Sholes v. Sholes

760 N.E.2d 156 (Ind. 2001)


An IN attorney was appointed as an attorney for an indigent client and requested compensation for his court appointment.


(1) “Whether Indiana Code section 34-10-1-2 requires appointment of counsel for civil litigants who are without sufficient means to prosecute or defend an action;”
(2) If so, must the attorney be paid?
(3) Who is to pay the attorney?


(1) The court cannot deny counsel to a P.
(2) Yes, the attorney must be compensated.
• An attorney may choose to accept a court appointment without compensation.
• All IN attorneys take to oath a line stating they have a duty to help the defenseless/oppressed. Indiana’s rule of professional conduct holds that attorneys are to provide services for no fee to persons of limited means.
• When volunteer services are insufficient to the task, attorneys must be appointed and compensated. Licenses aren’t privileges mandating free service to the poor. Taking a licensed practitioner away from his craft necessarily deprives others of his services.
(3) “… in the absence of any legislatively prescribed source of funding, a court’s ability to direct that counsel by appointment is circumscribed by the doctrines surrounding the court’s ability to order the expenditure of public funds.” But, the legislature is a separate entity and should not control the judiciary business conduct. Therefore, the judiciary shall pay for an attorney where no uncompensated, voluntary attorney exists.


Disagrees with (3). Pollard considered a statute and held that a county may not be required to compensate an attorney for services to the poor. The court in previous cases have looked to the history of “particular services” to determine whether they are services which have historically gone uncompensated. Here there is no history of compensation for attorneys rendering legal services. We should not construe section 21 to confer new rights to compensation where they didn’t previously exist.

Lawyer’s are also officers of the court and have a responsibility to the public. It’s inherent in being a lawyer. And requiring attorneys to serve publicly doesn’t “lessen the protections of Section 21 that prohibit the government from demanding services of persons in other professions and occupations without just compensation.” Moreover, lawyers who accept indigent clients should not be entitled to demand compensation.

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