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

fair and just adjudication of disputes, and the need for such advocacy in ensuring the
existence of the system.
Second, these obligations are not self-executing. . . . It makes little sense to give only lip
service to these ideals while the legitimacy of the court system is being challenged by other
means of resolving private disputes. If our society is to have a legitimate civil justice system,
the courts must be empowered to take necessary measures to create and maintain it. In a
more genteel and public-spirited time, the mere suggestion by a court that a private
attorney should provide free representation might be met with acceptance of the duty as a
necessary means to ensure fairness and the justice system itself; perhaps that history
contributes to the lack of mandatory requirements today. . . .
Necessity of Exercising Authority
In deciding whether to exercise the authority to compel representation I first note that a
court must exercise its inherent powers “with restraint and discretion.” . . . In other words,
the appointment of counsel must be necessary to bring about a fair and just adjudicative
process.
. . . [W]hen determining whether counsel should be appointed for an indigent plaintiff,
the court should consider such factors as (1) the factual complexity of the case, (2) the
ability of the plaintiff to investigate the facts, (3) the existence of conflicting testimony, (4)
the plaintiff’s ability to present his claims and (5) the complexity of the legal issues. In re
Lane, 801 F.2d 1040, 1043-44 (8th Cir. 1986). An additional factor . . . is the plaintiff’s
ability to obtain counsel on his own. . . .
I conclude that the plaintiff’s failure to obtain private counsel was not the result of his
indigency but rather a result of the “marketability,” or lack thereof, of his claims. . . .
The first step in the “marketability” analysis is to ask whether, realistically, there is a
“market” of lawyers who practice in the legal area of the plaintiff’s claims. Many indigent
litigants, particularly prisoners, raise civil rights claims pursuant to 42 U.S.C. § 1983.
There are relatively few private attorneys who practice in the area of civil rights. Also, there
are few, if any, lawyers willing to assume cases on a contingent-fee basis where the indigent
plaintiff primarily seeks forms of relief other than monetary damages, such as injunctive or
declaratory relief. As a result, in many cases, there simply is no true “market” to look to
when determining whether an indigent plaintiff should be appointed counsel. In such cases,
there should be no further inquiry into the “marketability” of a plaintiff’s claims. Rather,
the appointment of counsel should rest on those other factors commonly used in
determining whether to appoint counsel. See In re Lane, supra.
In cases where such a “market” of lawyers is found to exist, a second question must be
addressed: Does the plaintiff have adequate access to that market? This inquiry is necessary
for two major reasons. First, many indigent litigants are physically unable to access private
counsel regardless of the merits of their claims. This is especially true where the litigant is
incarcerated. . . . Second, there may be communication barriers of language or language
skills; barriers of physical, emotional, or mental disabilities; or educational or cultural
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