Ex parte Dibble, 0024

• Decision Date: 19 December 1983
• Docket Number: No. 0024,0024
• Citation: 310 S.E.2d 440,279 S.C. 592
• Court: South Carolina Court of Appeals
• Parties: Ex parte Robert W. DIBBLE, Jr., and George L. Dial, Jr., Appellants. In re Earl T. HAMAAS, Applicant, v. STATE of South Carolina, Respondent, of whom Earl T. Hamaas, and State of South Carolina are Respondents.

Page 440

310 S.E.2d 440

279 S.C. 592

Ex parte Robert W. DIBBLE, Jr., and George L. Dial, Jr., Appellants In re Earl T. HAMAAS, Applicant, v. STATE of South Carolina, Respondent of whom Earl T. Hamaas, and State of South Carolina are Respondents.

No. 0024.

Court of Appeals of South Carolina.

Dec. 19, 1983.

R.W. Dibble, Jr., and George L. Dial, Jr., pro se.

Atty. Gen. T. Travis Medlock, Retired Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. William K. Moore and Larry C. Batson, Columbia, for respondents.

Michael H. Quinn, Joseph M. Arndt and Claire T. Manning, of Quinn & Smith, Columbia, for Richland County Bar Association, amicus curiae.

SANDERS, Chief Judge:

Appellants Dibble and Dial are lawyers appointed by the circuit court to represent Earl T. Hamaas in several civil actions which he brought against the State, complaining of circumstances attendant to his incarceration in the state penitentiary. The lawyers sought to be relieved of the appointment, contending that in requiring them to represent Hammas without compensation, the court deprives them of constitutional rights pursuant to the 14th and 5th Amendments of the United States Constitution. The judge below agreed Hamaas was not entitled to appointed counsel, but refused to vacate the order appointing Dibble and Dial. We remand.

It has been traditionally held that a lawyer, by accepting a license to practice law, becomes an officer of the court and assumes the obligation of representing, without pay, indigent defendants in criminal cases. Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); United States v. Dillon, 346 F.2d 633 (9th Cir.1965). For many years courts have viewed uncompensated service as a duty attendant to the public office which the lawyer voluntarily seeks. For this reason, the lawyer is not a private citizen being deprived of property without just compensation or due process. See, e.g., Dillon; cf. Hurtado v. United States, 410 U.S. 578, 93 S.Ct. 1157, 35 L.Ed.2d 508 (1973).

Dibble and Dial, however, correctly point out that the instant case differs from a criminal case where the person for whom counsel is appointed has a 6th Amendment right to representation which takes precedence over any 14th and 5th Amendment rights of appointed lawyers. They cite cases in other states which have held statutes requiring lawyers to serve as uncompensated counsel in civil cases to be unconstitutional. E.g., Bedford v. Salt Lake County, 22 Utah 2d 12, 447 P.2d 193 (1968). See also, Honore v. Washington State Board of Prison Terms and Paroles, 77 Wash.2d 660, 466 P.2d 485 (1970) (counsel is entitled to compensation). In addition, they cite decisions from other jurisdictions which tend to erode the traditional view that lawyers must serve without compensation even in criminal cases. State v. Green, 470 S.W.2d 571 (Mo.1971); Bradshaw v. Ball, 487 S.W.2d 294 (Ky.1972).

Dibble and Dial therefore argue forcefully that the court below abused its discretion by appointing them, without compensation, to represent a person who has no right to appointed counsel. The Richland County Bar appears Amicus Curiae and joins generally in their argument. The Bar cites, among other cases, Knox County Council v. State, 217 Ind. 493, 29 N.E.2d 405 (1940) in which the Indiana Supreme Court observes:

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. Id. at 29 N.E.2d 412.

We view this argument as what the French call a fausse idee claire--that is to say, an idea brilliantly illuminating, except that it is wrong. ¹

The issue here is obviously not one of whether the prisoner Hamaas has a statutory or constitutional right to a free lawyer. Indeed, it appears without question that he has none. ² Rather, the question before us is whether the court may appoint a lawyer for a litigant who has no legal right to counsel.

The function of lawyers in the administration of justice is manifestly more than merely to act as advocates for parties to disputes. Moreover, the advocacy system itself sometimes cannot operate to produce just results unless all sides of a dispute are competently represented. The various people who make up courts: bailiffs, clerks, court reporters, jurors and even judges, often play roles only secondary in importance to lawyers in causing justice to be done.

Courts have the inherent power to do all things reasonably necessary to insure that just results are reached to the fullest extent possible. State ex rel. Gentry v. Becker, 351 Mo. 769, 174 S.W.2d 181 (1943); see cases collected at West's General Digests, Courts, Key No. 27. Accordingly, we hold that this inherent power must necessarily include the power to appoint lawyers to serve without compensation where it appears reasonably necessary for the court to do justice. ³ Under such circumstances, lawyers benefit not only the litigants whom they represent, but all of society as well. The Indiana Supreme Court may see no difference between the services to society of green grocers, barbers, plumbers, etc., and the services of lawyers, but we do. It is possible, albeit inconvenient, for a civilization to exist without the services of these occupations, but a civilization is not possible without a competent system to administer justice. Lawyers are an integral and necessary part of such a system, at least as we know it in this country.

We are also not willing to abandon the historic distinction between occupations and professions, despite recent infusions of commercialism into the latter. As our Supreme Court held in In re Jacobson, 240 S.C. 436, 448, 126 S.E.2d 346, 353 (1962),

... the practice of law is a profession--not a business or skilled trade. While the elements of gain and service are present in both, the difference between a business and a profession is essentially that while the chief end of a trade or business is personal gain, the chief end of a profession is public service.

We further note Ethical Considerations 2-25 and 2-29 of Supreme Court Rule 32 which provide that it is the obligation of lawyers to render free legal services to those unable to pay. We know of no such legally enforceable rule applicable as a condition of licensure to green grocers, barbers and plumbers.

We are, at the same time, not unmindful of the position occupied by lawyers personally and as private citizens. We agree that it is unfair to cast on them, alone, the burden of serving the needs of the whole of society without compensation. Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761 (1975). Courts may have the inherent power to order that appointed lawyers be compensated from public funds, thus transferring this burden to the state where it properly belongs. We do not reach the matter of ordering compensation here because this question was not raised below. Murphy v. Hagan, 275 S.C. 334, 271 S.E.2d 311 (1980). However, we decline to join other courts which have refused to appoint lawyers until such time as compensation is made available from the states by their legislatures.

We are also aware that in ordinary civil cases the participation of lawyers is not...