Ex Parte State
The writs of certiorari are quashed as having been improvidently granted.
The petitioner in case number 1930683, James W. May, contends that the imposition of a duty to represent indigent criminal defendants at rates currently limited by
WRITS QUASHED AS IMPROVIDENTLY GRANTED.
HOOPER, C.J., and SHORES, HOUSTON, and INGRAM, JJ., concur.
MADDOX, J., concurs specially.
MADDOX, Justice (concurring specially).
Requiring attorneys to represent indigent defendants without compensating them adequately for their professional services has been a perennial problem for the state, as I wrote in a dissenting opinion in Sparks v. Parker, 368 So.2d 528 (Ala.1979); appeal dismissed, 444 U.S. 803, 100 S.Ct. 22, 62 L.Ed.2d 16 (1979). See 7A C.J.S. Attorney and Client § 299, n. 48 (Pocket Part) (1991).1
Although my position regarding the constitutionality of requiring attorneys of this state to furnish services without adequate compensation has not changed, I have not received much support for my position on this legal issue from either this Court, the Supreme Court of the United States, or other courts, state or federal, for that matter, but I still believe that my analysis of the issue in Sparks was correct.
I naturally disagree with the State‘s argument that the rationale in Sparks is constitutionally sound, but, in view of the fact that the United States Supreme Court refused to review Sparks, I see no reason to continue to
There seems to be growing sentiment for the position I stated in Sparks. See, Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770, 780-81 (1991) (Newbern, J., concurring), modified, State v. Post, 311 Ark. 510, 845 S.W.2d 487 (1993); DeLisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987); State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816 (1987); Makemson v. Martin County, 491 So.2d 1109 (Fla.1986).
In conclusion, I remind the reader of a statement often attributed to Abraham Lincoln: “A lawyer‘s time and advice are his stock in trade.” It seems axiomatic that if the state appropriates that “stock in trade” without an adequate payment therefore, it has taken property without just compensation.
Notes
In my dissent in Sparks, I wrote:
“The majority‘s opinion is premised upon the erroneous concept `that representation of indigents under a court order without fee is a traditional obligation of the Bar and therefore a condition under which lawyers are licensed to practice as officers of the court.’ There may be an `obligation of attorneys to serve indigents,’ but, at most, it is only a moral obligation, not a legal one, unless the attorney is directed to perform such services by a court. If so directed, however, are attorneys required to serve without compensation? I think not. In any event, several attorneys have challenged the statement that they agreed to perform services free of charge as a condition of their licensure. They are now joined by the Alabama State Bar. The Alabama State Bar, in an amicus curiae brief in support of the application for rehearing, states:
“As was stated in the case of County of Dane v. Smith, [13 Wis. 585] Supreme Court of Wisconsin (1861), `We do not believe that the legislature have the power generally to say to the physician, the surgeon, the lawyer, the farmer, or anyone else, that he shall render this or that service, or perform this or that act in the line of his profession or business without remuneration.‘”
“I agree. Can the state appropriate the services of a physician, a surgeon, a farmer or anyone else, without compensation? The answer is obviously in the negative. Neither should [an attorney] be forced to perform services as a public defender without just compensation.”