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Court of Appeal, First District, Division 5, California.

Terry Val YARBROUGH, Petitioner, v. The SUPERIOR COURT OF NAPA COUNTY, Respondent, COUNTY OF NAPA, Real Party in Interest.


Decided: December 30, 1983

J. Roland Wagner, Wagner, Henderson, Davis & Robertson, Napa, for petitioner. No appearance for respondent. Stephen W. Hackett, County Counsel, R. Clifford Lober, Chief Deputy County Counsel, Napa, for real party in interest. Richard J. Moore, County Counsel, Kelvin H. Booty, Jr., Asst. County Counsel, County of Alameda, Oakland, John B. Clausen, County Counsel of Contra Costa County, Martinez, Douglas J. Maloney, County Counsel, John F. Govi, Deputy County Counsel, County of Marin, San Rafael, Ronald A. Zumbrun, Mark A. Wasser, Pacific Legal Foundation, Sacramento, for amici curiae on behalf of real party in interest. Fred H. Altshuler, Altshuler & Berzon, San Francisco, Richard A. Rothschild, Los Angeles, for amici curiae Bar Ass'n of San Francisco and the Lawyers' Club. Gerald F. Uelmen, Gary M. Mandinach, Criminal Justice, Los Angeles, for amicus curiae Cal. Attys. for Criminal Justice.

Terry Val Yarbrough is serving a term of 17 years to life in prison for second degree murder.   He is also a defendant in a civil action for the wrongful death of the victim.   In the civil action he moved for appointment of counsel to represent him.   The trial court denied his motion, apparently because it perceived that it lacked power to order compensation for counsel.   Yarbrough seeks review by petition for writ of mandate.   In light of Payne v. Superior Court (1976) 17 Cal.3d 908, 132 Cal.Rptr. 405, 553 P.2d 565, we conclude that the superior court was obliged to appoint counsel for Yarbrough even though the court may not order compensation.   We also comment on other questions implicit in the concept that attorneys may be required to serve without compensation in civil actions.

Yarbrough and one Cantrell argued outside a bar.   Yarbrough had a gun;  Cantrell was shot to death.   A jury convicted Yarbrough of second degree murder with a gun use enhancement and he was sentenced to prison.   Cantrell's minor son then sued several defendants, including Yarbrough, for damages for wrongful death.   Yarbrough was served in the civil action;  within time to answer, assisted for purposes of the motion by Napa County's contract public defender, he moved for appointment of counsel to represent him.   The motion appeared to contemplate (but did not expressly request) that Napa County should compensate the attorney appointed to represent Yarbrough.   Napa County (not otherwise a party to the wrongful death action) appeared and contested the motion on the ground that it was not required to compensate counsel appointed in these circumstances.   No other party took any part in the motion proceedings.

After briefing and argument, the trial court issued a document entitled “ORDER DENYING APPOINTMENT AND COMPENSATION OF COUNSEL” which incorporated findings that Yarbrough is an indigent prisoner, that he has been served with process as a defendant in the civil action, that the action is not spurious and can affect his interests, that the public defender's contract does not extend to this action and that the action “will involve extensive legal work and investigation which will place a serious burden upon any attorney appointed by this Court.”   No party questions these findings, which we accept for purposes of this writ proceeding.   Respondent court's order concludes:  “The Court further finds that it has authority to appoint counsel but does not have authority to order the COUNTY OF NAPA to provide any compensation or expense reimbursement to appointed counsel.”   Except to the extent implied by its caption, the document contains no direct denial of Yarbrough's motion for appointment of counsel, but it is apparent that the parties and respondent court itself understood that the motion had been denied.   It is also apparent that respondent court denied the motion because it concluded that if it could not order compensation for counsel, it would not appoint counsel.

Yarbrough then petitioned this court for “a Writ of Mandate appointing counsel for Defendant and for reasonable compensation for such counsel ․”  We issued the alternative writ.   Napa County filed a return.   Apart from Yarbrough, no party to the civil action has appeared in this proceeding.   We invited the State Bar of California and other attorney organizations to participate as amici curiae.   The State Bar has some of these issues under study, but is not yet prepared to state a position.   Several other bar organizations and attorneys have submitted amicus curiae briefs.

Narrowly viewed, the petition before us presents only two questions:  (1) Was the trial court empowered to order compensation for counsel appointed to represent Yarbrough in the civil action?  (2) If not, was respondent court nevertheless required, in light of its factual findings, to appoint counsel?

Payne provides answers which are straightforward and binding upon both respondent court and this court.   Respondent trial court lacked power to order compensation, but nevertheless was required to appoint counsel.

The Supreme Court held that as a matter of due process and equal protection under both federal and California constitutions a prisoner who, as a defendant in “a bona fide legal action threatening his interests,” is exposed to judicially sanctioned deprivation of property is entitled to access to the courts in order to have “ ‘a meaningful opportunity to be heard.’ ”  (Payne v. Superior Court, supra, 17 Cal.3d at pp. 914–924, 132 Cal.Rptr. 405, 553 P.2d 565.)   Subject to the qualification that a right of personal appearance alone “is not an appropriate remedy for prisoners seeking to defend a civil action” (id., at p. 923, 132 Cal.Rptr. 405, 553 P.2d 565), the Supreme Court leaves to the trial court's discretion the determination how access is to be given in particular cases.  (Id., at pp. 923–924, 132 Cal.Rptr. 405, 553 P.2d 565.)   The Supreme Court outlines the steps the trial court should follow (17 Cal.3d at pp. 924–925, 132 Cal.Rptr. 405, 553 P.2d 565.):

(1) The trial court should determine whether the prisoner is indigent.

(2) If so, the trial court should determine whether the access right can be provided for by continuing the matter until the prisoner is released from custody and therefore better able to make his own arrangements.

(3) If a continuance is not feasible, the trial court should determine both

(a) Whether “the prisoner's interests are actually at stake in the suit” in the sense that an “adverse judgment would affect his present or future property rights;”  and,

(b) “[W]hether an attorney would be helpful to him under the circumstances of the case.”   Given a positive answer to (a) the Supreme Court would apparently anticipate a negative answer to (b) only “if the prisoner is not contesting the suit against him, or any aspect of it.”

(4) If step (3) is reached and if both (a) and (b) are answered affirmatively, the court should appoint counsel.

(5) The trial court should also consider, at an appropriate time, whether the prisoner/defendant's legitimate interests also require that he be enabled to appear to testify in his own behalf.

Payne also makes clear that a trial court's duty to appoint counsel in an appropriate case is independent of its power to order compensation:  “The state ․ apparently assumes that if this court orders counsel appointed in certain cases, it will mandate that counsel be paid from public funds.   We do not assert such power.   If and how counsel will be compensated is for the Legislature to decide.   Until that body determines that appointed counsel may be compensated from public funds in civil cases, attorneys must serve gratuitously in accordance with their statutory duty not to reject ‘the cause of the defenseless or the oppressed.’  (Bus. & Prof.Code, § 6068, subd. (h).)”  (17 Cal.3d at p. 920, fn. 6, 132 Cal.Rptr. 405, 553 P.2d 565.)

 In this action, respondent court's findings follow the Payne outline, omitting only the question of continuance which, in the face of a 17-years-to-life sentence, is not a feasible alternative.   In response to our questions, Yarbrough and Napa County have agreed that respondent court should have appointed counsel to represent Yarbrough in the civil action.   Certain amici question respondent court's finding that Yarbrough could be helped by an attorney in this action, suggesting that his position is indefensible in light of the evidence and verdict in the criminal action.   The amount of damages recoverable, if any, is a significant issue, particularly where such a damage judgment might not be dischargeable in bankruptcy.   Trial courts should examine with care a defendant's assertions that his interests are “actually at stake” and that “an attorney would be helpful to him.”   We accept respondent court's Payne findings in this action.

 Yarbrough argues that respondent court can and must order the county to pay appointed counsel.   The county denies that it can be compelled to pay.   Payne resolves the issue in the county's favor.   Yarbrough argues that in Payne the Supreme Court did not deny the existence of power to order compensation, but simply declined to exercise the power.   But in a subsequent decision, the Supreme Court read Payne more broadly:  “Providing for appointed counsel for indigent prisoner defendants in Payne ․, this court expressly pointed out that we do not possess the power to require expenditure of public funds for the purpose.   Rather, attorneys are expected to serve gratuitously as part of their public responsibilities.”  (Jara v. Municipal Court (1978) 21 Cal.3d 181, 184, 145 Cal.Rptr. 847, 578 P.2d 94.)   Yarbrough also argues, accurately, that in the circumstances of Payne the discussion of compensation is dictum.   But in light of Jara, the dictum must be regarded as authoritative.   Absent legislation, respondent court lacked power to order the county, or any other public entity, to pay compensation for counsel appointed to represent Yarbrough.   This conclusion is supported by decisions of other Courts of Appeal.  (Cf., e.g., County of Tulare v. Ybarra (1983) 143 Cal.App.3d 580, 585–586, 192 Cal.Rptr. 49;  County of Los Angeles v. Superior Court (1980) 102 Cal.App.3d 926, 930–931, 162 Cal.Rptr. 636;  County of Fresno v. Superior Court (1978) 82 Cal.App.3d 191, 194–197, 146 Cal.Rptr. 880.) 1

An amicus proposes an innovative alternative to county funding.   Calling attention to Mandel v. Myers (1981) 29 Cal.3d 531, 174 Cal.Rptr. 841, 629 P.2d 935, the amicus argues that respondent court can order compensation for appointed counsel from the “operating expenses and equipment” budget of the California Department of Corrections.   When Mandel v. Myers came before the Supreme Court it had already been established (in Mandel v. Hodges (1976) 54 Cal.App.3d 596, 127 Cal.Rptr. 244), that the state, as a party defendant to the underlying action, was obliged to pay $25,000 on account of the plaintiff's attorney fees.   The Supreme Court determined in relevant part no more than that the trial court was empowered to order this preexisting state obligation paid out of the operating expense budget of an agency which had been a principal defendant in the underlying action.   To take this holding out of the context of the Mandel appeals and apply it in this action would be to beg the fundamental question here:  Whether in the first instance respondent court was empowered to order any public entity or agency to compensate counsel appointed to represent Yarbrough, pursuant to the judicial mandate of Payne, in a civil action in which no such entity has any other interest.   Were there some independent predicate for an order requiring the state to compensate counsel here, then conceivably Mandel v. Myers could be treated as an authoritative suggestion of a source from which such an order could be satisfied.   But Payne and Jara make clear that in the Supreme Court's view there will be no such predicate until a legislative body provides one.2

 Implicit in Yarbrough's arguments, and somewhat more explicit in certain of the amicus curiae submissions we have received, is a contention to the effect that while a court may be able to appoint an attorney to serve without compensation, it cannot compel him to do so.   Further, it is urged that the efficacy of the appointment will, as a practical matter, depend upon the attorney's willingness to serve.   We reject this contention.   If, as Payne and subsequent cases declare, California courts are empowered to appoint attorneys to serve without compensation in appropriate civil actions, then it follows that appointing courts can enforce their orders.   We are confident that such action will not be tested for we are most reluctant to assume that any attorney, as a professional person and an officer of the court, would refuse the court's explicit order appointing him or her to represent a litigant simply because the court did not and could not provide for compensation.   It is sometimes argued that to compel an attorney to serve without compensation is to impose involuntary servitude upon him or her, or to deprive him or her of property without due process of law.   Such arguments are both professionally unattractive and rationally unpersuasive.   An attorney is unique among other professionals.   An attorney is an officer of the court before which he or she was admitted to practice and is expected to discharge his or her professional responsibilities at all times, particularly when expressly called upon by the courts to do so.   Pursuant to Business and Professions Code section 6068, subdivision (h), an attorney shall not reject the cause of the defenseless or the oppressed.   On a more practical level it should be immediately apparent that an attorney's professional responsibilities represent a modest consideration for the valuable license entrusted to him or her.   In addition, every attorney has a real and immediate interest in maintaining the integrity of the adversary system by seeing to it that every good faith litigant, regardless of means, is adequately represented.

 Yarbrough points out that an attorney is professionally obliged to decline representations which he or she will lack the time and resources to pursue with reasonable diligence;  he cites Lopez v. Larson (1979) 91 Cal.App.3d 383, 400, 153 Cal.Rptr. 912 and Brown v. Pacific Tel. & Tel. Co. (1980) 105 Cal.App.3d 482, 487–488, 164 Cal.Rptr. 445.   The rule to which Yarbrough refers is particularly applicable to an attorney's decision to accept new fee-generating representations.   Where the representation is to be undertaken in discharge of a professional duty, at the express direction of the court, the attorney should be prepared, within reasonable limits, to give the required pro bono representation a priority for available time and to make time available to properly represent his client.   We foresee that the appointing court will take steps to assure that it does not appoint an attorney who cannot adequately discharge the responsibilities.   At the same time, we are confident that no attorney will confuse genuine press of existing practice with reluctance to undertake the required pro bono legal service.

Payne disposes of both questions directly raised by Yarbrough's petition.   This disposition leaves even more difficult questions to be answered.   For example:  How is an attorney for Yarbrough, to serve without compensation, to be selected?   Will that attorney be expected not only to give his or her time, but also to fund the out-of-pocket costs Yarbrough's defense may require?   It appears that Yarbrough intends to assert, as he did in the criminal action, that the gun discharged only because it malfunctioned and that the gun's manufacturer should bear at least a major part of the financial responsibility.   This kind of defense could require research, discovery and the employment of experts.   The difficulties of selection of appointed counsel, funding for costs and expenses, and questions of the scope of counsel's responsibilities are sharply focused in Yarbrough's case.

 The primary concern of a court called upon to appoint an attorney to represent an indigent prisoner must be to find an attorney qualified and able to give the prisoner adequate legal representation.   Trial courts have broad discretion in choosing the attorney, and the selection process is best handled at the local level by trial judges familiar with the issues, the needs of the indigent litigant, and the availability of attorneys in the area.   The State Bar maintains a complete record of addresses for all attorneys, regardless of their affiliation with local bar associations, including those employed by government agencies and private businesses.3  Qualified attorneys may be found in private practice, or as employees of government agencies or of private businesses.

It is one thing to call upon an attorney to give his or her time and advice without compensation.   It is quite another to ask the attorney to spend money without reimbursement as well.   It is a matter of practical reality that effective representation may require the attorney to obtain third party services from persons not subject to the attorney's professional obligations to the court and to the legal system.   For example, Yarbrough foresees a need to employ one or more weapons experts.   In addition to costs which could be recovered if Yarbrough is the prevailing party, it is probable Yarbrough's attorney will be called upon to incur costs which are not recoverable;  e.g., consultant fees, trial preparation costs and other expenses.   Must the attorney pay them without any realistic prospect of repayment?   The issue is not addressed in Payne, but it cannot be ignored.

To require the appointed attorney to bear this substantial financial burden would, in our view, overtax the professional predicate for the appointment.   But recent enactment of an in forma pauperis statute (Gov.Code, § 68511.3) and a detailed Judicial Council rule (Cal.Rules of Court, rule 985) thereunder may provide a workable alternative as to some costs.   Under Payne, the prisoner must demonstrate his or her indigence to be entitled to have counsel appointed.   The same showing should suffice under the new rule to support an application for waiver of (among other items) clerk's fees (rule 985(i)(1), (2), (3), (4)), sheriff's, marshal's and constable's fees (rule 985(i)(6)), certain reporter's fees (rules 985(i)(7), 985(j)(4)), jury fees (rule 985(j)(1)), certain interpreter's fees (rule 985(j)(2)), certain witness fees including fees for court-appointed experts (rule 985(j)(3), (5)), and, within the court's discretion, “[o]ther fees or expenses as itemized in the application” (rule 985(j)(6)).   It would behoove appointed counsel promptly to perfect an application under rule 985 for waiver or subsidization from court funds of all foreseeable and justifiable third party costs which can be waived.

Although the issue has not been briefed and the State of California is not presently a party to this action, Yarbrough's attorney might consider bringing a petition or an order to show cause against the Department of Corrections in this or a separate proceeding before the appointing court to determine if the Department of Corrections, which is responsible for meeting the constitutionally mandated needs and obligatory services to the incarcerated defendant, is legally responsible for the payment of necessary legal costs and expenses out of its budget.   Extraordinary travel, long distance calls, extensive copying, costs of depositions, discovery, advance of potentially recoverable costs, and other unusual expenses may be legitimate charges against the Department of Corrections' funds for inmate services.

 None of these approaches to the problem of out-of-pocket costs will extend to the appointed attorney's own office overhead.   We are sensitive to the contention that it is unfair to ask an attorney to donate not only his or her own time, but also, at his or her expense, the time of associates, paralegals, secretaries, the customary use of office space, word processors, copiers and telephones.   No practical solution immediately suggests itself.   Counsel must be called upon to absorb ordinary overhead costs not separately billed to the ordinary civil client and not otherwise waived by an in forma pauperis application.4

The duty of pro bono representation in this type of case may fall unequally on certain members of the bar.   This is a problem which courts cannot fully solve.   In appropriate civil actions, counsel must be appointed and, in the exercise of their broad discretion, appointing courts will seek to match as nearly as possible the abilities of appointed counsel to the requirements of the particular representation.   We cannot enforce uniformity of qualification or any universally satisfactory alternative procedure for spreading the duty of pro bono service evenly throughout the bar.   We are confident that the redress of inequities in allocation of the required pro bono service is well within the capabilities of the organized bar and of the trial judges.   Of necessity we must call on the organized bar to provide some of the solutions.

Let a peremptory writ of mandate issue requiring respondent superior court to appoint an attorney, in a manner consistent with the views expressed herein, to represent petitioner Terry Val Yarbrough in further proceedings in Napa County Superior Court action No. 44340, Cantrell v. Brass Rail Bar et al.

Pursuant to the doctrine of stare decisis, I concur.   We are bound by and must follow the decisions of the California Supreme Court.  (See Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   Given the findings of the trial court with regard to Mr. Yarbrough and this litigation, a failure to appoint counsel for him would be “a denial of access to the courts which violates his rights to due process and equal protection of the law under the state and federal constitutions.”  (Payne v. Superior Court (1976) 17 Cal.3d 908, 911, 132 Cal.Rptr. 405, 553 P.2d 565;  see also, Jara v. Municipal Court (1978) 21 Cal.3d 181, 145 Cal.Rptr. 847, 578 P.2d 94.)   I concur, however, with the hope that our Supreme Court will reexamine the issue of court appointment of counsel as it relates to the supplemental issues of compensation for counsel and of a source of costs for the actual expenses of litigation.   I believe it is appropriate for “․ the Supreme Court, which penned the novel, innovative and expansive teachings of Payne, [to] give us, the litigants and the bar proper directions in this regard.”  (County of Fresno v. Superior Court (1978) 82 Cal.App.3d 191, 197, 146 Cal.Rptr. 880.)

Before addressing the specific issues before us, it is appropriate to comment upon the historic role of the bar in providing legal services without charge to litigants who, as a result from financial inadequacy, would otherwise be precluded from pursuing or protecting their rights.   No profession in the United States has devoted itself so heroically to rendering free services to those unable to afford them as have the members of the organized bar.   Twenty years ago the federal government recognized the importance of providing extensive free legal services to those who needed them and funded a significant legal services program.   In retrospect the federal government may have perpetrated a cruel hoax by making available free legal services to those who needed them but who could not afford them, and then sharply reducing, if not virtually terminating, this essential service.   Just when poorer citizens were for the first time given a vehicle for the exercise of their legal rights, it is being withdrawn from them.   For this reason now, more than at any other time in our history, more lawyers are representing more low income clients without compensation.   This type of volunteer effort has been, should be, and hopefully always will be, a tradition of members of the bar in discharging their professional responsibility as officers of the court.   It should be clear that this concurring opinion does not suggest that the bar curtail or abandon its commitment to providing free legal services to those who cannot afford them, for this is a significant contribution to achieving a free society's most important goal, equal rights under the law for all of its citizens.   The tradition of lawyers volunteering their time and skill to provide pro bono services is to be encouraged and applauded.   I am confident this cherished heritage of the legal profession will continue to be fulfilled.

What this concurring opinion does suggest is that the time has come to recognize that government, including the judiciary, cannot expect to significantly increase the categories and numbers of legal actions in which citizens have a right to have a free attorney appointed to represent them and, at the same time, require such substantial representation to be provided free of charge as a professional responsibility.   In this case we are not referring to services a lawyer volunteers to provide with the knowledge this will not unduly interfere with his/her ability to earn a living while doing so.   Here we are talking about courts ordering an experienced attorney to represent an indigent involved in complex litigation, even though the effect of this order is to preclude the attorney from doing other work during those hours for which he/she would receive compensation.   If that were not bad enough, the appointed attorney will be compelled to personally bear all overhead expenses incurred for the hours expended for Mr. Yarbrough, whose case which will require prolonged legal services amounting to two or three months of the attorney's billable hours.   The straw that breaks the camel's back is that we call upon the attorney to provide effective representation in defending a case where effective representation compels the expenditure of funds for depositions, expert witnesses fees, travel, and consultants, yet we profess our inability to order anyone to reimburse the attorney for these expenditures.

No one would dare suggest courts have the authority to order a doctor, dentist or any other professional to provide free services, while at the same time telling them they must personally pay their own overhead charges for that time.   No crystal ball is necessary to foresee the public outrage which would erupt if we ordered grocery store owners to give indigents two months of free groceries or automobile dealers to give them two months of free cars.   Lawyers in our society are entitled to no greater privileges than the butcher, the baker and the candlestick maker;  but they certainly are entitled to no less.

What we are witnessing is the embarcation upon an era where categories of cases, numbering in the thousands, are being designated as cases in which one or more of the litigants has a constitutionally mandated right to free legal services if he/she cannot afford them.   It is ironic that the expansion of a constitutionally mandated right to legal representation is occurring in an era in which governmental funding to provide free legal services is being sharply reduced, with significant efforts being made to eliminate it completely.   Under Payne and Jara the burden of representation in such cases falls upon lawyers engaged in the private practice of law who are conscripted to fulfill a public function under compulsion of a court order which requires them to provide their professional services without any remuneration.   Thus, by court order, attorneys in private practice become public attorneys performing public functions with no compensation from the public whose obligation the attorney is discharging.

It is easy to illustrate the significant expansion of the right to counsel which has occurred.   In 1979 our Supreme Court held that an indigent defendant in a paternity action brought by a district attorney is entitled to the appointment of free counsel to defend that litigation.  (See Salas v. Cortez (1979) 24 Cal.3d 22, 154 Cal.Rptr. 529, 593 P.2d 226.)   In fiscal year 1982–1983, the district attorneys of California filed 28,201 paternity actions.   There is no record as to how many of these actions required appointment of counsel, but the sheer volume of them has undoubtedly required judges throughout California to order attorneys to serve in hundreds and probably thousands of such cases with no compensation.  (See County of Los Angeles v. Superior Court (1980) 102 Cal.App.3d 926, 162 Cal.Rptr. 636.)   In 1976 our Supreme Court expanded the right to counsel to indigent defendants in civil cases who are in prison.  (Payne v. Superior Court, supra, 17 Cal.3d 908, 132 Cal.Rptr. 405, 553 P.2d 565.)   In 1982 the people passed Proposition 8 adding section 28 to article I of the state constitution and providing that those who suffer losses as a result of criminal activity should have a right to restitution from the perpetrator of the crime.   In 1983 the Legislature passed Assembly Bill No. 493 (chapter 938) providing that civil actions against a defendant for damages caused in the commission of a felony for which the defendant has been convicted are entitled to priority within our court system.   At the same time the Legislature passed Assembly Bill No. 444 (chapter 408) to give an entirely new right to exemplary and punitive damages in wrongful death actions resulting from a homicide for which the defendant has been convicted of a felony.   Both pieces of legislation are part of the Crime Victim Restitution Program of 1983.   Assembly Bill No. 444 is particularly significant since it provides for exemplary and punitive damages which, of course, are not dischargeable in bankruptcy.

As a final illustration, at the very moment this opinion was being typed, the Judicial Council of California, pursuant to a recently enacted state law, issued a pamphlet containing information for victims of crime which includes a message from the Chief Justice of California informing citizens that victims of crime “may receive ․ damages in a civil lawsuit ․”  This pamphlet, to be distributed by probation and law enforcement officers to all victims of crime, whenever possible, informs them they “are able to sue the person who committed the crime.”   This is information about their rights which victims of crime should receive.   However, since most convicted criminals are sent to jail and are indigent, the initiation of such lawsuits, under Payne, will require court appointment of counsel to defend such suits.

Thus, it can be seen that we are substantially enlarging the categories (and within each category the number) of civil actions in which indigent defendants have a constitutionally mandated right to have an attorney appointed to represent them without charge.

The underpinnings of Payne and Jara are found in Business and Professions Code section 6068, subdivision (h), providing attorneys have the duty “Never to reject, for any consideration personal to himself, the cause of the defenseless or the oppressed.”   Our Supreme Court has interpreted this to mean that attorneys, as officers of the court, are expected to serve gratuitously as part of their public responsibilities although it can be argued (as amicus has pointed out) this provision merely sets forth the duty of attorneys never to decline to represent an unpopular cause or party.

“No doubt one might ask why one profession must provide free services which appear to be as important as those provided by other professions with full governmental financial support.”  (County of Tulare v. Ybarra (1983) 143 Cal.App.3d 580, 588, 192 Cal.Rptr. 49.)   This question deserves analysis by our Supreme Court.   If this is an obligation flowing from the license granted to lawyers to practice in California, why are lawyers the only professionals among all professions licensed by the State of California who are compelled to provide free services?   Mr. Yarbrough also has a right to a given level of medical care.   As a prisoner in the custody of the Department of Corrections, that department has the responsibility to provide him with such mandated health needs.   If his health required that he undergo open heart surgery, no doctor, as a factor of being licensed by the State of California, could be ordered by the court to perform that surgery without charge.   A right to a lawyer, constitutionally mandated by Payne, is of no less importance than health rights and cannot justify such a disparate result.

If Mr. Yarbrough has a right to counsel, he is entitled to effective representation, which can only be assured if reasonable compensation is paid to counsel.  “Effective representation today requires counsel experienced in the particular field of law involved.  [Citations.]  Yet to acquire this experience and maintain an acceptable level of competency in a given field of the law demands continuous study, application and practice.   We think the days are past when a lawyer could be expected to do this solely as public service.   If society is to demand representation by counsel in an expanding variety of proceedings and to insist on a high level of competency in the performance of such representation, then counsel should be paid.   Is it reasonable today ․ that appointed counsel will render his services for nothing?   We think not.”   (Luke v. County of Los Angeles (1969) 269 Cal.App.2d 495, 499, 74 Cal.Rptr. 771.)   Likewise it is not reasonable to compel an attorney to render valuable legal services to Mr. Yarbrough without being compensated for them.

It is timely to consider the reality of the commercial world in which the lawyer in private practice today must, of necessity, operate and ask:  Is it appropriate that lawyers be subject to court orders conscripting them to represent indigent clients and not be paid for those services?   Is this involuntary servitude?   Is it the taking of property (valuable legal services) without compensation in violation of due process of law?   If this obligation flows from the state bestowing a license upon them, is equal protection denied them when no other occupation licensed by the state can be compelled to contribute free services as a result of being licensed?

In ordering lawyers to provide free legal services we require lawyers to give their time and forego any dollars going into their wallets.   However, we must understand we are also taking the lawyer's time away from remunerative business, and, because a lawyer has a limited number of billable hours per day, we are depriving the lawyer of income which would otherwise be received.   However, the strongest reason for providing compensation for court appointed counsel is that unless we provide compensation, in reality, we are requiring the lawyer to expend his/her own funds and this we have neither the authority nor the power to do.

The day when a lawyer could earn his living practicing out of his hat are as extinct as the dodo bird.   There once was a time when attorneys had virtually no overhead.  “He did not have to purchase any complicated office equipment.   His library expenses were all almost nill.   He had no staff to pay.   Rent was low.   There was no such thing as telephone, jet transportation, and all the other enormous expenses that every busy practitioner encounters today.”   (Hunter, Slave Labor in the Courts—A Suggested Solution (July—August 1969) 74 Com. 3, 8.) 1  Today's attorney pays astronomical rent for office space, sizeable salary (including significant fringe benefits) for a highly skilled legal secretary, pays for expensive equipment such as copy machines, word processing equipment and computers, and must purchase and maintain an extensive (and expensive) law library.   High salaries of law clerks and paralegal assistants and huge premiums for professional liability insurance coverage are also expenses that the lawyer must pay as part of overhead.

In the legal profession, it is generally agreed that the expenses of operating a law office amount to 40% to 60% of gross fees.   Thus, if a lawyer charges $150 an hour, a fee common among experienced trial counsel in California, at least $75 of that goes to overhead.   Mr. Yarbrough's appointed counsel will, in effect, be defending a product liability case, since Mr. Yarbrough's defense seems to be that the gun that killed the victim was defective.   Under these circumstances, and considering the claim for punitive damages, it appears probable that the case will go through a jury trial.   Thus, it is likely that appointed counsel will be required to expend 300 hours, or more, of otherwise billable time.   Using $75 an hour as an overhead figure, simple mathematics tells us that appointed counsel, in addition to losing any money he/she would otherwise earn for himself/herself during those hours, would be required to pay $22,500 from personal funds for overhead expense.   Another way of looking at it is that Mr. Yarbrough's attorney will have to expend an additional 300 hours of billable time for a paying client, with absolutely no money going into his/her pocket, simply to pay the overhead cost attributable to Mr. Yarbrough's case.   Thus, we are not simply asking the appointed attorney to forego the flow of any dollars into his/her wallet, we are requiring him/her to pay thousands of dollars of overhead expense to keep his/her office operating during the time spent handling this case.   In the words of then United States Senator Sam J. Ervin, Jr., “the lawyer himself should not fear indigency while defending an indigent.”  (See Uncompensated Counsel:  They Do Not Meet The Constitutional Mandate (1963) 49 A.B.A.J. 435, 436.)

Some argue that the holding in Payne is limited to the right to counsel, and only inadvertently considered the issue of compensation for counsel.   If so, now is the time to consider this issue.   Even worse, and not discussed at all in Payne, is how Mr. Yarbrough's court-appointed attorney is going to properly represent his client without advancing his own funds for actual expenses necessary to provide effective representation.

Mr. Yarbrough may be collaterally estopped from denying liability in the wrongful death action because he has been convicted of the crime of murder of the victim.   It certainly seems clear he will not be the prevailing party in the civil action and therefore will be unable to obtain recoverable legal costs.   He cannot concede liability, however clear liability may be, because the claim for punitive damages, will require his counsel to dispute liability as vigorously as possible.   How is appointed counsel, serving without personal compensation and apparently required to personally pay the costs of overhead incurred during service to Mr. Yarbrough, going to obtain funds to conduct depositions, employ expert witnesses and consultants, and do everything else which is necessary to provide effective representation for Mr. Yarbrough?   If this were a case in which a lawyer in private practice was representing a paying client or an insurance carrier, counsel would require payment of several thousand dollars of costs by the client.   Are we asking Mr. Yarbrough's attorney to also pay these costs when he can never receive reimbursement for them?   I think not.

I have some doubt in this day and age that we can order an attorney to provide services without charge when we do not and cannot require this of any other licensed professional.   I am even more doubtful that we can order an attorney to accept a case which may require several hundred hours of professional time, and require the attorney to personally bear overhead expenses of thousands of dollars.   I have no doubt that we are without power to order court-appointed counsel to spend his or her own money for actual costs of Mr. Yarbrough's case with no possible source of repayment.   We are powerless to order other licensed professionals, such as doctors, to provide free services to Mr. Yarbrough and, even if we could, we certainly could not order the doctor to personally pay expenses necessarily incurred for X-rays or medications for Mr. Yarbrough.   Why is a lawyer different?

Superimposed on the personal financial hardship facing the attorney ordered to represent Mr. Yarbrough is the duty the attorney has in accepting such representation.   An attorney must decline to accept employment if not qualified to handle the case or, if qualified, if he/she has too heavy a caseload to devote the time necessary to properly represent Mr. Yarbrough.   In fact, counsel may have a duty to decline to represent Mr. Yarbrough if it will be impossible to provide effective representation with no funds available for the sizable costs and expenses which necessarily must be incurred in the defense of a case like this.

What is the answer?   What are the alternatives?

It is no answer to say, as implied in Payne, that we leave it to the organized bar to provide the solution.   This is the answer of the judicial ostrich with its head in the sand.

The doctrine of separation of powers provided in article III, section 3, of the California Constitution precludes one branch of government from exercising the powers of another branch.   However, the doctrine of separation of powers also precludes one branch of government from infringing upon and failing to adequately provide the resources for another branch of government to perform its constitutional functions.   For this reason, if appointment of counsel for Mr. Yarbrough is truly a judicial function, the legislative and executive branches of government should be required to provide sufficient funding to carry out this constitutional function.   It can be argued that the judicial branch has the inherent power to compel funding from other branches of government to carry out specified judicial needs.  (See Note, The Court's Inherent Power to Compare Legislative Funding of Judicial Functions (1983) Mich.L.R. 1687.

Our exposure to other alternatives to meet the constitutional mandate to provide Mr. Yarbrough with free legal counsel has been limited.   Our invitation to bar associations to file amicus briefs was declined by the two largest bar associations in the state.   The State of California is not a party to this proceeding and the role it should play, if any, in providing legal services to Mr. Yarbrough has not been briefed or argued.   It is clear Mr. Yarbrough is in the custody of the Department of Corrections of the State of California.   It is also clear, pursuant to Payne, he has a constitutionally mandated right to counsel in this case.   It would appear likely that the Department of Corrections must meet his legal needs and, rather than asking the superior court to appoint counsel to represent him, perhaps Mr. Yarbrough should take action against the State of California.   It may be that the Department of Corrections must provide the means to meet this constitutionally mandated right and may have to employ counsel for Mr. Yarbrough and pay all necessary expenses of defending this action.   Without the state as a party, these issues cannot be determined in this proceeding.   Since decisions of California's courts, passage of an initiative measure, and legislative enactments have combined to create the circumstances under which Mr. Yarbrough has a right to a free attorney to defend him herein, it may be that the State of California is the appropriate one to bear the expense required to meet the very need it has created.

Failure to meet Mr. Yarbrough's constitutionally mandated right to counsel may well subject the State of California to litigation over whether this failure violates his civil rights.  (See 42 U.S.C. § 1983;  Bounds v. Smith (1977) 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72.)

Our Supreme Court in Payne and Jara has decided that the separation of powers doctrine precludes the courts from ordering the state to pay fees for court-appointed counsel for Mr. Yarbrough.   Unless this decision is reexamined and a different conclusion reached, Mr. Yarbrough's best possibility of getting effective representation by an attorney who will be compensated for his or her services would appear to be to proceed against the Department of Corrections.   Jara and Payne preclude the courts from ordering other branches of government to pay the attorneys fees for appointed counsel.   Obviously, if the court cannot order another branch of government to pay for fees for appointed counsel, it is also powerless to order payment of actual costs, even though they are essential to present an effective defense.   However, Jara and Payne would not appear to be a deterrent to courts ordering the state to meet the constitutional mandated rights of prisoners in the custody of the Department of Corrections.

To paraphrase Abraham Lincoln, a lawyer has nothing to sell but his time.   The number of hours each day for which a lawyer can charge for services are limited.   Courts cannot order other professional or business persons to donate their time, their services, or their products, let alone their money.   Why is a lawyer different?


1.   This is not a case to which Code of Civil Procedure section 1021.5 (which authorizes an award of attorney fees “against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest”) would apply.

2.   We note that the issues of appointment of counsel to represent indigent litigants, and of compensation for counsel so appointed, have been presented to the Legislature in the context of anticipated cutbacks in funding for indigent legal services programs, and that the legislative response endorsed, as had Payne, the concepts (1) that any member of the bar might be so appointed, (2) to serve without compensation.   The Legislature listed factors similar to those suggested in Payne.   (Code Civ.Proc., § 285.4, effective January 1, 1984 [Stats.1983, ch. 279, § 3].)

3.   Neither Payne nor Jara, supra, discuss in detail the selection process.   It is easier under the Payne/Jara mandate to appoint attorneys who are actively engaged in the private practice of law.   The appointment of attorneys employed by governmental agencies or private businesses involves the rights of third parties—their employers.   In the case of government lawyers, the problem of requiring the expenditure of public funds prohibited by Payne and Jara is an issue.   For those and other reasons the problem of attorney selection is best resolved by the appointing trial court.

4.   The appointed lawyer's professional standard of conduct to his indigent client should be no different than his or her responsibilities to any other client.   The attorney must meet applicable standards of professional competence.   However, the constraints on the payment of extraordinary out-of-pocket expenses raise other issues of the lawyer's professional responsibilities and of the effective assistance of counsel that are not now before us (cf. Kim v. Orellana (1983) 145 Cal.App.3d 1024, 193 Cal.Rptr. 827).

1.   Speaking of slave labor in the courts, the judicial branch of government has been a part of the problem, not the solution.   At a time when death penalty cases are piling up on our Supreme Court's calendar, and the Chief Justice has had to issue a public plea for attorneys to come forward and represent those whose very life is at stake, the fee the courts have fixed for this representation is a penurious $40 an hour.   This rate not only fails to pay even the overhead expenses of the attorneys with the level of professional experience these cases deserve, but it is a lower hourly rate than that charged by the newest attorney admitted to practice law.   The failure to provide adequate compensation for appointed counsel in criminal appeals has boomeranged against the courts.   Because of this absurdly low hourly rate, the Governor has determined it is cheaper for the state to pay appointed counsel than to continue the relatively inexpensive operations of the office of the State Public Defender, whose work was of exceptionally high quality.   Substantial staff reductions in the State Public Defender's office leaves it unable to represent appellants before the Courts of Appeal in California, which in turn causes a substantial increase in the workloads of those courts.

LOW, Presiding Justice.

KING and HANING, JJ., concur.

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