Mallard v. United States District Court for Southern District of Iowa/Concurrence Kennedy
Justice KENNEDY, concurring.
Our decision today speaks to the interpretation of a statute, to the requirements of the law, and not to the professional responsibility of the lawyer. Lawyers, like all those who practice a profession, have obligations to their calling which exceed their obligations to the State. Lawyers also have obligations by virtue of their special status as officers of the court. Accepting a court's request to represent the indigent is one of those traditional obligations. Our judgment here does not suggest otherwise. To the contrary, it is precisely because our duties go beyond what the law demands that ours remains a noble profession.
I join in full the opinion of the Court.
Justice STEVENS, with whom Justice MARSHALL, Justice BLACKMUN, and Justice O'CONNOR join, dissenting.
The relationship between a court and the members of its bar is not defined by statute alone. The duties of the practitioner are an amalgam of tradition, respect for the profession, the inherent power of the judiciary, and the commands that are set forth in canons of ethics, rules of court, and legislative enactments. This case involves much more than the parsing of the plain meaning of the word "request" as used in 28 U.S.C. § 1915(d). This case also does not concern the sufficiency of the lawyer's rea ons for declining an appointment  or the sanctions that may be imposed on an attorney who refuses to serve without compensation. There are, of course, many situations in which a lawyer may properly decline such representation. He or she may have a conflict of interest, may be engaged in another trial, may already have accepted more than a fair share of the uncompensated burdens that fall upon the profession, or may not have the qualifications for a particular assignment. As this case comes to us, however, the question is whether a lawyer may seek relief by way of mandamus from the court's request simply because he would rather do something else with his time. For me, the answer is quite plain.
A few weeks ago we held that the Virgin Islands Bar could not exclude nonresidents from its membership. See Bar- nard v. Thorstenn, 489 U.S. 546, 109 S.Ct. 1294, 103 L.Ed.2d 559 (1989). In that case, we expressly recognized the legitimacy of the bar's interest in requiring its entire membership to share in the burdens of providing representation to indigent defendants in criminal cases.  Id., at 557, 109 S.Ct. at 1299. That recognition reflects the fact that a court's power to require a lawyer to render assistance to the indigent is firmly rooted in the authority to define the terms and conditions upon which members are admitted to the bar, Frazier v. Heebe, 482 U.S. 641, 107 S.Ct. 2607, 96 L.Ed.2d 557 (1987); United States v. Hvass, 355 U.S. 570, 78 S.Ct. 501, 2 L.Ed.2d 496 (1958),  and to exercise "those powers necessary to protect the functioning of its own processes." Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 821, 107 S.Ct. 2124, 2145, 95 L.Ed.2d 740 (1987) (SCALIA, J., concurring in judgment). Cf. Sparks v. Parker, 368 So.2d 528 (Ala.) (rejecting constitutional challenges to compelled representation of indigent defendants), appeal dism'd, 444 U.S. 803, 100 S.Ct. 22, 62 L.Ed.2d 16 (1979). The lawyer's duty to provide professional assistance to the poor is part of the ancient traditions of the bar long recognized by this Court and the courts of the several States.  As Justice Field, then sitting on the California Supreme Court, declared more than a century ago:
"[I]t is part of the general duty of counsel to render their professional services to persons accused of crime, who are destitute of means, upon the appointment of the Court, when not inconsistent with their obligations to others; and for compensation, they must trust to the possible future ability of the parties. Counsel are not considered at liberty to reject, under circumstances of this character, the cause of the defenseless, because no provision for their compensation is made by law." Rowe v. Yuba County, 17 Cal. 61, 63 (1860).
Or, as Justice Sutherland declared for the Court more recently: "Attorneys are officers of the court, and are bound to render service when required by such an appointment." Powell v. Alabama, 287 U.S. 45, 73, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932).
Section 1915(d) embodies this authority to order counsel to represent indigent litigants even if it does not exhaust it. The statute was passed to give federal courts the same authority to allow in forma pauperis actions that the courts in the most progressive States exercised. In 1892, state courts had statutory authority to order lawyers to render assistance to indigent civil litigants in a dozen States, ante, at 304, and common-law power to appoint counsel in at least another 10 States.  Congress intended to "open the United States courts" to impoverished litigants and "to keep pace" with the laws of these "[m]any humane and enlightened States." H.R.Rep. No. 1079, 52d Cong., 1st Sess., 1-2 (1892). Congress also intended to ensure that the rights of litigants suing diverse parties in the most liberal of these States would not be defeated by the defendant's removal of the suit to federal court. Id., at 1. To be faithful to the congressional design of ensuring the poor litigant equal justice whether the suit is prosecuted in federal or state court, the statute should be construed to require counsel to serve, absent good reason, when requested to do so by the court. The Court's niggardly construction to the contrary departs from the enlightened laws that Congress intended to track and defeats Congress' beneficent purpose. 
I attach no particular significance to the difference, if any, between the ordinary meaning of the word "request" used in § 1915(d) and "assign" and "appoint" used in the various state statutes. See ante, at 302-303. The federal statute was introduced in the House and the Senate as an Act empoweringcourts to "assign" counsel for poor persons, 23 Cong.Rec. 5199, 6264 (1892), and uses the terms "assign" and "request" interchangeably. Significantly, it is entitled "An Act providing when plaintiff may sue as a poor person and when counsel shall be assigned by the court." Ch. 209, 27 Stat. 252. Every contemporary decision uses the word "assign" to describe the judge's authority to secure counsel for parties under § 1915(d). See Boyle v. Great Northern R. Co., 63 F. 539 (CC Wash.1894); Whelan v. Manhattan R. Co., 86 F. 219, 220-221 (CC SDNY 1898); Brinkley v. Louisville & N.R. Co., 95 F. 345, 353 (CC WD Tenn.1899); Phillips v. Louisville & N.R. Co., 153 F. 795 (CC ND Ala.1907), aff'd, 164 F 1022 (CA5 1908); United States ex rel. Randolph v. Ross, 298 F. 64 (CA6 1924). It is evident that the drafters of this statute understood these terms to impose similar obligations and simply assumed that members of our profession would perform their assigned tasks when requested to do so by the court.
The notion that this petitioner had an absolute right to have his "motion to withdraw" granted by the District Court-and therefore that a writ of mandamus may properly issue-is completely unacceptable to me. An attorney who has entered an appearance in a case may not withdraw without leave of court because the court's interest in making sure that a litigant is adequately represented and that the orderly prosecution of the lawsuit is not disrupted is paramount to a lawyer's personal interest in terminating a relationship with a client. See, e.g., Ohntrup v. Firearms Center, Inc., 802 F.2d 676 (CA3 1986); Mekdeci ex rel. Mekdeci v. Merrell National Laboratories, 711 F.2d 1510, 1521-1522 (CA11 1983). In this unique case the petitioner apparently filed his motion to withdraw without first entering an appearance-thus, the motion might more appropriately have been captioned as a "petition to be excused from performing a nonexistent duty to enter an appearance in a pending case." Indeed, the very fact that the petitioner considered it appropriate to ask the Magistrate to allow him to "withdraw" is evidence of his recognition of some duty to accept the appointment unless there was a valid excuse for declining it.
The program adopted by the District Court for the Southern District of Iowa to provide representation for indigent litigants was in operation when petitioner became a member of that court's bar. In my opinion his admission to practice implicitly included an obligation to participate in that program.  When a court has established a fair and detailed procedure for the assignment of counsel to indigent litigants, a formal request to a lawyer by the court pursuant to that procedure is tantamount to a command.
In context, I would therefore construe the word "request" in § 1915(d) as meaning "respectfully command." If that is not what Congress intended, the statute is virtually meaningless. There is no substance to the Court's speculation that Congress enacted this provision because of a concern that a court's requests to represent a poor litigant might otherwise be "disregarded in the mistaken belief that they are improper." Ante, at 308. There is no anecdotal or historical evidence to support this highly improbable speculation.  In my opinion Congress gave its endorsement to these judicial "requests," assuming that it would be "unthinkable"  for a lawyer to decline without an adequate reason.
I respectfully dissent.
^1 The petitioner tried to persuade the Magistrate that he had valid reasons for not wanting to represent convicted felons in litigation against their prison guards, but those reasons were found insufficient by the District Court, see App. to Pet. for Cert. 2a-3a, and this Court does not question the accuracy of that finding.
^2 We stated:
"The final reason offered by petitioners for Rule 56(b)'s residency requirements is somewhat more substantial, though ultimately unavailing. Under District Court Rule 16, each active member of the Virgin Island Bar must remain available to accept appointments to appear on behalf of indigent criminal defendants. According to the affidavit of the President of the Virgin Islands Bar Association, each member can expect to receive appointments about four times per year. Once appointed, it is the duty of the lawyer 'to communicate with the defendant at his place of incarceration as promptly as possible and not later than five days from the date of the clerk's mailing of the order of appointment.' Although the statute does not specifically so provide, the District Court interprets Rule 16 to require that only the appointed attorney may appear on behalf of the criminal defendant. The District Court found that, in light of this individual appearance requirement and the strict time constraints imposed by the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, it would be virtually impossible for this system of appointed counsel to work with nonresident attorneys.
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"As respondents point out, if handling indigent criminal cases is a requirement of admission to the Bar, a nonresident knows that he must either appear himself or arrange with a resident lawyer to handle the case w en he is unavailable. If the nonresident fails to make all arrangements necessary to protect the rights of the defendant, the District Court may take appropriate action. This possibility does not, however, justify a blanket exclusion of nonresidents." Barnard v. Thorstenn, 489 U.S. 546, 557-558, 109 S.Ct. 1294, 1301-1302, 103 L.Ed.2d 559 (1989) (citations omitted).
^3 See, e.g., Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 287, 105 S.Ct. 1272, 1280, 84 L.Ed.2d 205 (1985) ("Furthermore, a nonresident bar member, like the resident member, could be required to represent indigents and perhaps to participate in formal legal-aid work").
^4 Justice Cardozo stated for the New York Court of Appeals:
" 'Membership in the bar is a privilege burdened with conditions.' The appellant was received into that ancient fellowship for something more than private gain. He became an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice. His co-operation with the court was due whenever justice would be imperilled if co-operation was withheld. He might be assigned as counsel for the needy, in causes criminal or civil, serving without pay." People ex rel. Karlin v. Culkin, 248 N.Y. 465, 470-471, 162 N.E. 487, 489 (1928) (citation omitted).
Cf. E. Brown, Lawyers and the Promotion of Justice 253-254 (1938) ("Because the lawyer is bound by his professional oath to render gratuitous service to poor persons, it has long been customary for the court to assign counsel to those who cannot furnish their own attorney"); H. Drinker, Legal Ethics 62-63 (1963); R. Smith, Justice and the Poor 100 (1967) ("In addition to the inherent power of courts to assign attorneys, on the general theory that they are agents of the court and ministers of justice, there are statutes in many jurisdictions expressly conferring this authority on the judges, to be used in their discretion").
^5 See Rowe v. Yuba County, 17 Cal. 61, 63 (1860); Lamont v. Solano County, 49 Cal. 158 (1874); Elam v. Johnson, 48 Ga. 348 (1873); Hall v. Washington County, 2 Greene 473, 476 (Iowa 1850); Case v. Board of County Comm'rs of Shawnee County, 4 Kan. 511 (1868); State v. Simmons, 43 La.Ann. 991, 10 So. 382 (1891); Bacon v. Wayne County, 1 Mich. 461 (1850); Dismukes v. Board of Supervisors of Noxubee County, 58 Miss. 612 (1881); Johnston v. Lewis and Clarke County, 2 Mont. 159 (1874); House v. Whitis, 64 Tenn. 690 (1875); Dane County v. Smith, 13 Wis. 585, 587 (1861). See also Heckman v. Mackey, 32 F. 574 (CC SDNY 1887) (noting that "[t]he practice of allowing paupers to have original writs and subpoenas gratis, and to have counsel and attorney assigned them without fee, and to be excused from paying costs when plaintiffs, dates back to the reign of Henry VII"). In his treatise on Constitutional Limitations written in 1868, Professor Cooley wrote:
"[T]he humanity of the law has provided that, if the prisoner is unable to employ counsel, the court may designate some one to defend him who shall be paid by the government; but when no such provision is made, it is a duty which counsel so designated owes to his profession, to the court engaged in the trial, and to the cause of humanity and justice, not to withhold his assistance nor spare his best exertions, in the defence of one who has the double misfortune to be stricken by poverty and accused of crime. No one is at liberty to decline such an appointment, and few, it is to be hoped, would be disposed to do so." T. Cooley, Constitutional Limitations 334 (2d ed. 1871) (footnote omitted).
In a footnote, Cooley added:
"[A] court has the right to require the service whether compensation is to be made or not; and that counsel who should decline to perform it, for no other reason than that the law does not provide pecuniary compensation, is unworthy to hold his responsible office in the administration of justice." Id., at 334, n. 1.
^6 The Court's reliance on a recent law review article that casts doubt on the power of state courts to sanction attorneys who refused to represent indigents largely misses the point. In its present posture, arising on petitioner's request for a writ of mandamus, the question in this case involves a court's power to order an attorney to represent an indigent party, not its power to sanction an attorney who fails to obey that order. Justices Cardozo, Field, and Sutherland all recognized that a court has such power and, at the time § 1915(d) was enacted, the state courts routinely appointed counsel who were obliged to serve. It is that understanding, against which Congress legislated, rather than any "recent scholarship," ante, at 304, n. 4, that should guide our construction of this statute.
^7 "[R]epresentation of indigents under court order, without a fee, is a condition under which lawyers are licensed to practice as officers of the court, and . . . the obligation of the legal profession to serve without compensation has been modified only by statute. An applicant for admission to practice law may justly be deemed to be aware of the traditions of the profession which he is joining, and to know that one of these traditions is that a lawyer is an officer of the court obligated to represent indigents for little or no compensation upon court order." United States v. Dillon, 346 F.2d 633, 635 (CA9 1965), cert. denied, 382 U.S. 978, 86 S.Ct. 550, 15 L.Ed.2d 469 (1966), cited with approval in Hurtado v. United States, 410 U.S. 578, 589, 93 S.Ct. 1157, 1164, 35 L.Ed.2d 508 (1973).
^8 Nor is there substance to the Court's surmise that the passage of the Criminal Justice Act of 1964, 18 U.S.C. § 3006A, and related statutes, indicates that Congress did not intend in 1892 to give the courts authority to require attorneys to render assistance to the indigent. See ante, at 305-306. The Criminal Justice Act was enacted precisely because of defects in the system under which an attorney was n t "appointed to represent the needy defendant until he is arraigned" and the case was "then committed to an attorney who [would] receive no fee for his services or reimbursement for his expenses." S.Rep. No. 346, 88th Cong., 1st Sess., 12 (1963) (letter of Attorney General Robert F. Kennedy to President Kennedy).
^9 See Tr. of Oral Arg. 8. Justice Blackmar of the Missouri Supreme Court expressed precisely my sentiments in dissent from a decision denying the courts of that State the power to compel attorneys to represent indigents in civil cases:
"I have often served in court appointments, and I am sure that my brethren have also. When a judge said, 'help me out,' I really felt that I had no choice. Perhaps I had in mind the old army maxim that the commanding officer's desire is the subaltern's command. Perhaps I thought that the court could use its coercive power. I found, however, that judges were sensitive when good reasons for declining appointments were advanced, and were willing to explore alternatives. By issuing our absolute writ, we strip the respondent [the trial judge] of her bargaining power." State ex rel. Scott v. Roper, 688 S.W.2d 757, 773 (1985).