional Responsibility and the accompanying ethical considerations are often invoked as a source for this professional obligation.[143]

“Unfortunately, the analysis supporting such arguments is ‘fuzzy and unconvincing.’[144] These arguments are flawed from the outset, as they overlook the debate among members of the American Bar Association over whether the Model Code of Professional Responsibility should be altered to require mandatory pro bono service.[145] The participants in this debate acknowledged that no such requirement previously existed in the Code:

Prior to 1969, the Code of Professional Responsibility made no reference to the issues which we are talking about this morning. In the early days of our profession, the code under which we as lawyers operated did not have a provision as to what were our personal or professional responsibilities for pro bono representation. The current code and its ethical considerations under which we are operating does speak to that issue. Characterizing the current code, it is at best an aspirational statement dealing with the issue as to whether or not we have a professional responsibility.[146]

“A proposed mandatory provision was rejected, and the current Model Code only expresses a policy favoring pro bono representation. See Rule 6.1.

“A substantial minority of courts take the position that an attorney may not be appointed to render gratuitous service.[147] For example, ‘[s]ince 1850 Iowa has stood among that strong minority of states (16 out of 34 jurisdictions that have addressed the issue) holding lawyers compelled to represent indigents must receive reasonable compensation.’[148] These courts reason that a lawyer's services are as much his property as a grocer's stock, an electrician's tools, or an individual's home. The mere power of the state to license certain occupations does not justify a taking of property:

In these modern times practitioners of the professions and of many arts, sciences, trades, and businesses are required to be licensed. The Legislature may in the future require the licensing of restaurant operators and grocers as a sanitary police measure. If a law should be enacted requiring every person licensed by the state to render services, or furnish the materials of their business, to paupers gratuitously, much difficulty would be found in justifying a decision holding the law unconstitutional as depriving the green grocer or the restaurant operator of his goods, or as depriving the physician, or the barber, or the plumber, or the electrician, or the mechanical engineer of his services, without compensation, while adhering to a rule that licensed attorneys' services may be taken without compensation.’[149]

“The majority of commentators also appear to reject the reasoning in United States v. Dillon. 8[150] A number of these authors take the position that a lawyer's services should be treated as a property right.[151] Two commentators, for example, aver that ‘[t]he privilege to practice law is a valuable property right. The right to engage in this vocation, or others, need not be predicated upon the relinquishment of constitutional rights.’[152] Some of these authors suggest that, if such an obligation can be said to exist, the duty to render gratuitous service can only be premised on the reasoning that lawyers have a monopoly to practice before the courts. It is argued that ‘the practice of law is a monopoly because it is limited to a select few and because that limitation results in restraints upon the public's use of legal services.’[153]

“The reasons underlying the monopoly argument are fraught with conceptual difficulties. First, no individual is personally denied the opportunity to argue his own cause. Although the complex nature of many legal issues may seem to make the presence of a person trained in law essential, anyone is free to either pursue a career in law or obtain the requisite legal knowledge. This fact has led a noted scholar in this area, Professor Geoffrey Hazard, to dismiss the monopoly argument as ‘absurd.’[154] Second, limiting the persons who can provide services in this and other professions is not for the personal advantage of its members but rather for the protection of the public.[155] Third, the monopoly argument must necessarily rest upon some unstated assumption, otherwise members of all occupations licensed by the state could be compelled to render gratuitous service.[156] Doctors, for example, might then be required to treat patients without receiving a fee.

“We next examine the validity of the officer of the court doctrine. Professor Shapiro explains that ‘[T]o justify coerced, uncompensated legal services on the basis of a firm tradition in England and the United States is to read into that tradition a story that is not there.’[157] Invoking the English tradition without a careful examination of that country's history overlooks the complexity of the history of the English legal profession. 9[158]

“The role of the English barrister most closely resembles today's American trial attorney. Barristers have at no time in English history been treated as officers of the court. 10[159] These lawyers were admitted to practice by the Inns of Court and subject to the control of the Inns of Court.[160] It is doubtful whether barristers could be compelled to represent a party.[161] Some evidence suggests that barristers present in the courtroom might--on the spur of the moment--be appointed to argue a ‘dock brief’ for a criminal defendant upon the ‘tendering to counsel the sum of one guinea[162] without the intervention of a solicitor.’ 11[163] [164]

“Technically, only English ‘attorneys’ were treated as officers of the court.[165] The role of the English ‘attorney’ has no counterpart in this country. Unlike barristers, attorneys ‘were admitted directly by the judges of the court’ and medieval statutes gave the court direct control over these officers.[166] The role of the attorney, as an officer of the court, resembled the role performed by staff members in the court engaged in ministerial duties.[167] The English legal historian Theodore Plucknett suggests that "[t]he barrister now looked upon the attorney as a superior sort of clerk; this was justifiable, for the attorneys were now regarded as technically part of the clerical staff of the courts."[168] Another commentator explains:

‘attorneys were treated as officers of the court because most of them initially had some independent official status, such as that of a clerk of the court or an under-sheriff. That status not only made them subject to regulation by the court but also gave them certain privileges: freedom from other public service and being subject to suit only in their own courts, both very important privileges in medieval England, not to mention the privilege of wearing court gowns. It was a natural development that when persons who did not have one of these official court positions began to function as professional attorneys, they sought to obtain the same title and attendant privileges of the attorneys who were court officers. It soon became commonplace to refer to all professional attorneys as officers of the court whether or not they held any other official court position.[169]

“As officers of the court, attorneys fell within the purview of the privileges accorded to the court, such as being exempted from suit in another court, serving in the militia, or being compelled to hold some other office (a general obligation imposed on subjects of the King).[170] It has been suggested that the ‘evidence of [these] privileges, and not the fact of court regulation or the duties of attorneys, was the basis of the title and status of officers of the court.’[171]

“The brief in the Dillon case, in addition to its confused understanding of English practice, focused only on the power of the court to appoint serjeants-at-law. "[L]ittle doubt [exists] that serjeants-at-law were expected to undertake such representation when they were called to by the court.’[172] The role of the serjeants-at-law also is unmatched in American practice. They were virtually public officials. During their prominence these lawyers were the elite among the profession--and titled the ‘Order of the Coif.’[173] Their position was akin to holding public office:

They constituted the elite not only among all English lawyers but among the members of the bar who tried cases in the King's courts. They had the exclusive privilege of practice in Common Pleas until the nineteenth century, they commanded much higher fees than their fellow counsel at the bar, they were chosen only after many years of practice and were initiated in an elaborate ceremony, the judges were selected exclusively from among their ranks, and they had numerous public functions to perform. Indeed the next step from serjeant to judge may well have been a less significant one. In any event, the serjeant-at-law was an ‘officer of the court’ in the truest sense; he held ‘a public office,’ sometimes even on government salary. He has no counterpart in American practice...[174]

“Although no evidence suggests that serjeants-at-law were ever compelled to render gratuitous service, the expectation that they would render such service derived from their public status.[175] Their privileged order was dissolved in the middle of the nineteenth century.[176]

“It seems apparent, therefore, that we cannot transplant the English experience onto American soil, nor can we merely claim that lawyers are ‘officers of the court’ based upon English precedent. Attempts to do so overlook the ambiguity surrounding the use of ‘appointed’ counsel in English practice, and such attempts fail to recognize that America departed from the traditional English model for the legal profession. Unfortunately, the oft-repeated doctrine that lawyers are officers of the court and as such may have conditions imposed by the court on their privilege to practice law has been ‘used as an incantation with little or no analysis of what the title means or why a particular result should flow from it.’[177] For these reasons, we believe that the time has come to abandon invoking the doctrine that lawyers are officers of the court--or, as some courts suggest, public officers--and lay to rest this anachronism from English legal history. In lieu of the doctrine, decisions should rest upon sound reasoning and analysis.

“First, the burden imposed on attorneys in criminal cases when the early decisions were rendered was minimal:

At one time, representing the indigent criminal defendant was a relatively simple and straightforward matter. While there were some minor technical aspects to a criminal prosecution, for all intents and purposes an attorney's duty was simply to conduct a defense at trial with the normal measure of competency.

“State ex rel. Partain v. Oakley, 227 S.E.2d at 322. The situation today, coupled with the expanded right to counsel and the increasing crime rate, is quite different:

[C]ontemporary jurisprudence has introduced a greater degree of complexity into the representation of criminal defendants. Today, the defense lawyer in a criminal case is confronted with a myriad of fine points with which he must deal. The modern criminal lawyer must engage in complicated and detailed pre-trial discovery, analysis of involved issues of search and seizure, occasional scientific jury selection, elaborate rules relating to conspiracy, and in addition must be conversant with the forensic sciences, medicine, psychiatry and other disciplines unrelated to the practice of law.


“Second, the nature of law practice has changed dramatically over the last fifty to one hundred years. For example,

‘Skyrocketing overhead costs have greatly changed the lawyer's financial picture, amounting to as much as one-half his gross income. Complicated office equipment, library expenses, staff, rent, the telephone and other expenses take their toll. In addition, time spent representing an indigent defendant is time the attorney cannot spend on more profitable matters.’

“State v. McKenney[178] The Bar has become increasingly specialized with fewer attorneys skilled in trial practice:

‘Literally thousands of our lawyers, sad to relate, never see the inside of the court room at all. Not only has the bar itself been divided into specialties but of the very small percentage of lawyers who can be said to be trial lawyers an even smaller percentage of them have developed skills in the practice of criminal prosecution and defence. It is unjust that this comparative handful of individuals should alone bear the burdens which are rightly those of all of the bar and indeed of the community and the taxpayers. The regrettably small segment of the bar which has engaged in trial work has cheerfully borne the burden of representation of indigents over the years and these lawyers are frequently those who are less able to afford that burden than some of the brothers not in trial practice. This is inequitable.’


“We do not forget what we have said about the holdings in the great majority of other States based on the theory which we ourselves have expressed, that the bar has a duty to undertake the defence of indigents without compensation and that that obligation accompanies a license to practice at the bar. But times have changed. We do not deal with a profession where it is commonplace for a