Oregon State Bar Bulletin — DECEMBER 2002

Bar Counsel
Can Oregon lawyers be compelled to represent indigents for free?
By George A. Riemer

Ballot Measure 28, the temporary income-tax surcharge measure on the ballot for consideration by Oregon voters on Jan. 28, 2003, would raise approximately $330 million dollars in state revenue to pay for 2001-2003 government programming. Passage of Ballot Measure 28 would restore approximately $5 million in cuts to the state Indigent Defense Services program during the last five months of the current biennium. Even if Ballot Measure 28 passes, the program runs out of funds on May 1, 2003. If Ballot Measure 28 fails, current estimates are that indigent defense funding will end in April 2003. Plans appear to be in place to start phasing out the provision of court-appointed counsel to indigent defendants as this article is written, though efforts are also ongoing to convince the Emergency Board to restore previously cut funds. As to those criminal charges and other cases for which court-appointed counsel will no longer be provided, the state will either have to dismiss the charges, defer cases, perhaps after arraignment, until a funding solution is found (speedy trial rights may be affected) — or find other alternatives for the provision of counsel.

The topic of conscripting lawyers to provide free legal services for people accused of crimes seems to come up every time the state has a budget crunch. Government has the duty to provide counsel to indigent criminal defendants who have been accused of crimes that result in imprisonment as a matter of federal constitutional law (see Alabama v. Shelton, 535 U.S. ___ (2002) (reviewing prior decisions; holding that the Sixth Amendment right to appointed counsel applies to indigent defendants facing criminal charges that allow for the imposition of jail time even if only upon noncompliance with the terms of a suspended sentence and probation). The Oregon Constitution and state law impose an even broader obligation on government to provide appointed counsel to indigents. (See Brown v. Multnomah County District Court, 280 Or. 95, 570 P.2d 52 (1977); Gaffney v. State, 55 Or.App. 186, 637 P.2d 634 (1981) and ORS 135.050). Notwithstanding these obligations, indigent defense funding has been a perennial political football. The state bar has consistently championed the cause of adequate indigent defense funding and reasonable compensation for court-appointed counsel. Often this has ended up as a rearguard action to prevent further cuts rather than success in obtaining additional funding.

The question this column will discuss is whether the courts could lawfully conscript lawyers to represent indigents. Wouldn’t this be unconstitutional in one or more respects? While I hope things don’t come to this, the old adage that forewarned is forearmed has some relevance here. Lawyers and judges need to start thinking about the legal, ethical and practical implications of trying to force bar members to represent indigents when the state says it no longer has any money to pay for such representation.

This issue has arisen in many jurisdictions. Some courts have held that lawyers have the duty to provide such representation free of charge. See, e.g., United States v. Dillon, 346 F.2d 633 (9th Cir. 1965), cert. den. 382 U.S. 978, 86 S.Ct. 550, 15 L.Ed.2d 469 (1966). Other courts have held they do not. A sampling of some of those cases follows.

In DeLiso v. Alaska Superior Court, 740 P.2d 437 (1987), the Alaska Supreme Court held that a private practitioner could not be compelled to represent an indigent criminal defendant without just compensation. The lawyer had refused a judge’s appointment to represent an indigent. The lawyer was subsequently ordered to commence the representation by a specified date or be jailed for contempt until such time as he undertook the representation. An appeal to the Alaska Supreme Court followed. The court, overruling two prior decisions to the contrary, held that the 'takings clause' of the Alaska Constitution prohibited compelled representation without just compensation. 'We … conclude that requiring an attorney to represent an indigent criminal defendant for only nominal compensation unfairly burdens the attorney by disproportionately placing the cost of a program intended to benefit the public upon the attorney rather than upon the citizenry as a whole. As such, the appropriation of the attorney’s labor is a 'taking' under the provisions of Alaska Constitution article I, section 18.' 740 P.2d at 443.

In Cunningham v. Superior Court, 177 Cal.App. 336, 222 Cal.Rptr. 854 (1986), the California Court of Appeal, Second District, considered whether a lawyer could be required to represent an indigent defendant in a paternity case on order of the Ventura County Superior Court. In California, indigents are entitled to appointed counsel in such proceedings. Lawyers were selected at random for such appointments under Ventura County’s procedure irrespective of their specialty or expertise. Lawyers who did not have offices in the county were excluded, as were legislators, inactive members and full-time employees of public agencies.

The Court of Appeal held that it was a denial of equal protection to force the plaintiff to take the case he was assigned by the court. 'An attorney who is appointed to represent an indigent without compensation is effectively forced to give away a portion of his property — his livelihood. Other professionals, merchants, artisans, and state licensees, are not similarly required to donate services and goods to the poor.' 222 Cal. Rptr. at 863. 'When the state undertakes to prosecute a paternity or child support action against an indigent, it must bear the expenses necessary to comply with the provisions of the state and federal constitutions. These expenses include the compensation of counsel for the indigent defendant. When the court appoints unwilling counsel to represent indigent defendants, it singles out members of the legal profession to indemnify the state for services that ought to be borne by the general tax-paying public.' 222 Cal. Rptr. at 864. The court also expressed concerns about whether indigent clients would receive effective assistance of counsel under such an appointment system.

In Jewell v. Maynard, 181 W.Va. 571, 383 S.E.2d 536 (1989), the Supreme Court of Appeal of West Virginia grappled with a challenge to the constitutionality of West Virginia’s indigent defense system. The system at that time paid lawyers at the rate of $20 an hour for out-of-court work and $25 for in-court work, with a cap of $1,000 except when a case involved the penalty of life imprisonment and for multicount indictments. A court appointed special master found that the average hourly overhead charges of private lawyers doing indigent defense work was $35 per hour, yet the average hourly compensation for court appointed lawyers in 1987 was $20.70.

The Supreme Court of Appeal concluded that the foregoing rates and $1000 limit violated equal protection and due process principles. ' … (W)e hold that effective immediately no lawyer in West Virginia may be required to devote more than 10 percent of his normal work to court-appointed cases.' 383 S.E.2d at 582. The court also raised the rates for indigent defense work effective July 1, 1990, to $45 per hour for out-of-court work and $65 per hour for in-court work. Interestingly, 12 years later, those are still the rates paid court appointed lawyers in West Virginia.

In Zarabia v. Bradshaw, 185 Ariz. 1, 912 P.2d 5 (1996), the Arizona Supreme Court was faced with the question whether the system for the appointment of counsel for indigent criminal defendants in Yuma County was lawful. Yuma County had created a contract lawyer/private bar assignment system. Some cases were handled by contract lawyers. The rest were assigned to the private bar on a rotational basis. The court ruled that the rotational system Yuma County used violated state law and a court rule. The statute required the county to pay for appointed counsel’s services, and the court rule required that appointment of private lawyers to represent criminal defendants had to be '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.' The court declined under the circumstances to reach the issue of the constitutionality of Yuma County’s system. The court also noted that:

[N]othing 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.'

[912 P.2d at 8. Cf. Scheehle v. Justices of the Supreme Court of the State of Arizona, 2002 Ariz. LEXIS 179 (state law governing the arbitration of certain civil disputes did not authorize local courts to compel lawyers to serve as arbitrators)]

The foregoing cases are but a few examples of lawsuits filed over the conscription of lawyers to provide no or low-cost indigent defense services. Additional information on this and related topics can be found by reviewing the following articles: 'Construction of state statutes providing for compensation of attorney for services under appointment by court in defending indigent accused,' 18 A.L.R.3d 1074 (1968); 'Attorney’s refusal to accept assignment to defend indigent, or to proceed in such defense, as contempt,' 36 A.L.R.3d 1221 (1971); and 'Validity and construction of state statute or court rule fixing minimum fees for attorney appointed to represent indigent,' 3 A.L.R. 4th 57 (1981).

How the Oregon Supreme Court might ultimately decide a challenge to the mass conscription of bar members to handle indigent defense cases is not possible to predict. On the other hand, it is quite clear that significant constitutional issues would be raised regarding any such order. Separate and apart from the legal issues involved, the policy of requiring private citizens to provide government services is highly debatable. If lawyers are required to provide free legal services for the poor, will doctors also be required to provide free medical services for the poor? What about accountants, dentists and social workers? Do they have similar obligations? And once government started to rely on such services, it would be unlikely to look for alternative funding sources. Free is a very good price.

Difficult ethics issues may also be involved in the termination of indigent defense funding. For public defenders, firms and lawyers with existing contracts, can they stop representing the people they are already representing when the state tells them they will receive no additional compensation for doing so? Lawyers have the ethical obligation to avoid foreseeable prejudice to their clients upon withdrawal from representation. See DR 2-110(A)((2). Can trial courts refuse to allow them to withdraw? These issues need additional study and discussion as well.

Let’s hope government leaders and the courts will realize that forcing lawyers to make up shortfalls in state funding for indigent defense services by 'donating' their time and money to defend indigents would face immediate legal challenge and would generate a tremendous amount of turmoil and ill will. Better to convene affected parties and interested groups to see if other, less drastic and more effective solutions exist to provide indigents with competent legal representation. Hopefully, the new governor-elect will lead an aggressive effort to address this looming crisis. 

George A. Riemer is general counsel and deputy director of the Oregon State Bar. He can be reached at (503) 620-0222 or toll-free in Oregon at (800) 452-8260, ext. 405, or at griemer@osbar.org.

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