State Ex Rel. Scott v. Roper

Stephen ex STATE rel. C.

SCOTT, Relator, ROPER, Judge,

Ellen Division S. County, Boone

Circuit Court of

Respondent.

No. 65918. Missouri,

Supreme Court

En Banc.

April April

As Corrected Columbia, Scott, for relator.

Stephen C. Neff, Ashcroft, Gen., Atty. Debra John respondent. City, for Jefferson Edina, Brown, curiae B. for amicus Tom Missouri Bar.

WELLIVER, Judge. prohib- Stephen seeks to

Relator C. Scott Roper from Respondent Judge Ellen S. represent an appointing him to dam- in an action to recover prison inmate malpractice. alleged medical ages for an constitutionality challenges the Relator 514.040, purporting to autho- RSMo appointment and claims that rize such an rights representation violates compelled and state constitutions. the federal under Const, jurisdiction. Mo. art. This Court §V, preliminary order must be 4. Our permanent. made suit, Louis, underlying Wright Jack L. City, v. one in and one in Kansas University of Springfield Missouri Medical Center they and but would not take his Doe”, County Doctor “John Boone Circuit case. did not their names. He remember 83-411620, Court Case No. 29AUG was alia, inter argues, requiring Relator that pro se on August 25, filed 1983. The represent plaintiff him to under- pleading styled Complaint was “Civil Tort lying taking of action an unconstitutional for Medical Malpractice/Negligence.” At- property just compensation. his without pleading tached to the awas Motion to compelled He also avers that he cannot be Proceed in Pauperis, Pauper’s Forma Af- litigation expenses to advance because that fidavit, and a Appointment Motion for taking would also of property amount to a Counsel. The complaint essence as just compensation. without He claims that set forth in pleading permanent is that representation compelled such a violation plaintiff's stitches left in body were after process of due and amounts to an involun- surgery by physician hospital. and the tary suggests servitude.1 Relator that he $300,000 damages Plaintiff claims actual apparently appointed pursuant was $300,000 punitive damages. and § 514.040, RSMo 1978 inasmuch as no oth- 29, 1983, August authority On appointment Honorable Ellen er for such has been Roper, Judge, following S. entered the or- Attorney General, on located. hand, pauperis der: “Motion to arguing respon- Proceed forma other behalf dent, is sustained. Petition is duty imposed ordered filed. contends that this Summons is attorney “professional ordered issued. Mid-Missouri the individual is a Legal appointed represent represent Services plaintiff plaintiff.” Legal Mid-Missouri part Services as of his duties as officer court,” filed motion and affidavit for applicant withdraw- and for admission to “[a]n counsel, ing appointed as alleging justly law be deemed to be prohibited accept- their charter them from profession aware of the traditions of the ing fee-generating Respondent per- joining.” cases. which he is mitted their withdrawal and rela- represent

tor to plaintiff. I Although respon it is not clear that Quash Ap- Relator filed a “Motion to solely 514.040, upon dent relied RSMo pointment of for Counsel Plaintiff and to relator, justify appointment her Withdraw; Permit Counsel to Alternative argument initially we address relator’s and, Payment expenses; Motion For Re- the statute is unconstitutional. The statute quest Abeyance Ruling to Hold Adverse provides: Filing to Permit For Petition Writ of 23, 1984, shall, respon- any Prohibition.” or On March If court before after the hearing any pending dent conducted á on these suit motions. commencement be- it, hearing, At the relator testified that fore be satisfied that the is a purport- poor person, prosecute statute under which the and unable his suit, edly exercising authority pay its was unconsti- or her and the costs and ex- thereof, argued plaintiffs penses may, in tutional. He further such court its $2,500 discretion, permit her require case would at least ex- him or to com- penses proceed. prosecute mence his her order to Plaintiff testi- and action as poor attorney person, thereupon poor that he one such fied contacted St. (D.C.Cir.1984); disposition we F.2d 704-05 1. In view our Bradshaw argument pass on that uncom need not relator’s United S.D. States District Court for of Califor pensated compelled appointments nia, 515, 517, (9th Cir.1984); are an invol 742 F.2d n. Wil untary servitude in violation of Thirteenth Vardeman, F.2d liamson v. 1214-15 We ob Amendment the federal constitution. (8th Cir.1982); Pipe White v. United States & serve, however, arguments have uni that such Co., Foundry (5th F.2d n. Cir. formly rejected without merit. as 1981). Moultrie, Family E.g., Lawyers Division Trial necessary compensation provision person process shall have all for liti without cases, gation expenses. as in treat first relator’s proceedings with- We fees, charge; compelled he out tax cannot be the court contention who, counsel, may assign person spend litigation, such as to such own funds court, obtaining depositions securing all ex well as other officers testimony. suit perform pert shall their duties See Williamson Varde reward; man, 1215; People if judgment Randolph, fee or 24, 337, plaintiff, for costs Ill.2d 219 N.E.2d 340 entered the shall 35 recovered, Robinson, 665, shall for 123 N.H. 465 A.2d which be collected State v. (1983). 1214, the the use of the officers of court. 1217 In State ex rel. Wolff (Mo. 1981), Ruddy, 617 S.W.2d 64 banc 1821, This first in statute was enacted 1142, 1000, denied, 454 cert. U.S. background passed against it was the (1982), Court, 293 this 71 L.Ed.2d faced existing 1 & already poor laws. Mo.Terr. “approaching propor a crisis with situation 363, (1821). State Laws Ch. at 843 For tion,” require held that know noof “[w]e example, pleas the of common professional ment of either law or ethics spend already empowered county to funds attorneys per requires advance poor. for the maintenance of the 1 Mo. for sonal funds substantial amounts the (1815). 121, Terr. & State Laws Ch. at 340 payment expenses of either costs or of the responsibil- Counties were saddled with the a preparation proper defense indi ity supporting maintaining gent Ruddy, supra, accused.” poor. legislature passed these When the Wolff To rule in a civil abandon this suit laws, they particular a intended relieve requirement of is less where the counsel persons. class For one hundred and illogical compelling and manifest would be legislature seventy years the has retained unjust, ly and we decline so hold. While persons poor: the for classification deemed compelled representation without a source lame, “[A]ged, infirm, per- blind or sick litigation expenses might per a work sons, support are who unable to them- justice, nevertheless must version of we selves, per- and when there are no other compel address the court can whether required by sons law and able maintain the representation independent of issue them, persons.” poor shall be deemed concerning litigation expenses. § 205.590, not RSMo We do believe that underlying suit can Ill bring himself within definition of precise question of whether term by legislature as used when power appoint court has the inherent § 514.040 was enacted2 or that statute compel counsel to serve without com- appointment authorizes the in this case. has pensation in civil cases not been re- II long there is a solved this State. While in crimi- important history appointment The more consideration is of counsel cases, history respondent nal no such similar exists whether the inherent plaintiff's Appointments criminal cases compel relator to serve as a civil cases. first malpractice in civil traced to statehood. Our con- counsel action without can be Appointment Supreme paralleled Counsel for Poor Court Rule 77.04 Persons 2. Our Cases,” (1967). per- language §of until when the in Civil Val.U.L.Rev. 514.040 part Maguire, “Poverty Litigation,” rule in the tinent was omitted See also Civil (1923). present rule 77.03. Our rules do contain we While need not Harv.L.Rev. provision. question, appear similar definitional decide the statute would require all “officers” not receive com- However, might also would § be noted that 514.040 pensation for their services. to- require all "officers of the court" serve day’s practice these “officers" would undoubted- During period, without fee. the colonial ly compensation they bailiff, receive because judge, “paid chief- clerk and sheriff were longer paid by parties fees from but rather ly, exclusively, if not fees collected for their they salary. Silverstein, receive annual "Waiver of Court Costs services.” stitution appointment authorized paucity concerning A similar law case counsel in certain appointments trials involving criminal civil exists in other cases Const, jurisdictions.3 slaves. majority Mo. art. Al- vast of courts though appointments long considering compen- this court without ago rejected the idea gratuitous sation do so of a criminal service context as “too fanciful and case, and even romantic,” these decisions contain Kelley v. County, Andrew diversity of views. (1869), Mo. Of those courts ad- in a dicta later case dressing uncompensated the issue of crimi- it attorney was noted that an representing appointments nal appear would an indigent criminal defendant does so majority not require compensation. would compensation as an “officer of the majority,” however, The “claimed “is not court.” Gentry Becker, State ex rel. nearly so solid or monolithic” as one Mo. S.W.2d expect. Shapiro, Enigma “The of the Law- During time opinion this and until a later yer’s Serve,” Duty to 55 N.Y.U.L.Rev. Court, Missouri willingly (1980). strong 755 A minority of courts accepted appointments in such the face of a position adhere compelled to the such that growing hardship imposed on the Bar. See representation unjustified is and unconsti- Bradley, Appointed “Court Counsel for In- tutional. believe it is We that essential to digent in Missouri: Compensa- Reasonable decisions, examine these various their effi- Expenses Allowed,” tion and Should be 21 cacy, application and their to civil cases (1965); J.Mo. Light, Bar 101 “Compensa- such as the one at bar. Expenses tion Appointed and for Counsel Cases,” (1948); Criminal 4 Bar J. Mo. 97 compelled representation The of issue Richardson, Simeone, Reardon “Legal & criminal cases first arose in the context of Aid Indigents Quasi- in Criminal and by lawyer a suit against county Proceedings,” Criminal J.Mo. government 19 Bar 525 having to collect fee (1963). As one of the by last states to him decide awarded to the trial court. With question, Iowa, we held in 1971 exception that attor- of Indiana and Wiscon- neys longer compelled sin, would no majority be to ren- of courts held that an gratuitous Green, der attorney service. v. State could not maintain an action (Mo. 1971). 470 against S.W.2d 571 banc county there unless was an Cf. Wolff Ruddy, v. supra. express statutory authorization funds.4 433, Smiley, Bono; 3. In re 36 N.Y.2d 369 N.Y.S.2d “California Bar Draws Line on Pro Work Cf. 87, (1975) Hit,” (indigent Indigents’ 330 N.E.2d 53 Civil divorce Cases National Law 8, 3; Journal, 1984, right Kaplan, Pay action claimed constitutional October at “No Journal, compensation provided Appointments,” counsel or have for Civil for re- National Law 1984, 2; Victor, counsel); Whitis, 23, 690, January tained “Pro Bono House v. 64 Tenn. Work Firms; Needed," (1875) (dicta Attracting appoint- 692 Some More National unrelated area Journal, 4, 1985, at cases). Law March ed either counsel criminal civil Dibble, recently parte The issue arose in Ex 279 courts, pursuant In federal to 28 U.S.C. (1983), S.C. 310 S.E.2d 440 where that court 1915(d) may only "request” courts that an attor- lawyers withbut much discussion held that were Israel, ney serve in civil cases. v. McKeever 689 officers, public profession’s by bound "le- (7th Cir.1982); F.2d 1319 Allison v. Wil- Rules, gally enforceable” Ethical Consideration son, (N.D.Calif.1967); F.Supp. Wagner 277 271 "profession" and members of a rather than an (W.D.Pa.1967). Maroney, F.Supp. v. 263 377 “occupation." Id. 310 S.E.2d at 442-43. A Cali- appellate imposed e.g., Posey Tompkins fornia County, also has the obli- See & v. Mobile gation (1873); prisoner County in civil cases where an 50 Ala. 6 Arkansas v. Freeman & Johnson, being Yarbrough Superior (1876); Johnson, is sued. v. Court Ark. 266 Elam 31 v. Napa County, Cal.App.3d (1873); Cal.Rptr. 150 County 48 Ga. Vise v. The Hamil- (1 Dist.1983). ton, (1857); Payne Superior Co., 737 Court, See also v. 19 Ill. Case Shawnee Simmons, (1868); Cal.Rptr. 17 Cal.3d 553 P.2d Kan. State 43 La.Ann. (1891) judges liable); (parish One of the in that case felt 10 So. not Bacon County Wayne, bound Supreme decisis on stare and called the State v. The Mich. Supervisors, Court reconsider law in this Dismukes v. Board 58 Miss. 612 (1881); Kelley County, area. supra; The case has received attention People much Andrew Galante, currently appeal. generally Supervisors Albany, v. The 28 How.Pr. 22 from ar- privileges exemption less such as “an early in these cases were The courts rest, duty.” plight attorney Respublica militia v. Fish- concerned with the of the (1 Yeates) 350, liability governmental Pa. Mifflin, than with the of a er & courts, privileges how- body.5 special A number The absence ever, lawyers Indiana, of the high noted that are officers court of that state led gratui- render obligation court and thus their services reciprocal that no could to hold The Hamil- tously. County gra- In Vise v. imposed attorney on the to render ton, example, the court observed tuitous service: officials of court and “[t]he pauper gratuitous The defence of attorneys rights confers on licensed law viz., grounds, as an hon- placed upon two imposes privileges, with them orary duty, even far back as civil recip- obligations, must be duties and law; statutory requirement. as a performed.” rocally enjoyed Vise susceptible Honorary hardly duties are Hamilton, at 79. County of law. Be- of enforcement a Court holding county Generally, when sides, state, profession in this absent attorneys’ for an liable special law was never much favored legislative authorization, courts often bol- emoluments, save, years some pecuniary argument by suggesting that stered their in certain ago, in the case of docket-fees gratuitous inci- service was an obligations contingencies. reciprocal privileges certain an attor- dent to accorded profession body politic, are of the ney as an officer court. proportion. present our slender in Under constitution, it is The doctrine are officers reduced to where been, privileges accorded is always the court and certain should have a common level generally pursuits. law of professions attributed the common and with all other courts, however, England. Few discussed specific no fees practitioners Its application country. privileges the doctrine’s in this special law—no or taxed Case, matter was in Leigh’s The mentioned discriminations their favor. odious (1 Munf.) (1810), Judge business, 15 468 Va. where Every who can find voter Roane Commented: he contracts on such terms as practice therefore, case, owes no necessary, practitioner, The

It is not this to consid- for. citizen, whether, honorary any other or degree attorneys services to er what (as they calling one country public.... considered The idea of are this the England) respec- peculiar privileges, and there- enjoying are officers their of courts; though any that oth- easy being tive it is to see more honorable than fore having attorney, country, er, in this congenial to our institutions. is not many privileges English paid attor- as as the And that class should which, neys, honors, empty consideration of particular services attach, there idea, character is holden to belonging to another is an obsolete in this probably society difference exist hostile to age to a state of country. liberty equal rights. having legal profession been thus early case The Pennsylvania

Id. 479. An at stripped all its odious distinc- retaining properly some of illustrates that —while also emoluments, public the peculiar colonial tions and privileges attorneys during the — longer that class exalted no demand of of period many not claim the did of (11 Peck) Waller, County, (1864); County Madison 21 Ill. Wayne 90 Pa. 99 Alton v. v. (1879); (1859); County, Presby County, Wash. v. Klickitat v. Sac 60 Iowa Mansfield Annot., (1892). generally (1882); See 21 A.L. P. 876 Inhabitants Dalton v. N.W. 73 Inhab- of Hinsdale, (1810); R.3d 819 6 Mass. 501 itants Handlin of (1874); County, Morgan 57 Mo. 114 Otis v. v. century was frequent in the 5. A issue nineteenth Strafford, Gourley 10 N.H. 352 Town of liability county of for various the Allen, (N.Y.1825). 5 Cow. poor. e.g., Clark Cantrell v. rendered (1886); City County, 47 Ark. S.W. of any gratuitous citizens services which An applicant practice for admission to would not be of demandable every may justly law be deemed to be aware attorney, profession class. To the his profession is the he traditions of the his means of livelihood. His knowl- is joining, and to know one of these edge capital is his profession- stock. His is lawyer traditions that a is an officer al mercy services are no more the the obligated represent indigents court the public, remuneration, as to than are or compensation upon little court goods merchant, the crops Thus, the or the lawyer order. has consented farmer, to, or wares of me- assumed, chanic. upon it, when he is fulfill he called “taking cannot contend that it is Baird, Webb 6 Ind. 16-17 services.” The officer of the court doctrine also arose in other contexts.6 appendix opinion, Id. reprinted appellant’s detailing court brief The seminal case centu twentieth holding. the historical foundation for its ry, decided in the wake of the United party argued in the that “Repre- brief Supreme States requiring Court decisions indigents upon sentation of court order the appointment of counsel for legal profession, an ancient tradition defendants, Dillon, is United States going Eng- as back fifteenth-century far as (9th Cir.1965), F.2d denied, cert. pre-Revolutionary land and America.” Id. U.S. 15 L.Ed.2d language at 636. The brief concluded with (1966). Relying heavily upon the brief parallels holding of the court. The appellant in that the Ninth Circuit impact clear, Dillon decision held the obligation indigents serve subsequent opinions most often cite on court compensation order without is “an quote language from decision without ancient and established tradition” and “a discussion.7 condition under which are licensed as officers of However, jurisdictions the court ...” number Dillon, supra, United beginning question States at 635. ever increas- rejected argument ing that com burden the members the bar. pelled taking service prop opinions expressly sug- amounts to a Their impliedly erty just compensation: gest growing that at some time this burden Garland, 333, question (1932); (4 occasionally Wall.) 6. The parte arose the context 71 U.S. Ex 378-79, (1866). of whether held an “office" under 18 L.Ed. 366 Baum, 611, state constitution. In re See 55 Hun. (1890); Austin, N.Y.Supp. 8 771 Case 5 Rawle e.g., Pipe Foundry See & 7. White v. United States 191, (Pa.1835). Stewart, Byrne 203 See also v. 3 Co., Lark, (5th Cir.1981); Tyler 203 646 F.2d v. 466, 471, (3 Des.) (1812) S.C.Eq. (while 477 1077, (8th Cir.1973); 472 F.2d v. 1079 Dolan regulated apparently number of statutes attor- States, (5th Cir.1965); United 351 671 F.2d Jack- officials, neys they public as if were the court State, 488, (Alaska 1966); son v. 413 P.2d 490 office). public held that do not hold Supervisors County Johnson v. Board of questions likely dissipated Such most in the Pima, 33, (1966); Ariz.App. 417 4 P.2d State 546 deregulation legal profession wake of the 331, Ruiz, 625, v. Ark. 602 627 269 S.W.2d century. generally in the mid-nineteenth O’Hara, (1980); 84, 92, Lindh v. 325 A.2d 94 Hurst, J.W. The Growth The American Law: (Del.1974); County DeBoisblanc, Marion v. 410 (1950); Pound, Law Makers 249-52 R. The Law- 953, 951, (Fla.Dist.Ct.App.1982); So.2d n. 1 Peo- yer Antiquity to From Modern Times 221-42 340; Randolph, supra, ple v. 219 at N.E.2d re In Warren, (1953); History A C. the American 228, Meizlish, 129, Mich. 196 387 N.W.2d 132-33 (1911). Supreme Bar The 212-24 United States State, (1972); Young 318, v. 255 So.2d 321 phrase Court also has discussed the "officer (Miss.1971); Stephens State ex rel. v. District Ackerman, 193, the court.” Ferri v. 444 U.S. J.D., 22, 385, Court 13th 170 Mont. 550 P.2d 202, 402, 408, (1979); S.Ct. 100 62 L.Ed.2d 355 (1976); Corey, N.J.Super. 388-89 State v. 117 717, 728-29, Griffiths, In re 413 U.S. 296, 395, (1971); Rush, 284 A.2d 399 State v. 46 2851, 2858-59, (1973); 37 L.Ed.2d 910 Cammer 399, 441, (1966); Sontag NJ. 217 A.2d 445 v. States, 405, 456, 399, v. United U.S. 76 350 S.Ct. State, 1269, (Okla.Crim.Ct. 629 P.2d 1270-71 459, (1956); Alabama, 100 L.Ed. 474 v. Powell 1981). 45, 73, 55, 65, S.Ct. 77 287 U.S. L.Ed. 158 657, 495, 172 So.2d Clifton, 247 La. taking property. E.g., v. may constitute a profes- Commonwealth, (1965). fears the loss 400 S.W.2d Another v. Warner 209, (Ky.1966); Abodeely County v. States Bradshaw United sionalism. Worcester, 719, 352 Mass. 227 N.E.2d anoth- Court, 518. Yet supra, at District Oakley, ex rel. Partain v. State profession of law suggests that er “[t]he (1976). 805, Af 227 S.E.2d 314 159 W.Va. public service commitment to upon rests its noting ter that Dillon had illustrated recognized profes- as a long and has traditionally been considered membership to en- requires its sion that court,” one court held that “officers of the Snyder, activities.” In re gage pro bono traditional proper to ask whether the Cir.1984). 334, (8th 734 F.2d 338-39 concept unjust unfair and had become Responsibility and the Professional Code of such that “whether the burden has become are of- accompanying ethical considerations longer expect the Bar to society should profession- as a source for this ten invoked carry v. Common it alone.” Warner supra, obligation. E.g., Smiley, re al wealth, 211. The court found supra, at 90, 94, 105, 330 N.E.2d at 369 N.Y.S.2d at argument convincing, but chose J., 55, 58, dissenting); Ex (Fuchsberger, proposed legislative creation of a await 443; Dibble, supra, S.E.2d parte system rather than state funded defender District Bradshaw v. United States rule at that time. change the traditional Court, Other courts have held that time Id. analysis supporting Unfortunately, arrived, policy re and as a matter of “fuzzy and unconvinc- arguments is e.g., of its burden. See Jack lieved bar Christensen, Lawyer’s “The Pro ing.” 490; State, supra, at son v. Smith 1981 A.B. Responsibility,” Bono Publico 764, (1978). State, A.2d 834 118 N.H. (1981). arguments are These A.R. J. Rush, example, in the New For State v. outset, they overlook from the flawed Jersey court observed that “there is no among the Ameri- members of the debate professional obliga that it was the doubt whether the Mod- can Bar Association over English and the American attor tion of the Responsibility of Professional el Code ney accept assignment represent mandatory pro require should be altered to defendant,” but held that attor Christensen, generally service. See bono neys not bear this burden alone and should Li- Indigent Civil supra; Swygert, “Should compensation in future cases. ordered Right Federal Courts have tigants Rush, supra, A.2d at State Counsel?”, 39 Wash. & Lee Appointed be noted that the mid-twentieth participants L.Rev. already century legislatures most state had acknowledged that no such in this debate provided compensation. for some State in the Code: requirement previously existed Horton, 34 N.J. 170 A.2d of Professional the Code Prior historic role In addition to the so-called made no reference Responsibility court, some attorneys as officers of the talking about this which we issues upon vague no- appear to rest decisions pro- early days of our morning. In the obli- professional have a tion that fession, under we as law- the code upon gratuitous service provide to gation provision as did not have a yers operated Ruiz, supra, e.g., v. court order. See State profession- personal or were our to what Keener, (dicta); v. at 627 State 602 S.W.2d represen- pro bono responsibilities al (1978) 1182,1184-85 100, 577 P.2d 224 Kan. and its ethical The current code tation. 417, 587 (dicta); Cupp, v. 284 Or. Penrod oper- under which we are considerations (1978). ex rel. 96, See also State P.2d ating speak does to that issue. Charac- 175, Allen, 604 P.2d 288 Or. v. Acocella code, it is at terizing the current best suggests 391, 394, One court n. 6 dealing aspirational statement traditions of high purpose and that “[t]he issue as to whether or not we have this bur- profession require that legal responsibility. professional by its members.” State den be shouldered Proceedings The Second National sanitary police Con- measure. If a law should Of Legal On Public, Services & The requiring every person be enacted li- ference 8, 1979, (1981) (state- December 7 & at 21 services, censed the state to render ments of Bradley, Dan then President of business, furnish the materials of their Legal Corporation). Services A proposed paupers gratuitously, difficulty much mandatory provision rejected, and the justifying would be found in a decision current only expresses Model Code policy holding the law unconstitutional as de- favoring pro representation. bono See priving green grocer or the restau- Rule 6.1. operator rant goods, depriv- of his or as

A substantial minority ing physician, barber, of courts or the or the position take the attorney that an plumber, electrician, or the or the me- be gratuitous to render service. engineer services, chanical of his without See Weiner v. Fulton County, Ga.App. compensation, adhering while to a rule (1966); 148 S.E.2d Knox attorneys’ licensed be County Council v. State ex rel. McCor taken compensation. mick, (1940); Ind. 29 N.E.2d 405 State, Knox County Council supra, Osmundson, McNabb v. 315 N.W.2d N.E.2d at 412. (Iowa 1982); County, Salt Lake Bedford The majority of ap commentators also 22 Utah 2d (1968); 447 P.2d 193 Honore pear reject reasoning in United Washington State Board Prison Dillon, supra8 States v. A number of Paroles, Terms & 77 Wash.2d these position authors take the that a law (1970); P.2d 485 Carpenter County yer’s services prop should be treated as a Dane, 9 Wis. example, For erty right. e.g., Shapiro, 774; supra, at “[sjince among 1850 Iowa has stood Note, supra, at 384-86. Two commenta strong minority (16 of states out of 34 tors, for example, “[tjhe privilege aver that jurisdictions issue) that have addressed the practice property right. law a valuable holding lawyers compelled represent in right vocation, engage digents must receive compensa reasonable others, predicated upon tion.” need not Osmundson, be supra, McNabb v. relinquishment rights.” 16. These courts reason constitutional lawyer’s that a Gorenfeld, services are as much his Gilbert & property as a at 85. Some stock, grocer’s tools, that, suggest electrician’s or an these authors if such an exist, individual’s home. The mere can duty be said to state to license occupations certain gratuitous does not only prem render service justify taking property: reasoning ised on the have a practitioners monopoly practice modern times before the courts. professions arts, argued many and of that “the sci- law is a

ences, trades, monopoly it is businesses are re- because limited to a select quired Legislature to be licensed. The few because that limitation results in may in the require licensing upon future public’s restraints use of operators restaurant grocers Christensen, as a services.” supra, at 15. See Cheatham, generally Bradley, supra; (1976); Martineau, 8. See U.Miami L.Rev. 915 “The “Availability Legal Responsibil- Attorney Services: The As An Officer of the Court: Time to ity Bar,” Lawyer Organ- of the Individual and of the Take the Off the Gown S.C.L.Rev. 541 Bar,” (1965); (1984); Podgers, ized "Mandatory U.C.L.A.L.Rev. 438 Chris- Pro Bono: Basic tensen, Ervin, Remains,” supra; "Uncompensated Question Counsel: 66 A.B.A.J. Mandate,” Rauch, They Do Not Meet the Constitutional Lawyers "Public Interest Law: Should Gorenfeld, (1963); Tab?,” up (1975); 49 A.B.A.J. 435 Gilbert & Pick ardson, Reardon, Simeone, the 61 A.B.A.J.453 Rich- Everyone— supra; “The Constitution Should Protect Shapiro, su- (1984); Smith; Lawyers," Pepperdine pra; "Lawyers Even Lamkin, L.Rev. 75 Who Take Must—At Least Bit,” "Compensation Appointed Legal (1976); Note, Counsel a 1 J. Profession 27 Cases,” (1962); Appointment Attorneys in Criminal 19 J.Mo.Bar 412 "Court in Civil Cases: Marks, Light, supra; Lawyer’s Duty Constitutionality Uncompensated “A Legal to Take The Assistance,” Come,” Many All Comers and Who Do Not 81 Colum.L.Rev. 366 history complexity of the Public, the Marks, ry overlooks Lawyers, also R. legal profession.9 English of the Responsibility and Professional Martineau, supra, at 560. most English barrister The role of the trial today’s American monopoly closely ar- resembles underlying the

The reasons no time have at attorney. Barristers fraught conceptual diffi- gument are officers of history treated as First, English been personally culties. no individual admitted These were argue his own the opportunity denied the court.10 subject by the Inns of Court Although complex nature cause. R. of Court. of the Inns make the to the control many legal issues seem to Pound, It is doubtful supra, at 99 essen- person of a trained law presence compelled to could be tial, ca- barristers pursue free to whether anyone is either Shapiro, supra, party. requisite legal represent See or obtain the reer law 742-46; at 1271. Some Swygert, supra, knowledge. has led a noted This fact present area, Geoffrey suggests that barristers evidence scholar in this Professor might spur of the Hazard, monopoly argument in the courtroom to dismiss —on “dock argue at 101. moment—be Proceedings, supra, as “absurd.” upon the a criminal defendant Second, pro- brief” for limiting persons who guin- the sum of one “tendering to counsel professions in this vide services a solici- the intervention of advantage of its ea without personal is not for the (quoting Shapiro, supra, at 742 protection tor.” members but rather for Legal Aid and Conner, Report of the Committee public. 357 Mo. In re Wales, (1948). Third, Legal England Cmd. monopo- Advice S.W.2d (1945)). ly argument necessarily upon must rest No. 6641 assumption, otherwise mem- some unstated English “attorneys” Technically, only occupations by the state bers of all licensed officers of the court. See treated as were gratuitous compelled could be to render Martineau, 543-44. The role of supra, at Parker, Sparks service. 368 So.2d counterpart “attorney” has no English J., (Ala.1979) (Maddox, dissenting) ap- barristers, attor- country. Unlike in this dismissed, peal U.S. directly by judges neys “were admitted (1979). Doctors, 62 L.Ed.2d 16 for exam- gave statutes and medieval of the court” required pa- to treat ple, then be officers. control over these the court direct receiving tients a fee. attorney, as an officer The role Id. court, performed role resembled the validity of the offi- of the We next examine the engaged in in the court Shapi- by staff members the court doctrine. Professor cer of also coerced, duties. Id. at 544-47. See justify un- ministerial explains ro that “[T]o English Pound, 100-01. The supra, at compensated legal on the basis of R. sug- Plucknett Theodore legal historian England firm tradition in and the United upon now looked story gests that barrister into that tradition a is to read “[t]he States clerk; superior sort of attorney as a Shapiro, supra, at 753. is not there.” attorneys for the were justifiable, English tradition without a this was Invoking the technically part of the regarded as country’s histo- now of that careful examination position Americans, "as citi- obligation English stemmed from most 9. To zens, King’s essentially the commands of the or solicitors. This is to defer to either barristers English practice. Courts, relationship See of modern of their the nature not because England Megarry, "Litigation To- generally Note, probability, supra, In all at 374. courts.” Surface," Wash.U.L.Q. day: however, Beneath only appoint- such relevance of however, centuries, English (1984). Over the they they occurred—is that indeed ments—if given titles and different have the barrister to avoid the as a means for served they performed various roles. requirement not have direct contact with that he Pound, generally R. at 103- a client. See Note, supra, at 373. 10. suggested that if an It has been appointments, accept then the existed Plucknett, clerical staff of the practice. virtually courts.” T. ican They public were A History Concise the Common During prominence Law officials. their of (1956). explains: Another commentator lawyers among profes- were the elite the Coif.” were treated as of sion—and titled the “Order of the officers

court initially Megarry, because most of them had See Sir Robert “Inns Ancient status, independent Modern,” some (Seldon official such Society 14-23 Lecture aof clerk of the 1971). court or an under- position holding Their was akin to only sheriff. That status not made them public office: subject to regulation the court but They only constituted elite not also gave privileges: them certain free- among English lawyers among all public dom being from other service and the members of the bar who tried cases subject only courts, to suit in their own King’s in the courts. had the ex- They very both important privileges in medie- privilege practice clusive Common England, val not to mention the privilege Pleas until the century, they nineteenth wearing gowns. court It awas natu- higher much commanded fees than their development ral persons that when who bar, they fellow counsel at the were cho- did not have one of these official court only many years sen after positions began profession- to function as and were in an initiated elaborate cere- attorneys, they al sought to obtain the mony, judges were selected exclu- same privileges title and attendant of the sively ranks, among they from attorneys who were court officers. public per- had numerous functions to soon commonplace became refer all step form. Indeed the next Ser- from professional attorneys as officers of the p jeant judge well have been less they any court whether or not held event, significant one. the ser- position. official court jeant-at-law was an “officer of the court” Martineau, supra, at 547. See also M. sense; public truest he held “a Birks, (1960). Gentlemen the Law As office,” government even on sometimes court, attorneys officers of the fell within salary. counterpart He Ameri- purview privileges of the accorded to practice, ... court, being exempted such as from (footnotes omitted). Shapiro, supra, at 746 court, serving militia, suit another in the Plucknett, supra, See also T. at 222-23. being compelled to hold some other of- Although suggests no evidence that ser- (a general obligation imposed fice on sub- jeants-at-law were compelled ever to render jects King). Mayor See Norwich gratuitous service, expectation Bury, Burr. 2110 See also they would render such service derived Respublica Mifflin, supra, v. Fisher & Pound, public from their status. R. 351; Case, (1 Munf.) 15 Va. Leigh’s supra, privileged at 83. Their order was suggested It has been in the dissolved middle the nineteenth privileges, “evidence and not the [these] Plucknett, century. T. at 224. regulation fact of court or the duties of therefore, attorneys, apparent, the basis the title and It seems that we status of officers of the court.” Marti- transplant English experience cannot neau, supra, at 549. soil, nor merely onto American can we claim that are “officers of the brief the Dillon in addition upon English precedent. court” based At- understanding English to its confused tempts to so ambiguity do overlook the only focused practice, surrounding “appointed” the use of counsel serjeants-at-law. appoint “[L]ittle English practice, and such attempts fail serjeants-at-law doubt were [exists] recognize departed that America expected representation undertake from English were called the traditional model for they the court.” when Shapiro, supra, profession. Unfortunately, at 746. The role the oft-re- serjeants-at-law peated also is unmatched in Amer- doctrine that are officers of equip- office gross Complicated income. conditions as such have rent, staff, imposed privilege ment, expenses, library the court on their practice incanta- law has been “used as an expenses take telephone and other analysis tion with little or no of what addition, representing spent time toll. In why particular title means or result attor- is time the indigent defendant Martineau, supra, at should flow from it.” mat- spend profitable on more ney cannot reasons, 451. For these we believe ters. invoking the the time has come to abandon Wash.App. McKenney, 20 State lawyers officers of the doctrine that are The Bar has be- P.2d 576-78 or, suggest, public as some courts court— specialized fewer increasingly with come lay to rest this anachronism officers—and practice: in trial attorneys skilled legal history. In lieu of the English from lawyers, our sad Literally thousands of doctrine, upon sound decisions should rest relate, inside of the never see the analysis. reasoning and only Not has the bar court room at all. First, imposed the burden specialties into itself been divided early when the decisions criminal cases percentage of very small minimal: were rendered was lawyers an said to be trial who time, representing the At one percentage of them have smaller even relatively sim- criminal defendant was a practice of crimi- developed skills ple straightforward matter. While unjust It is prosecution nal and defence. aspects there were some minor technical comparative handful of individu- that this intents prosecution, to a criminal for all which should alone bear the burdens als attorney’s duty sim- purposes rightly those of all of bar are ply to conduct a defense at trial with taxpay- community and the indeed of the competency. measure of normal segment of regrettably small ers. supra, 227 Oakley, ex rel. Partain v. State work engaged has trial the bar which today, coupled at 322. The situation S.E.2d repre- cheerfully borne the burden expanded right to counsel and the years and indigents over the sentation of rate, quite different: increasing crime frequently those who jurisprudence has intro- [Contemporary than to afford that burden are less able degree complexity greater duced a practice. trial some of the brothers representation of criminal de- into the inequitable. This is lawyer in Today, fendants. the defense myri- criminal case is confronted with a points he must ad of fine with which forget we have said do not what We lawyer must deal. The modern criminal great majority holdings in the about pre- engage complicated and detailed theory on the States based of other is- discovery, analysis of involved trial expressed, that have we ourselves seizure, occasional of search and sues duty undertake the has a the bar selection, rules jury elaborate scientific compensa- indigents without defence of in addition relating conspiracy, accompanies tion and that sci- with the forensic must be conversant at the bar. But practice a license medicine, ences, psychiatry and other dis- changed. We do not deal times have law. practice ciplines unrelated it is common- profession where with a Id. lawyer spend day one place for a next in court. Our office and the bar practice has his

Second, nature of law fragmented become fifty and its dramatically over the last changed attorney, example, purpose the skilled years. For and the all hundred one trusts, expert as the as well advocate great- costs have overhead Skyrocketing law, long- is no corporations and business picture, financial changed lawyer’s ly er with amounting to as much as one-half [us.] Abodeely County Worcester, suipra, proportion most of choice direct to the loss 227 N.E.2d at 489. professional rendering service. Third, there is little or no substantiated contingent In involving potential cases uncompensated appointments evidence that claims, poor fee is no for a more difficult either were compelled or should disadvantaged person lawyer or a to find in contrary, civil cases. To the the strict- person. than it is for a well-to-do The developed ness with which the system fee ability lawyer depends upon to find a the during sym- colonial times illustrates little degree of merit of claim. the Woods pathy for the pauper. Ma- generally (E.D.Mo. Dugan, F.Supp. 519 750-51 guire, Silverstein, supra; supra. While 1981) on grounds, vacated 660 F.2d one author suggests that colonial records (8th Cir.1981); Fleck, 379 Ferguson v. 480 indicate that “in some instances counsel F.Supp. 219, (W.D.Mo.1979); 222 Davison assigned litiga- in forma in pauper civil Co., Joseph F.Supp. 750, Horne & 265 tion,” the father of modern American (W.D.Pa.1967); Houston, Rhodes v. legal history, Hurst, James Willard con- (D.Neb.1966) aff’d, F.Supp. law, tends that common and in some “[t]he (8th Cir.1969). market, 418 F.2d 1309 The statutes, early states a few held out to the then, litigation as a serves check on the poor help assigned the by of counsel the facing courts, explosion society and the But century court. the later nineteenth Judge explains: Richard Posner long this had fallen into disuse in [ejncouraging the of use retained counsel Hurst, supra, civil cases.” J.W. at 152. provides thus a market test of the merits State, See also Scott Tenn. prisoner’s the claim. If it is a merito- (1965) Cheatham, (quoting S.W.2d rious there it for money claim will be a (1955)). Legal The Profession lawyer; ought if it is not it not to be Fourth, are justify- there fewer reasons hapless unpaid lawyer. forced on some ing imposing mandatory a Israel, (Posner, McKeever v. at 1325 attorneys in cases civil than criminal J., dissenting). recognize cases. While we the de- cases, non-fee-generating there are le- legal mand services the societies, gal judicare programs aid be- increasing may be while federal funds for legal tween aid services and local asso- bar legal programs service we dwindling, are ciations, schools, legal aid clinics in law compelled represen- are not convinced that group legal public groups, plans, interest tation would the serve best interests of dispute resolution centers. Courts and society either or clients. legislatures awarding also have authorized furnishing The distinction between the attorney’s against the losing party fees pro court compelled bono services and suits, enticing thereby attorney certain legal services seems to have been lost feels the case has merit to entertain who principles American case law. The same if suit the client has even insufficient applicable Compelled legal both. funds. totally giv- service is inconsistent encourage we members While pro ing of bono service a as matter explore possible the bar to all avenues for professional professional responsibility assuring equal justice, access to we do not pride. The latter two involve matter believe that courts have inherent professional It choice. choice provide in civil cases alternative rendering of the service self-ful- makes compelling representation compen filling, pleasant, interesting, and success- period, sation. Since colonial Compelling deprives law ful. service professional yer’s recognized services have been professional of the as a element property quality uncompensated protectable interest. choice. was noted expected al- “[¡Industry can be to decrease in service faculties are Chroust, Legal 12. Anton-Herman Rise America Profession JJ., BILLINGS, HIGGINS, republic.” property in a GUNN most valuable Stewart, supra, at 468. concur. Our Byrne protects expressly an in-

state constitution G.J., RENDLEN, concurs in result. by providing “that all dividual’s right to ... persons have natural DONNELLY, J., separate concurs gains their own indus- enjoyment of opinion filed. Const, try.” Mo. art. I 2. We will not J., BLACKMAR, separate dissents citizen permit deprive the State opinion filed. right grant- condition to constitutional as a privilege. While nineteenth ing a license DONNELLY, Judge, concurring. century early twentieth cases and Kimberlin, In rel. Morasch v. State ex otherwise, suggested growing body have (Mo. 1983), 889, this 891 654 S.W.2d banc persuades federally modern law us that of pre- lie to prohibition Court held that will rights should be guaranteed constitutional we jurisdiction of but “that vent excess protection.13 It is not nec- accorded similar should continue the unfettered use not question. essary that we reach the federal to prohibition the writ allow interlocu- deem it for either in tory We admirable trial court error.” review of attorneys of attor dividual or associations Hais, 670 McNary ex rel. State legal represen neys pro to volunteer bono 494, (Mo. 1984), banc this Court S.W.2d 497 urge strongly tation and the continuation that prohibition held will lie where “[r]ela- practices. of such commendable is both adequate remedy by way tors do not voluntary permissible proper and asso appeal.” attorneys ciations of to condition member jurisdiction In this the court has ship upon doing a certain amount members adequate remedy by way of there no is pro representation bono and courts therefore, and, prohibition lie. appeal will appoint attorneys such in civil cases as well I concur. attorneys and who volunteer compensation.14 agree to serve without BLACKMAR, Judge, dissenting.

The courts of this state have inherent appoint power compel attorneys to to unnecessarily and unwise- The Court acts compensation. serve civil actions without provisional prohibi- rule in ly making our Providing for representation and justifiable holding This tion absolute. legislative funding thereof is a matter for Judge Roper was only if it said that can be action. authority utterly appoint attor- to indigent plain- ney for an preliminary permanent. made Scott as counsel Our rule is Hampshire Pip Supreme New Harlan Court 13. Justice once commented that "[w]e Cf. — 1280, 1272, —, —, er, lawyers, spe 84 not hold that because of their do 105 S.Ct. U.S. 4238, society, deprived 205, be status in cial 4242 U.S.L.W. L.Ed.2d therefore rights constitutional assured to others." Co by Piper plan Court was later cited 129-30, 954, 117, Hurley, 366 81 S.Ct. U.S. hen 961-62, procedurally by Attor held defective the Texas overruled, (1960), Spe L.Ed.2d (No. Tex.Att’y ney Slip Op. Gen. JM- General. Klein, 511, 625, S.Ct. 385 U.S. vac v. 161, 7, 1984). The difference between June (1967). Following the demise of L.Ed.2d 574 by program required mandatory pro bono vol conditions, doctrine unconstitutional the Hale, by imposed and that unteer bar associations Conditions Consti “Unconstitutional acknowledged Supreme the Florida state was (1935), Rights," 35 Colum.L.Rev. tutional Court, that "numer observed where Supreme has States Court not al United organizations throughout voluntary ous bar deprived be certain feder lowed perform pro require that their members state rights. e.g., Baird v. State constitutional al however, differences, There are bono work. 702, Bar, 27 L.Ed.2d 639 U.S. 91 S.Ct. voluntary mandatory associa between Examiners, (1971); Schware Board Bar Emergency Delivery Legal Ser tions." In re 77 S.Ct. 1 L.Ed.2d 796 U.S. Poor, (Fla.1983). To 432 So.2d vices Bar, Konigsberg v. State U.S. 1 L.Ed.2d 810 tiff in a civil case. I representation believe that our circuit asked undertake silent, however, authority courts do not lack the to call without fee. The record is upon them, members of particular might the bar assist as to the which demands authority not that this does exclude the be made on him. He has not been ordered appointment of counsel in civil cases. expend prosecution This own his funds in the case, furthermore, presented claim, us on a plaintiff’s undoubtedly cannot fragmentary showing factual such as required.3 apparently so He has done justify would our quashing preliminary nothing appoint- at all account of rule in the exercise of our discretion.1 ment, but has sued the writ now rather out us, using great before deal of time which in the trial court is not a plaintiff’s have been devoted to the personage sympa calculated to command interest in preparing his excellent brief.4 thy. approximately He served two follow, willing For reasons I am years year penitentiary of a sentence. utterly say lacking that the Court is being While hospital examined at the state appointment. to make Fulton, sharpened paper clips he stuck abdomen,2 surgical into his so that removal distinctly disappointed posi- I am in the required. was He now seeks maintain a tion taken the Missouri Bar. I assume against operating surgeons claim that the filed on its brief behalf filed malpractice in leaving permanent stitches by authority of its Board of Governors. in the incision. Yet we should not let this Counsel, undoubtedly unpaid, has been dili- plaintiff’s apparent delinquencies lead us research, gent in and has the brief may into a decision which have adverse helpful respect, in this but the whole tenor consequences indigent persons. for all We protection lawyers of the brief is for and in should mind bear Justice O’Connor’sre suggestion there is ho whatsoever about — warning Palmer, cent Hudson plaintiff might legal how the receive assist- U.S.—, 82 L.Ed.2d presenting ance in his claim. The brief (1984), as follows: up hobgoblins, such conjure seeks to litigation country quite prop- The courts of this excess of on the burdens courts, provision erly responsibility protect- share the for no attention as to ing equal justice hoped under I had rights the constitutional of those im- law. for prisoned help dealing for the more the Missouri Bar crimes from commission against Thus, problem society. prisoner’s with the ultimate of this case.5 when property wrongfully destroyed, legal We face a for the crisis services prisoner, courts must ensure that indigent. agree I with the observation person, just less than receives opinion that, principal because compensation.... costs, pressure pri- of overhead relator, difficulty in appreciate problem increasing I can vate face ' Scott, rendering remuneration. among faces. He is selected from all services without Circuit, thought legal ser- lawyers in the Judicial At one time it Thirteenth Stussie, relator, application, County post-hearing 4. The in a ad- 1. State ex. rel. St. Louis (Mo. 1977). S.W.2d banc the defendant tele- vises that he interviewed sought phone to obtain medical informa- psychiatric at Fulton seems to The evaluation 2. question diligence. tion. I do See Note quite in have been order. 13. Vardeman, (8th F.2d Williamson Cir.1982), recognize Lawyer Ruddy, I the Missouri and State ex rel. Bar’s Refer- Wolff (Mo. 1981) Service, might plaintiff banc hold that S.W.2d 64 appointed ral refer the to a represent criminal de- lawyer visit who would with him consider may required to fendants not be advance sub- plaintiff put the his case. It well expenses. respondent’s overruling stantial Service, possibly mooting touch with the motion to advancement of ex- of the relator’s case. penses not an counsel order that advance expenses. reasons, organizations, substantially sup- good vices If a has a he ported by public funding, might provide lawyer willing take the case on a will be effectively directly, services more than volunteers contingent say fee. He does not could, hypo- but now we are told that federal by implication that this but follows expenses categories other than in selected discovery lawyer thetical will advance such bone, must be cut to the fees, the state expenses, experts’ prepara- and other cannot shoulder the burden because the expenses,6 tion so that case be legislature’s authority ways devise brought appearance on for trial or in subjected means has been to severe consti- impress seriousness created such as will constraints, all, that, tutional above adjusters. He concludes that those citizenry subjected must not to in- be legal damage who deserve services suits creased revenue claims. A few stalwart get them. legal souls keep have striven to analysis, apparently Posner’s Darwinistic alive, poor precarious

for the state principal opinion, endorsed is not prospect taking and without on in- wholly satisfying. Supreme Court of responsibilities. creased States, context, the United in other respondent initially We are told that the arrangement condemned an which makes Legal Mid-Missouri Services to lawyer judge the final in a case with represent plaintiff, but was informed authority proceed- total to forestall further organization that the “charter” of pre- ings.7 way There should some that an handling cluded its generating” of “fee indigent person who wants to make a claim cases, damages which a claim for for mal- responsible lawyer have access to a practice presumably is. These assertions her, personal professional him or ad- wholly satisfy do not me. Some ser- principal opinion per- vice. The does not representation vices offices assume of an respondent absolutely suade me indigent, suits, damage even in if it is dem- power appointment. lacks to make an private lawyers onstrated that are not will- ing to respondent handle the case. The I. explore also the possibility ap-

pointing one or more of the individual law- indicate There are circumstances which yers legal organization. of the rule, quash preliminary the that we should employer’s Their time is no more sacred Respon- in the exercise of our discretion. private than practitioner. ap- a It relator, simply appoints the dent’s order pears stage, however, pub- at this that no surprised I the nothing more. am licly legal financed services are available to unappealing selection of such an ease for plaintiff. authority ap- the rare exercise of the point. sought The relator no less drastic Bar, principal opin

The Missouri and the relief, ion, respondent’s attacked the order plaintiff only suggestions offer the applied Posner, at the threshold and for our writ Judge bright one of the new trying to obtain a further under- lights jurisprudence with his theories duties, standing having melding judge of his even a law economics. The suggests, dissenting opinion preliminary interview Mer claimant. Faulkner, (7th respondent attempt 697 F.2d 761 Cir. The has made no to use ritt 1983), court, place” power of the that the “market should de the coercive but has availability simply termine the services to stood aside while the relator asks us impoverished plaintiff damage suspicion in a suit. for relief. There is at least a required payments pro- defendant was denied This has no need of rent 7. State fair appeal cedure where counsel for grocery money took sometimes advanced counsel action, but advised court that he found no satisfactory a settlement offer is not forth- when appeal. California, Anders v. merit on 386 U.S. coming. S.Ct. 18 L.Ed.2d 493 simply § an issue has been framed in My position coverage on the of 514.040 hope of obtaining our obliges decision. constitutionality me to consider the against challenges that statute as Under the circumstances it is entirely against levied principal opinion it. The has appropriate quash the preliminary rule. disposed “involuntary servitude” ar- If further, the relator is burdened as a guments.9 arguments I would reject also contempt citation, he then ask for based on taking property depriva- appropriate relief. process law, tion of due under the feder-

al and state I constitutions. have found Attorney brief, II. General’s submitted statute, defense of very helpful. reaching Before the merits I would dis- pose spurious As principal opinion points out, issue. Both the relator and the Missouri 514.040has been spectre Bar inflate the with us since territorial days. malpractice long was on the against suits books before lawyer who un- counsel representation dertakes and all members of the per- Court, son, practice. were licensed to Most of but is in litigation unsuccessful be- probably us did not know cause he about the statute does not advance the funds neces- oaths, when we took our sary probably but we prepare for trial as to expert secure should have known of it. I would hesitate An appointed witnesses. lawyer cannot be say unconstitutional, that the statute is obliged to advance funds in a criminal accept and that we could case,8 benefits of there is no to do fortiori bar membership with the reservation that so in a civil case. The failure to advance very clear applied statute will not be funds duty client, breaches no us. cannot be made subject of a civil action. respondent has ordered the relator Court, many years, upheld Our any expenses. to advance To the extent authority judges appoint trial that the Missouri suggests Bar’s brief counsel in criminal cases. State ex rel. has, she the brief inis error. Becker, Gentry v. 351 Mo. 174 S.W.2d asserted, Too often the litigation chimera of against challenges constitutional now thrown out as an excuse for inaction. I made, Green, in State v. 470 S.W.2d 571 agree lawyer be sued for mal- (Mo. 1971), banc legisla- with notice to the even a case in which no fee is ture compensation that means of would be received, professional duties are im- sought if legislature appro- did not take posed by law and exclusively by con- priate action. Then in State ex rel. Wolff tract. potential Discussion of liability for (Mo. Ruddy, 1981), 617 S.W.2d 64 banc malpractice for failure to advance ex- power apolo- reasserted “without however, penses, has no proper part in this gy,” legislature when the failed to autho- case. funding. rize sufficient may Some states contrary position, take a our Court has III. unequivocally spoken out in favor of the appoint counsel. agree I cannot principal opinion with the plaintiff, that the being prisoner, a is with- Contrary position to the of the Missouri § 514.040, coverage out the RSMo 1978. Bar, I see no essential difference between Section 205.590 was enacted in order to appointment of counsel in civil cases and persons define the entitled to maintenance criminal cases. Missouri courts ap- here public expense, any- not to exclude pointed counsel criminal cases long be- possible from one assistance under other fore Wainwright, Gideon v. 372 U.S. statutes. (1963), 9 L.Ed.2d 799 when the See, See, supra. Note Principal Opinion. Note Perhaps thought I duty command. to furnish counsel to criminal defend- subaltern’s power. could use its coercive extremely require- If a that the court ants was limited.10 found, however, judges I were sensi- uncompensated ment of a crimi- declining ap- good reason for “taking tive when not constitute a nal case does advanced, were will- servitude,” pointments were property,” “involuntary or issuing ing explore By our alternatives. deprivation process, then it due writ, strip respondent absolute we categorically cannot be said that such viola- bargaining power. her appointments. The tions exist in civil two degree differ in but not in kinds of cases possibility I would not foreclose quality. might demands on a court make as to counsel which are so burdensome presence constitutional federal pose problems. constitutional Constitution- appointment requirement of counsel quantitative as well as al standards be imprisonment might all cases which Nothing us qualitative.12 now before possible11 actually strengthens the consti- demands have been shows that against argument appointment tutional I made on the relator. believe that appoint- uncompensated counsel. Prior him authority require trial court has the justified by our courts’ concern ments were plaintiff and to at least to consult with the justice. con- for the administration of This preliminary make a evaluation of his cern extends to civil cases as well as crimi- convict, plaintiff, If as a claims. authority nal. Now the state asserts the suing except through a disabled from trus- lawyers’ commandeer services so that tee, might inquire possi- into the the relator may discharge obligations its federal with- court, bility appointing one.- The at rela- expense. out request, might appoint tor’s additional approve spong- I do not sharing might help. counsel if a load but, ing lawyers, off if are to be appears promising, If relator the case appointed in criminal cases com- might personal injury one of the consult pensation, opinions they as our assert that us, who, Judge are Posner assures be, logical I see no distinction which damage promising suits. ever available Nor, utterly would exclude un- civil cases. might find out whether mem- The relator law, der the current of our I state am able profession, or of medi- bers of the medical to hold that a statute such as 514.040 is students, faculties, perhaps medical cal facially unconstitutional. willing preliminary con- to undertake Appointments of counsel have been han- Bar sultation without fee. Missouri degree consensuality, my dled with a good finding might tender its offices experience. I rep- have often served on court lawyer willing plaintiff’s to undertake appointments, my If, investigation, and I am sure that breth- after the resentation. said, judge “help opinion ren have also. When a that the relator is of the out,” really apply me I felt that I had no choice. he does not have viable relief, Perhaps army just I in mind the old maxim trial court for as Mid-Mis- had commanding Legal did.13 that the officer’s desire souri Services 1252, contingent says Brady, it fee. He that he felt Betts v. 316 U.S. 62 S.Ct. take on 10. these conclusions to that he should not disclose L.Ed. 1595 court, possible prejudice to the trial because Wainwright, supra, Argersinger v. 11. Gideon v. why plaintiff. no reason he should not I see Hamlin, 32 L.Ed.2d 407 U.S. disclosure. Had he done so the have made full discretion, might judge, her well have vacated in sought appointment or other I counsel. Brune, City Louis v. 466 S.W.2d 677 12. St. imagine cannot a course more detrimental to (Mo.1971). post- than the one he took. His Relator, submission, provide post-hearing opinion an advis- disclosures additional rea- in a writ, investiga- quashing my son for increase us that he did make a substantial es tion, plaintiffs suspicion issue that an was framed for a test and that he concluded that the not case. was so without merit that he would case respondent presently respondent The has not made assumed that abuse het will any making appointments. in substantial demands on the relator. discretion assuming There no basis that is for our she so,

will or will do that she be deaf to claims ÍV. I substantial burden. As have said be- § anticipated argument I 514.040 fore, authority is requiring there for the might challenged be as an invasion of the to relator undertake ex- substantial authority governance in judiciary penditures in the of uncompensated course by legislative authority, the bar in all representation. IBut would not find un- II, violation of Art. Sec. 1 of Missouri constitutionality requiring in an appointed I Constitution. would solve this assert- buy gasoline, pay to or for attorney to ing power. inherent calls, telephone few to incur mini- or opinion, the principal In contrast to I Attorneys expenses. appointed mal in align on would Missouri the side those customarily criminal cases have done this. power hold that there is in a who inherent § 514.040, court, discretion, provisions appoint in RSMo trial its Appoint- “perform litigant.15 shall counsel to assist civil suit fee or in cases duties without ments criminal made might preclude express statutory authority, reward” not an allowance without attorney power. for represent who is successful in estab- an exercise or inherent “fund,” lishing power this equitable under familiar The exercise of in civil cases principles.14 expan- only degree. Or there be an differs definition of I sive “costs.” mention challenge doI not the exhaustive histori- possibilities to show that there are numer- opinion. analysis principal cal It possibilities presently ous issue not opinion, simply discloses a difference of against heavy which militate hand of position. we are to take our which free own provision “ser- absolute writ. for strong preference public for My would be vice fee or reward” undoubt- funding civil and both edly designed protect counties or other But not in criminal cases. these are avail- claims, governmental against units able, do her respondent so the must best necessarily preclude compensation which resources, available and so must this with public does not come from the coffers. Court. put appropriate It is also anoth- rest My are conclusions consistent Art. herring er red the Missouri conjured I, Constitution, 14 of Missouri Sec. brief, suggested Bars it is reading as follows: opening this would Pandora’s justice open That the courts of shall be civil Box if should hold that every person, remedy and certain af- to free litigants right had a constitutional every injury person, proper- forded counsel. character, right justice and that ty sale, shall be administered without denial actions There follows a list frivolous delay. let might be filed if the barriers were § misguided. proper I believe that 514.040is a meas- The effort No issue down. implementing provision, and that right of constitutional to free counsel ure may rely courts Appointments under 514.040 the also their inherent involved. doing entirely discretionary. not be so. Dibble, parte Ex 279 S.C. pre- 310 S.E.2d 440 recovering or person who 14. A succeeds (App.1983), Smiley, In re 36 N.Y.2d serving a fund contribution for demand (1975), Yarbrough N.Y.S.2d 330 N.E.2d 53 maintaining litigation expenses and fees Superior Napa County, Court Cal.App.3d Buder, F.Supp. 379 counsel. Franz 388,197 (1 Dist.1983), Cal.Rptr. 737 In Interest (E.D.Mo.1932). D.B., (Fla.1980), Betit, 385 So.2d 83 Caron Vt. 300 A.2d stated, quash I would For the reasons prohibition. rule in provisional al., ROTH, E. et

Donald

Plaintiffs-Respondents, HIGHWAY COMMISSION OF

STATE

MISSOURI, Defendant-Appellant.

No. 47442. Appeals,

Missouri Court District,

Eastern Four.

Division

Oct. 1984. Rehearing

Motion For and Transfer

Denied Nov. 1984. Supreme

Transferred to Court 15, 1985.

Jan. Appeals

Retransferred to Court of

May

Original Opinion Reinstated

May Kirkwood, Maupin, for de-

John Wheelan fendant-appellant. Louis, Ebling, plain- St. C.

Samuel tiffs-respondents.

Case Details

Case Name: State Ex Rel. Scott v. Roper

Court Name: Supreme Court of Missouri

Date Published: Apr 30, 1985

Citation: 688 S.W.2d 757

Docket Number: 65918

Court Abbreviation: Mo.