Can’t Force Lawyers to Work Free, Court Rules

Lawyers cannot be forced to work for free, the 2nd District Court of Appeal has ruled, tossing the controversy over payment of attorneys appointed to represent indigent clients in civil cases back to the state Supreme Court.

If a county or the state cannot find a lawyer willing to donate his services, or cannot pay an appointed lawyer to defend an indigent, the court’s Ventura division ruled, then authorities must dismiss the case.

“We conclude that to require (an attorney) to provide legal services without compensation,” wrote Justice Arthur Gilbert, with the concurrence of Justices Steven Stone and Richard Abbe, “is to deny him equal protection of the law.”

Not Guilty of Contempt

The 42-page opinion cleared Ventura attorney Judson Cunningham of contempt of court and excused him from defending Manuel J. Martinez in a paternity case. Ventura County had sued Martinez to obtain support for a child on welfare.

Cunningham was appointed last Feb. 3 by Ventura County Superior Court Judge Allan Steele to represent Martinez pro bono-- for the public good, or without pay. The attorney was held in contempt last March 28 when he refused to do so.

Although Ventura has a system under which willing attorneys voluntarily handle various civil cases for free, Cunningham clearly was unwilling. He said he was a personal injury lawyer and knew nothing about paternity cases. In a case that became quite controversial in the legal community, the state Supreme Court last July reaffirmed a 10-year-old ruling which stated that lawyers can be conscripted to defend certain indigents in civil cases. (Pay from county funds has long been established for attorneys appointed by courts to represent indigents in criminal matters.)

Issue Not Addressed

But the high court ducked the question of whether those lawyers must be paid or who should pay them.

“Although (the July decision) placed the question of whether a court may appoint an unwilling attorney to represent an indigent on the ‘judicial back burner,’ ” Gilbert wrote, quoting now-retired state Supreme Court Justice Otto Kaus’ exact wording, “the issue is now boiling over.”

Singling Cunningham out, the justices agreed with the lawyer in the opinion, issued last Friday and released Wednesday, that he was clearly denied his constitutional right to equal protection.

Giving Up Livelihood

“An attorney who is appointed to represent an indigent without compensation is effectively forced to give away a portion of his property--his livelihood,” Gilbert wrote. “Other professionals, merchants, artisans, and state licensees are not similarly required to donate services and goods to the poor.”

The justices indicated that the state may share responsibility with counties for paying attorneys in such paternity cases because the cases are made possible by the state Welfare and Institutions Code.

“If the state does not wish to appropriate funds sufficient to pay for appointed counsel,” the opinion stated, “it cannot expect the legal profession to fill the void by subsidizing a cost that should be borne by the tax-paying public.”