stating that "Indiana case law presumptively treats `shall' as mandatory ... unless it appears clear from the context or the purpose of the statute that the legislature intended a different meaning."
How later courts described this case
- stating that "Indiana case law presumptively treats `shall' as mandatory ... unless it appears clear from the context or the purpose of the statute that the legislature intended a different meaning."
- stating that courts must respect a statute’s plain language and finding no evidence that the legislature used an “unusual or stylized meaning of a No. 08-1478 13 commonly understood word”
- observing that when deciding to appoint counsel pursuant to Indiana Code Section 34-10-1-2 "the trial court is obliged to consider whether any specific fiscal or other governmental interests would be severely and adversely affected by a Trial Rule 60.5 order requiring payment of any appointed counsel."
- stating that “cases that have then-own ability to fund counsel are another general category where appointed counsel may be inappropriate.”
Written by the judges who cited it.
The opinion
*167 DICKSON, Justice,
concurring and dissenting.
I agree with the majority's position in parts I (finding that Ind.Code § 34-10-1-2 requires appointment of counsel) and II (regarding the procedure for the appointment of counsel under Ind.Code § 34-10-1-1 and § 34-10-1-2). However, I respectfully dissent from part III of the majority's opinion, which holds that counsel appointed under these provisions must be compensated. I also disagree with seetion IV of the majority's opinion to the extent that it relies on the majority's holding in section III.
The history of the challenged statute can be traced back almost to statehood. An 1818 statute provided that every poor person who has a cause of action or is a defendant in any suit shall pay nothing for subpoenas and other legal processes, and that the court:
shall assign to him or her counsel, learned in the law, and appoint all other officers requisite and necessary to be had for the speed of the said suit, who shall do their duties without any reward for their service, help and business in the same; and if any counsel so assigned as aforesaid, shall take or receive any fee or reward therefor, either directly or indirectly, he shall forfeit and pay the sum of five hundred dollars, to the use of the party aggrieved, to be recovered by action of debt, with costs of suit.
Laws of Ind. 1818, ch. XIV, § 20 (emphasis added). By 1848, the applicable provision required that upon determination that an applicant is a poor person, the court "shall admit him to prosecute or defend as a poor person, and shall assign him counsel and attorneys, and all other officers requisite for prosecuting or defending his suit, who shall do their duty therein without taking any fee or reward therefor." Rev. Stat. of Ind. 1848, ch. 40, § 68 (emphasis added).
During the ensuing 183 years since the statute's precursor, only one case has addressed whether a lawyer is entitled to payment of fees by the court or county. In 1899, this Court held that a county may not be compelled to compensate a lawyer appointed to represent a poor person in a civil action. In that case, Board of Commissioners of Howard County v. Pollard, 153 Ind. 371 , 55 N.E. 87 (1899), this Court considered a statute essentially the same as the one under consideration today. The Court looked to the language of the statute and refused to "add to the statute the qualification that the fees of the attorney shall be allowed by the court, and paid by the county. Such a construction would, in our opinion, open the door to grave abuses, and might subject the revenues of the county to serious drains." Pollard, 153 Ind. at 374 , 55 N.E. at 88 . Pollard has never been overruled. 1
In finding that appointed attorneys are entitled to compensation, the majority relies on language in the Indiana Constitution: "[njo person's particular services shall be demanded, without just compensation." Inp. Const. art. 1, § 21. In Bayh v. Sommenburg, 573 N.E.2d 398, 411 (Ind.1991), however, this Court explained that Section 21 applies only to "particular services," and that when the constitutional convention debated the meaning of the *168 word "particular" as used in that provision, "(ilt is clear that the framers did not intend this clause to create new rights to compensation for services provided to the state that had gone historically uncompensated." Bayh, 578 N.E.2d at 418. In fact, the delegates considered and rejected using the word "personal" instead of "particular," several arguing that "its breadth would prevent the State from requiring citizens to perform certain duties previously provided gratuitously." Bayh, 578 N.E.2d at 412-18. When the phrase "particular services" was placed in our Constitution, attorneys who served as court-appointed representatives of indigent civil clients were not compensated. There is nothing in the history surrounding the adoption of our Constitution that suggests that Section 21 was intended to change the then-prevailing practice. Because, as Bayh emphasizes, Section 21 was not intended to create new rights to compensation, and because, when Section 21 was adopted, attorneys appointed to represent poor persons in civil cases were not entitled to compensation, we should not now expansively construe Section 21 to provide unintended new constitutional rights. The representation of a civil litigant is not a "particular service" that requires compensation under Article 1, Section 21 of the Indiana Constitution.
The majority opinion manifests concern that the entitlement of lawyers to compensation should be equated with that of grocers, physicians, barbers, plumbers, electricians, mechanical engineers, ete. The special obligation of providing free legal service to indigent clients, however, is directly related to what makes lawyers different. In addition to rendering professional services with an expectation of fair compensation, lawyers are also officers of the court. This obligation to the public is an inherent aspect of being a lawyer. It comes with the territory. Construing the challenged statute to require lawyers to render services without compensation does not lessen the protections of Article 1, Section 21 that prohibit the government from demanding services of persons in other professions and occupations without just compensation.
Reflecting language used in its earlier incarnations dating back to 1818, Indiana Code § 34-10-1-2 requires that attorneys, as officers of the court, "do their duty in the case." Contemporaneous with the adoption of the present Indiana Constitution, the General Assembly enacted a statute listing the duties of an attorney, including: "Never to reject, from any consideration personal to himself, the cause of the defenceless or oppressed." Rev. Stat. of Ind. 1852, vol. 2, pt. 2d, ch. 1, art. XLV, § DCCLXXI (J.J. Bingham 1870). This duty has remained to this day and is expressly included in our present Oath of Attorneys. Ind. Admission and Discipline Rule 22. Upon admission to the practice of law, every Indiana attorney takes an Oath to "never reject, from any consideration personal to myself, the cause of the defenseless or oppressed." Id. In addition, the Preamble to the Indiana Rules of Professional Conduct states, "A lawyer should be mindful ... of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time ... in their behalf." Indiana Professional Conduct Rule 6.1 declares: "A lawyer should render public interest legal service.... [Bly providing professional service at no fee or a reduced fee to persons of limited means...."
I strongly disagree with the majority's apprehension regarding the willingness and capacity of Indiana lawyers to voluntarily meet the need for indigent legal services. The lawyers and judges of this state have created, funded, and are imple *169 menting a unique and comprehensive new program to place indigent clients with volunteer lawyers. This plan, embodied in Indiana Professional Conduct Rule 6.5, expressly seeks "[to ensure statewide access to high quality and timely pro bono civil legal services for persons of limited means." ProfiCond.R. 6.5(@)@8). This Court adopted Professional Conduct Rule 1.15(d), creating Indiana's IOLTA program (Interest on Lawyers' Trust Accounts) for the purpose of providing funds to administer the Indiana voluntary pro bono program. I have full confidence that Indiana's lawyers, especially with the administrative assistance of the pro bono program created and funded under these rules, can and will fulfill their obligation to provide the necessary free legal services.
I believe that lawyers who accept appointments to represent indigent civil litigants under Indiana Code § 34-10-1-2 are not entitled to demand compensation from either their clients or from the government. From Indiana's earliest days as a state, our laws have required its judges to appoint lawyers for indigent civil litigants, and for the lawyers appointed to do their duty without compensation. Article 1, Section 21 of the Constitution was crafted with this understanding. Then as now, attorneys understand and agree that they are expected to "do their duty in the case" which includes to "never reject, from any consideration personal to myself, the cause of the defenseless or oppressed." We should not undermine these principles.
. The majority notes Knox County Council v. State ex rel. McCormick, 217 Ind. 493 , 29 N.E.2d 405 (1940), but this case did not involve a claim for legal fees in a civil case. Rather, it involved two attorneys defending a poor person charged with murder. The Knox Circuit Court had granted them attorney fee allowances, but the County Auditor refused make payment. McCormick, like the cases upon which it relies, does not decide whether attorneys in civil cases must be compensated. These cases do not overrule Pollard.