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Law School Case Brief

Bothwell v. Republic Tobacco Co. - 912 F. Supp. 1221 (D. Neb. 1995)


If the lack of legal representation is the free choice of the unrepresented party or if it results from factors unrelated to the indigency of the plaintiff, our system is not offended. Where, however, one party is unable to obtain legal representation because of indigency, the resulting disparity of advocacy skills clearly offends the principle of "equality before the law" underlying our system. 


In March 1994 plaintiff Earl Bothwell, who at the time was incarcerated, submitted to the court a request to proceed in forma pauperis, a civil complaint against certain tobacco companies, and a motion for appointment of counsel. The court provisionally granted plaintiff's request to proceed in forma pauperis, pending receipt of trust account statements from his correctional institution, and ordered that plaintiff's complaint be filed. After several amendments to the complaint, the federal judge concluded that defendant tobacco companies should respond to Bothwell's strict liability and breach of implied warranty of fitness claims, granted the request for appointment of counsel and ordered issuance of summons. Following a series of motions to withdraw and appointments of substitute counsel, the federal judge appointed Paula Metcalf as plaintiff's counsel who, in turn, filed a "Statement of Appeal" of the appointment order and sought to stay enforcement of that order. The court noted that at that time, Bothwell was no longer incarcerated and his eligibility to proceed in forma pauperis was in question. The counsel’s statement of appeal was granted but she was reappointed when Bothwell notified the court that he wished to proceed in forma pauperis because he was unable to work and he was only receiving Supplemental Security Income. Metcalf filed a motion to reconsider and vacate that appointment, contending that the 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."


Does the federal court have an inherent or statutory authority to force an attorney to take an ordinary civil case without compensation?




After conducting an extensive review of authority, the court agreed that the federal district court was without statutory authority to appoint an attorney to represent an indigent party in a civil suit; however, the judge concluded that in seeking to bring about the fair and just resolution of a case, a federal court may exercise its inherent power to appoint individuals to act as "instruments" of the court. While it is established that a plaintiff has no constitutional right to counsel in a civil case, counsel nevertheless may be necessary in a particular civil proceeding to ensure fairness and justice in the proceeding and to bring about a fair and just outcome. 

After determining that Bothwell, who was no longer incarcerated and had not only the ability to but actually did, access the market of private attorneys to litigate his claims, the court concluded that it was the lack of marketability of Bothwell's claims, as opposed to his indigency, which prevented plaintiff from obtaining counsel. Therefore, the court granted Metcalf's motion for reconsideration and vacated its previous order of appointment, opting not to exercise the court's inherent authority to compel Metcalf to represent Bothwell.

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