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3 Geo. J. Legal Ethics 503 (1989-1990)
Court-Appointed Counsel: The Constitutionality of Uncompensated Conscription

handle is hein.journals/geojlege3 and id is 513 raw text is: Court-Appointed Counsel: The Constitutionality of Uncompensated Conscription* JERRY L. ANDERSON** I. INTRODUCTION For years, judges have filled the gap between the necessity for legal counsel and the inability of many to afford counsel with court appointment of attor- neys. From the fictional Atticus Finch in To Kill A MockingbirdI to the legendary Abe Fortas in Gideon v. Wainwright,2 the tradition of court ap- pointment is deeply engrained in our legal culture. In most cases, the law- yers conscripted serve for less than full compensation; in some cases, they receive nothing but a pat on the back.3 This tradition continues today in a variety of forms. Some appointment systems operate by simply calling attorneys from the rolls of the bar; others rely on a haphazard system of eliciting volunteers for service.4 Often, the lawyers requested to serve are volunteers in name only; an attorney who ap- pears in a particular court with any regularity would find it especially diffi- cult to decline such an invitation. Other systems are the result of a joint agreement between the bar and the bench, although clearly not all attorneys believe the bar association should negotiate for the provision of their labor.5 Until recently, the vast majority of jurisdictions upheld court appointment of counsel, whether full compensation was provided or not, considering such service part of an attorney's traditional duty as an officer of the court. To * Copyright 1989 Jerry L. Anderson. I wish to thank Malinda Matlock and David Coffee for their helpful research assistance. ** Assistant Professor, University of Oklahoma College of Law; B.S. 1981, University of Kan- sas; J.D. 1984, Stanford Law School; Visiting Assistant Professor of Law, Catholic University of America. 1. H. LEE, To KILL A MOCKINGBIRD (1960). 2. 372 U.S. 335 (1963); see also 370 U.S. 932 (1962) (Abe Fortas appointed as counsel for Gideon). Supreme Court Rule 46.7 provides that appointed counsel are entitled to compensation to the extent provided for by the Criminal Justice Act of 1964. 18 U.S.C. § 3006A(d) (setting limits on compensation). 3. References to uncompensated counsel should be read to include undercompensated coun- sel as well. Most of the analysis applies with equal force to cases in which only minimal compensa- tion is provided. See, e.g., Makemson v. Martin County, 491 So. 2d 1109 (Fla. 1986) (attorney was paid $3,500 for $25,000 worth of services). Also included are those cases in which statutes provide for compensation, but legislatures have failed to appropriate adequate funds. 4. For some descriptions of appointment systems, see, e.g., Mallard v. United States Dist. Ct., 109 S. Ct. 1814, 1816-17 (1989); State ex rel Stephan v. Smith, 747 P.2d 816 (Kan. 1987); Family Div. Trial Lawyers of Super. Ct.-D.C. v. Moultrie, 725 F.2d 695, 233 App. D.C. 168 (D.C. Cir. 1984). 5. See Cunningham v. Superior Ct., 177 Cal. App. 3d 336, 339, 222 Cal. Rptr. 854, 855 (1986) (court-appointed attorney claimed forced representation violated equal rights protection).

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