[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

PIESTER, Magistrate Judge. . . .
In March 1994 plaintiff Earl Bothwell, who at the time was incarcerated at the
Hastings Correctional Center, submitted to this court a request to proceed in forma
pauperis, a civil complaint, and a motion for appointment of counsel. . . .
In his complaint plaintiff alleged that he “immediately ceased” purchasing and smoking
factory-manufactured cigarettes after Congress enacted the Federal Cigarette Labeling and
Advertisement Act of 1969 (“FCLAA”), 15 U.S.C. § 1333 et seq, which mandated that a
warning label be conspicuously placed on packages of such cigarettes. Plaintiff alleged that
he thereafter switched to “roll your own” cigarettes, which were not covered by the
FCLAA. . . . Plaintiff alleged that he switched to the defendants’ products on the belief
that, because the government had not mandated warning labels on loose tobacco and
because the defendants had not voluntarily issued such warnings, those products were not
harmful or hazardous. Plaintiff alleged that in 1986 he became aware that he suffered from
emphysema, asthma, heart disease, and “bronchial and other respiratory diseases.” He later
learned that the loose tobacco products he had been using “were stronger that [sic] [factoryproduced]
cigarettes and were twice as harmful and deadly.” . . .
In her brief in support of her motion to reconsider and vacate, Metcalf contends that
my 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.”
Statutory Authority
Insofar as concerns statutory authority, Metcalf is correct. Plaintiff in this case is
proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(d). In Mallard v. U.S. Dist.
Ct., 490 U.S. 296 (1989), the United States Supreme Court held, in a 5-4 decision, that
section 1915(d) does not authorize a federal court to require an unwilling attorney to
represent an indigent litigant in a civil case. In so holding, the Court focused on the
language of section 1915(d), which provides that a court may “request” an attorney to
accept a court appointment. . . . However, the Court in Mallard left open the question of
whether federal courts possess the inherent power to require an unwilling attorney to accept
an appointment. . . .
Inherent Authority . . .
Since its inception the federal judiciary has maintained that federal courts possess
inherent powers which are not derived from statutes or rules. These inherent powers vest in
the courts upon their creation . . . .
[T]he power to conscript lawyers to represent the indigent . . . exists for two primary
purposes: (1) to ensure a “fair and just” adjudicative process in individual cases; and (2) to
maintain the integrity and viability of the judiciary and of the entire civil justice system.
These two purposes mirror the dual functions that lawyers serve in the civil justice system.
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