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Keywords

plaintifflitigationattorneystatutemotionmalpractice
plaintiffplea

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State ex rel. Scott v. Roper, 688 S.W.2d 757, 52 A.L.R.4th 1031, 53 USLW 2521

Facts

Stephen C. Scott, an attorney, challenged the constitutionality of § 514.040, RSMo 1978, which purported to authorize the appointment of counsel for indigent plaintiffs. The underlying case involved a medical malpractice claim filed pro se by an inmate, alleging that permanent stitches were left in his body after surgery. After the initial appointed counsel withdrew due to a conflict with their charter, Scott was appointed to represent the plaintiff, leading to his motion to quash the appointment based on constitutional grounds.

The underlying suit, Jack L. Wright v. University of Missouri Medical Center and Doctor 'John Doe', Boone County Circuit Court Case No. 29AUG 83–411620, was filed pro se on August 25, 1983.

Issue

Whether an attorney can be compelled to represent an indigent plaintiff in a civil action without compensation and whether such compelled representation violates constitutional rights.

Relator argues, inter alia, that requiring him to represent the plaintiff in the underlying action is an unconstitutional taking of his property without just compensation.

Rule

An attorney cannot be compelled to spend personal funds for litigation expenses, and courts do not have the inherent power to appoint attorneys to serve in civil actions without compensation.

The essence of the complaint as set forth in the pleading is that permanent stitches were left in plaintiff's body after surgery by the physician and the hospital.

Analysis

The court analyzed the statute under which Scott was appointed and determined that it did not authorize such an appointment in this case. It emphasized that compelling an attorney to represent a plaintiff without compensation and without provision for litigation expenses would be unjust and contrary to established legal principles. The court referenced previous rulings that established attorneys cannot be required to advance personal funds for litigation.

To abandon this rule in a civil suit where the requirement of counsel is less compelling would be illogical and manifestly unjust, and we decline to so hold.

Conclusion

The court ordered that the prohibition against the appointment of Scott as counsel for the indigent plaintiff be made permanent, affirming that attorneys cannot be compelled to serve without compensation.

Our preliminary order must be made permanent.

Who won?

Stephen C. Scott prevailed in the case because the court recognized that compelling him to represent the plaintiff without compensation violated his constitutional rights.

Relator suggests that he was apparently appointed pursuant to § 514.040, RSMo 1978 inasmuch as no other authority for such appointment has been located.

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