State v. Lynch

SIMMS, Justice,

dissenting:

Under our system of criminal jurisprudence, a licensed attorney finds himself in a very unique position. That lawyer is an officer of the court. And as such, is bound to render service when required by his or her appointment to represent an indigent defendant. Powell v. State of Alabama, 287 U.S. 45 , 53 S.Ct. 55 , 77 L.Ed. 158 (1982). However, he is not a “officer” within the ordinary meaning of that term. An attorney is not in the same category as marshals, bailiffs, court clerks or judges. A lawyer is engaged in a private profession, important though it be to our system of justice. As Justice Cordoza stated for New York Court of Appeals in People, ex rel., Karlin v. Culkin, 248 N.Y. 465, 470-471 , 162 N.E. 487, 489 (1928):

“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 cooperation with the court was due whenever justice would be imperiled if cooperation was withheld. He might be assigned as counsel for the needy, in causes criminal or civil, serving without pay.”

In his treatise on Constitutional Limitations 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 someone to defend him and 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 *1174 cause of humanity and justice, not to withhold his assistance nor spare his best exertion 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 Limitation 334 (2nd Ed. 1871).

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 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,., 334, note 1.

Oklahoma’s legislature embraced the philosophy of Cooley and Cordoza in enacting Title 5, O.S.1981, § 3 which reads, “It is the duty of an attorney and counselor: 7th. never to reject for any consideration personal to himself the cause of the defenseless or the oppressed.” In other words, because of this unique relationship a lawyer enjoys with our system of criminal justice, fulfilling his legally recognized duty to render services when required by an appointment to represent an indigent defendant, cannot to me, be described in most instances in terms of a taking of his “property” without due process of law.

I can find no compelling reason why Bias v. State, Okl., 568 P.2d 1269 (1977) should not be applied in his case, thereby avoiding the award of extraordinary compensation on so-called constitutional grounds. Under Bias , Pyron and Mattingly are entitled to be reimbursed for extraordinary expenses. We pointedly held there, that:

“Prospectively, in order to obtain a compensation award above the statuatory amount a lawyer must prove thru clear and convincing evidence that (1) all extraordinary actions were taken in good faith, (2) all extraordinary work performed was necessary, (3) he is unable to maintain his practice, and (4) reasonableness of extraordinary fee.”

I would Simply remand this action to the trial court for consideration under the guidelines of Bias and, under proper findings by the trial court, the extraordinary expenses should be approved for payment by the Chief Justice from the State Judicial Fund.

I must also voice my opposition to the approach taken by my colleague, Vice Chief Justice Opala, in his special writing. He has recommended legislative action to establish a state-wide public defender system and in the interim, call upon the Oklahoma Bar Association to establish a pool of attorneys subject to appointment on a state-wide basis. Although a state-wide public defender system would be an acceptable solution, what is most disturbing is that my colleague would make that system a part of the Executive Branch of Government. 1

In Ferri v. Ackerman, 444 U.S. 193 , 100 S.Ct. 402 , 62 L.Ed.2d 355 (1979), Mr. Justice Stevens observed:

“There is, however, a marked difference between the nature of counsels responsibilities and those of other offices of the court. As public servants, the prosecutor and the judge represent the interest of society as a whole. The conduct of their official duties may adversely affect a wide variety of individuals, each of whom may be a potential source of future controversy....”

“In contrast, the primary office performed by appointed counsel parallels *1175 the office of privately retained cousel. Although it is true that appointed counsel serves pursuant to statuatory authorization and in furtherance of the federal interest in insuring effective representation of criminal defendants, his duty is not to the public at large, except in that general way. His principal responsibility is to serve the undivided interest of his client. Indeed, an indispensible element of the effective performance of his responsibilities is the ability to act independently of the Government and to oppose it in adversary litigation.”

My fear is that making a public defender a part of the executive branch of government places a lawyer in the position of serving two masters, i.e., the State of Oklahoma, and in a conflicting way, the interest of his client. I would not, under any circumstances, make a state-wide public defender system anything other than a totally independent body. If the legislature decides, after an impact study as to the funding of such a system, which undoubtedly would be considerable, that this state is ready for such a system, it should place such a defender system under the umbrella of the “The Oklahoma Public Defender System” created in 1988 by the enactment of 22 O.S.Supp.1988, § 1355, or more preferably, maintain the system as an arm of the Judicial Department of government.

In addressing the Pontotoc County Bar case, they do not object to being appointed to represent indigent defendants so much as to the fact they are not being adequately compensated. What may or may not be adequate compensation might vary from legal mind to legal mind. If the guidelines of Bias are met, however, by any attorney within the petitioning Bar Associations in making a claim for extraordinary expenses, I see no reason why the claim should not be approved.

The majority today ties the amount of fees to be awarded to counsel for indigent defendants to the hourly rate fixed for prosecutors. I think this is premature and unsupported. Not only are we without the empirical data of the impact of a state-wide public defenders system as suggested by my brother Opala, likewise we are without such data when it comes to establishing a state-wide hourly rate for lawyers, whose function is entirely different from that of the appointed counsel. Ferri v. Ackerman, supra.

We should direct the Legislature’s attention to the Criminal Justice Act' which the Congress of the United States enacted, 18 U.S.C. § 3006A titled “Adequate Representation of Defendants”. This bill underwent careful scrutiny by both the House of Representatives and the Senate Judiciary Committee. See, Ferri v. Ackerman, supra, notes 15 and 16 at 100 S.Ct. page 407. Section 3006A closely parallels the Oklahoma scheme in certain respects. It provides for a $3500.00 cap to be paid to an attorney or defender organization in each case where one or more felonies are charged, with a provision for waiving the maximum amounts where it is shown the excess payment is necessary to provide fair compensation, and the payment is approved by the Chief Judge of the Circuit. Bias, supra, recognizes that excess payment may be necessary to provide compensation and this could only be done by order of the trial judge, with the approval of our Chief Justice. The federal act further provides for a uniform hourly rate for time expended in court or before a magistrate and a uniform hourly rate for time expended out of court. I would submit that enactment of a state statute closely paralleling 18 U.S.C. § 3006A, might be a simple and direct answer to the problems raised by the majority opinion in this case.

We should emphasize that the solutions to these problems are within the expertise and proper power of the Legislature and not this Court.

. The Supreme Court has repeatedly indicated that it is the duty of the trial court, not the executive branch of government, to see that an indigent defendant’s Sixth Amendment right to counsel is protected.

In Powell v. Alabama, the Court said:

"The duty of the trial court to appoint counsel under such circumstances is clear, as it is clear under circumstances such as are disclosed by the record here; and its power to do so, even in the absence of a statute, can not be questioned. Attorneys are officers of the court, and are bound to render service when required by such an appointment. See Cooley, Constitutional Limitations, supra, 700 and note.

The United States by statute and every state in the Union by express provision of law, or by the determination of its courts, make it the duty of the trial judge, where the accused is unable to employ counsel, to appoint counsel for him.” 287 U.S., at 75 , 53 S.Ct., at 65 .