Bothwell v. Republic Tobacco Co., 912 F.Supp. 1221 (1995)
Author: Anonymous

Facts: While incarcerated, Bothwell, filed a complaint, motion to proceed in forma pauperis and appointment of counsel involving a civil suit against a tobacco company.  He claimed that he attempted to find private counsel, but that failed, and after a series of withdrawals and appointments of substitute counsel, the judge appointed an attorney.

Issue: Whether the federal courts posses the inherent power to require an unwilling attorney to accept appointment?

Holding: Yes.

Procedure: Atty filed brief in support of motion to reconsider and vacate the order appointing her;

Rule: 28 USC 1915–a court may request an attorney to accept a court appointment.

Rationale: There is no constitutional provision for compelling an attorney to represent a client in a civil matter.  Congress has not codified compulsory service of attorneys to represent indigent litigants.  Service to the indigent is an essential characteristic of any ethical attorney because 1) providing legal services to the poor is a critical role of the lawyer in ensuring a fair and just adjudication of disputes, and 2) if society is to have a legitimate civil justice system, the courts must be empowered to take necessary measures to create and maintain it, and 3) attorneys hold the exclusive key to meaningful participation in a branch of government and the protection of rights.  If public confidence in the system wanes, people will find other, less civil, methods of resolving their differences.  Thus, attorneys occupy a unique role in preserving the ordered liberty included in the concept of “domestic tranquility,” vital to preserving the third branch.  There is ample historical and theoretical justifications for the existence of the inherent power to compel an attorney to provide legal services to an indigent litigant.  In so deciding, the court must use restraint and discretion based on the concept of necessity–to bring about a fair and just adjudicative process.  The mere existence of indigency as a condition of a litigant is not solely the criteria in deciding to appoint counsel in a civil case.

Pl (Bothwell): The court has the authority, under ethical rules, to appoint counsel when the status of the litigant is indigent, to ensure a fair and just legal process.

Df (Atty): The court’s order appointing her as counsel is contrary to “law and clearly erroneous” because “a federal court has no statutory or inherent authority to force an attorney to take an ordinary civil case for no compensation.”