Lawyers Have Long Recognized an Ethical Obligation To Represent Litigants Unable To Pay
“Courts have long recognized that attorneys, because of their profession, owe some duty to the court and to the public to serve without compensation when called on. [T]he obligation of the legal profession to serve indigents on court order is an ancient and established tradition, and . . . appointed counsel have generally been compensated, if at all, only by statutory fees which would be inadequate under just compensation principles, and which are usually payable only in limited types of cases.”
Source: United States v. Dillon, 346 F.2d 633, 635 (9th Cir. 1965), cert. denied, 382 U.S. 978, 86 S.Ct. 550, 15 L.Ed.2d 469 (1966); see Peterson v. Nadler, 452 F.2d 754, 758 (8th Cir. 1971).
This duty of public service is a condition of practicing law, and constitutes neither a taking under the fifth amendment, id. at 635-36; accord Dolan v. United States, 351 F.2d 671, 672 (5th Cir. 1965); see also Hurtado v. United States, 410 U.S. 578, 588-89, 93 S.Ct. 1157, 1163-64, 35 L.Ed.2d 508 (1973) (citing, inter alia, Dillon), nor involuntary servitude under the thirteenth amendment, see White v. United States Pipe Foundry Co., 646 F.2d 203, 205 n. 3 (5th Cir. 1981).
As a practical matter, we observe that the lack of court power to make mandatory assignments should not reduce the availability of counsel to needful indigent civil litigants under section 1915(d).
Lawyers have long recognized an ethical obligation to represent litigants unable to pay for such assistance. See, e.g., Model Code Professional Responsibility Canon 2, EC 2-25, 2-29, 8-3 (1980); Model Rules of Professional Conduct 6.1, 6.2 (1985).
As a court, we know of a number of attorneys and other legal resources that offer such services on a regular or occasional basis, and we have requested their assistance in representing indigent litigants on many occasions. If a court determines that a case has sufficient merit and a litigant sufficient need to justify uncompensated representation by counsel, we are confident that individual members of the bar will respect that decision and provide the needed services. Accord Rhodes v. Houston, 258 F. Supp. 546, 579 (D.Neb. 1966) (“To the credit of the legal profession, it may be declared that such a refusal will rarely occur.”) (emphasis in original), aff’d, 418 F.2d 1309 (8th Cir. 1969), cert. denied, 397 U.S. 1049, 90 S.Ct. 1382, 25 L.Ed.2d 662 (1970).
Other courts have made similar observations. See, e.g., Branch v. Cole, 686 F.2d 264, 266-67 (5th Cir. 1982) (citing Model Code of Professional Responsibility’s ethical obligations to provide representation to those who need it); Caruth v. Pinkney, 683 F.2d 1044, 1049 (7th Cir. 1982) (noting the broad commitment of the legal community to pro bono work for indigent litigants), cert. denied, 459 U.S. 1214, 103 S.Ct. 1212, 75 L.Ed.2d 451 (1983); Ray v. Robinson, 640 F.2d 474, 476, 479 (3d Cir. 1981) (recognizing the availability of aid from volunteers and law schools); Heidelberg v. Hammer, 577 F.2d 429, 431 (7th Cir. 1978) (“We ourselves requested counsel to serve on appeal.”); Gordon v. Leeke, 574 F.2d 1147, 1155 (4th Cir.) (Hall, J., dissenting) (noting state-funded program for assisting pro se inmate civil rights litigants), cert. denied, 439 U.S. 970, 99 S.Ct. 464, 58 L.Ed.2d 431 (1978); Scott v. Plante, 532 F.2d 939, 950 (3d Cir. 1976) (recognizing the availability of aid from volunteers and law schools).
“When the sovereign has on the one hand given an individual, purportedly as an incident of his citizenship, the privilege to go to court to adjudicate a specific claim, it should not allow that privilege to be effectively abrogated in the case of indigent litigants by lack of adequate legal assistance. Proceeding pro se, even in the presence of the most protective trial judge, the average litigant may waive certain privileges, fail to assert some essential fact or issue, or even enter into an unconscionable settlement for lack of knowledge of his full rights under the law.” Citing Fordham Law Review Volume 43 Issue 6 Article 4 1975 The Indigent’s “Right” to Counsel in Civil Cases Alan Jay Stein Pg. 1009
[T]he Fourteenth Amendment extends the protection of due process to property as well as to life and liberty. .”-as Justice Roberts (laying the Constitution alongside the claim) had noted apprehensively in 1942, while restricting the right to free criminal counsel. Betts v. Brady, 316 U.S. 455, 473 (1942). It was sensible of the Justice to reason that a general right to counsel in criminal cases must also affect the civil process. The right to a lawyer derives from the due process right to a hearing. Powell v. Alabama, 287 U.S. 45, 68 (1932). Its rationale was elaborated by Justice Sutherland in Powell v. Alabama: The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence… He lacks both the skill and knowledge adequately to prepare his defense, even though he [may] have a perfect one… Without [counsel], though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. Trying one’s own civil case is just as difficult. A civil trial is conducted under technical rules of evidence and procedure; it demands skill in marshalling and presenting facts. The Supreme Court has itself equated civil with criminal cases, en route to forbidding the states from barring any litigant’s hired lawyer from the court room: If in any case, civil or criminal, a… court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it… would be a denial of a hearing, and, therefore, of due process in the constitutional sense. Id. at 69. Cf. Chandler v. Fretag, 348 US. 3, 9 (1954).
In delimiting the right to representation by hired counsel, the Court has said that, inherently, any trial is so complex and involves such high stakes that courts must not “indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States, 315 U.S. 60, 76 (1942). Glasser was a Sixth Amendment case but the rationale of the right to counsel is the same under the Sixth Amendment and the Due Process Clause; see Johnson v. Zerbst, 304 U.S. 458, 463 (1938). But the right of appointment of counsel has been sharply restricted. – Before Gideon, judges in criminal cases with indigent defendants were asked to indulge in precisely the sort of “nice calculations” considered beyond their purview where a litigant had his own lawyer. To limit the right of appointment, the Court manipulated two factors: the complexity of the trial situation, and the defendant’s stake in the proceedings. Against the complexity of each case, it set off the defendant’s abilities to master it-his intelligence, youth, experience, etc. Further, the Court took into account what the defendant had to lose; it was quicker to require a lawyer in capital cases than in trials for lesser crimes. Hamilton v. Alabama, 368 US. 52, 55 (1961); Bute v. Illinois, 333 US. 640, 674 (1948). The Court never explicitly justified its different treatment of the rights of appointment and representation, perhaps because the real ground of distinction-the fact that a right of appointment costs public money while a right of representation gives due process at bargain prices-was too embarrassing to state. With Gideon, the Court finally attacked the gap between representation and appointment-at least in serious criminal cases It extended the Due Process Clause beyond the requirement that the client be allowed his money’s worth of legal services. The same extension should follow in the civil area. The Court’s own decisions on the right of representation foreclose any claim that counsel is inessential in civil trials. It remains only to add that if an affluent litigant cannot get a fair trial without a lawyer, an indigent litigant cannot either.”
“The right to a lawyer derives from the due process right to a hearing. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law.” Powell v. Alabama, 287 U.S. 45, 68 (1932) “
`Membership in the bar is a privilege burdened with conditions.’ [An attorney is] received into that ancient fellowship for something more than private gain. He [becomes] an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.” People ex rel. Karlin v. Culkin, 248 N.Y. 465, 470-471, 162 N.E. 487, 489 (1928) (citation omitted). “As an officer of the court, a member of the bar enjoys singular powers that others do not possess; by virtue of admission, members of the bar share a kind of monopoly granted only to lawyers. Admission creates a license not only to advise and counsel clients but also to appear in court and try cases; as an officer of the court, a lawyer can cause persons to drop their private affairs and be called as witnesses in court, and for depositions and other pretrial processes that, while subject to the ultimate control of the court, may be conducted outside courtrooms. The license granted by the court requires members of the bar to conduct themselves in a manner compatible with the role of courts in the administration of justice.” (Citing In re Snyder, 472 U.S. 634, 644 (1985)).
Finding that petitioners “inability to read, understand English, combined with denial of access to translation or legal assistance, can constitute extraordinary circumstances that trigger equitable tolling” Pabon v. Mahanoy 654 F.3d 385 (3d Cir. 2011)
(Where the law is not clear, it will often best serve the ends of justice to have both sides of a difficult legal issue presented by those in trained legal analysis.“; see also Parham, 126 F.3d at 459 (stating that while the ultimate issue appeared simple in this case, “comprehension alone does not equal ability to translate that understanding into presentation. While the ultimate issue may be comprehensible, courts must still look to the proof going towards the ultimate issue and the discovery issues involved.”) “The District Court has discretion to appoint pro bono counsel even when there is no motion to do so. Id. (Citing, 6 F.3d at 156.)