Discretionary appointment of counsel

An appellate court, later affirmed by the high court, held that trial courts have the inherent power to appoint counsel in any civil case.  In Ex parte Dibble, 310 S.E.2d 440 (S.C. Ct. App. 1983), two attorneys were appointed by the court to represent an inmate in a state penitentiary who had raised several civil actions against the state concerning his incarceration. The attorneys contested their appointment by claiming, first, that the inmate did not enjoy the right to counsel as a matter of law, and second, that the court could not require the attorneys to represent an indigent civil plaintiff without compensation. The attorneys claimed that the court appointment deprived them of constitutional rights pursuant to the 14th and 5th Amendments of the United South Carolina Constitution.

The court observed an Indiana decision that had ruled against appointment without compensation, but responded:

The Indiana Supreme Court may see no difference between the services to society of green grocers, barbers, plumbers, etc., and the services of lawyers, but we do. It is possible, albeit inconvenient, for a civilization to exist without the services of these occupations, but a civilization is not possible without a competent system to administer justice. Lawyers are an integral and necessary part of such a system, at least as we know in this country.

The court also recognized the importance of attorneys in attaining justice for indigents. “The function of lawyers in the administration of justice is manifestly more than merely to act as advocates for parties to disputes.”  The majority opinion argued for a stronger role for attorneys in serving the community’s broader needs, stating, “the practice of law is a profession- not a business or skilled trade…the chief end of a profession is public service.”

The Dibble court located the power to appoint a lawyer in civil cases in its own inherent power: “Courts have the inherent power to do all things reasonable necessary to insure that just results are reached to the fullest extent possible. Accordingly, we hold that this power must necessarily include the power to appoint lawyers to serve without compensation where it appears reasonable necessary for the courts to do justice.”  The court further noted that the appointed lawyers may “be compensated from public funds, thus transferring the burden to the state where it belongs.”

However, the court warned that “we would not require that lawyers be appointed to serve in every case.”  Instead, the court described a balance of equities in determining whether to appoint lawyers in civil cases:

Before a lawyer is appointed to serve against his will and without compensation, the court should first review the issues presented by the case and make a finding that the case is extraordinary because it appears appointment of counsel is necessary to render justice. The court should then determine whether the litigant is able to secure a lawyer on his own. A lawyer should be appointed only if the court finds that the litigant is not reasonably able to do so. These two findings, together with their legal and factual bases, should be set forth explicitly by the court in its order of appointment.

The court also described several other considerations that should be taken into account. Among these, courts should look into whether there is any public agency that is in a position to provide representation (e.g., legal aid or public defender’s office), or whether there are private lawyers or organizations willing to take the case as a pro bono matter. Finally, courts should give consideration to lawyers who are already on the public payroll.  The court also made clear that this analysis is unnecessary if an attorney appointment is mandated by statute. Finally, the court clarified that the case was not about whether an individual has a statutory or constitutional right to a free lawyer (“Indeed, it appears without question he has none.”) Instead, the court focused on whether a lawyer may be appointed and under what circumstances a lawyer may be appointed to represent an indigent party.

The Dibble holding has been affirmed by the Supreme Court of South Carolina. Ex parte Foster, 350 S.C. 238, 241, 565 S.E.2d 290, 291 (2002) (although court rule authorized appointment of GAL for prisoner, trial court appointed attorney instead; holding that “At the time this appointment was made, the factors to be considered in making such an appointment were outlined in Ex parte Dibble … Appellant rightly complains that the orders here are devoid of any discussion of the Dibble factors. We therefore reverse and remand the appointment order for reconsideration.”)