County of Fresno v. Superior Court of Fresno Cty.

Real party in interest Donnie Roy O’Neal is an indigent imprisoned in a state correctional facility and is a defendant in three civil actions for wrongful death pending in Fresno County.

*193 Fresno County Legal Services, Inc., a publicly funded pro bono publico legal services organization, is representing a codefendant in the same civil actions and cannot represent O’Neal because of a potential conflict of interest between O’Neal and the client for whom it is providing legal services.

The superior court appointed real party in interest John Haig Missirlian, an attorney engaged in private practice, to represent O’Neal. He accepted the appointment and undertook the representation. Thereafter Attorney Missirlian petitioned the superior court for attorney’s fees and costs. The court awarded $500 attorney’s fees, denominated a retainer, and $100 costs for “all services required to prepare this case for trial” and ordered payment out of the Fresno County general fund, There was no evidence presented that the County of Fresno has appropriated funds for this purpose nor is there any argument presented or authority cited that the county has been authorized by the Legislature to…

I respectfully dissent.

I would hold that in those limited situations, such as this, where private counsel is appointed to represent an indigent prisoner pursuant to the holding of Payne (Payne v. Superior Court (1976) 17 Cal.3d 908 [ 132 Cal.Rptr. 405 , 553 P.2d 565 ]), the attorney is entitled to reasonable compensation for legal services and reimbursement of expenses to be fixed by the trial court; that failure to provide such payment from public funds violates the due process and equal protection clauses of the federal and state Constitutions, as well as article I, section 19, of the California Constitution (taking property without just compensation); and that the court has inherent power to order payment from public funds.

The California Supreme Court said in Payne, at page 924: “All we hold is that denial of appointed counsel to an indigent prisoner, when no other relief will preserve his right of access to the courts, is constitutionally impermissible.” And again at page 927: “All we decide is that when a prisoner is threatened with a judicially sanctioned deprivation of his property, due process and equal protection require a meaningful opportunity to be heard. How that…

I concur fully in the principal opinion. The question is not the economic needs or constitutional rights of lawyers—it is whether an indigent prisoner’s constitutional right of access to the courts in a civil case will be significantly impeded if his counsel is not paid from public funds. Only if it is demonstrated that this is so does the right to compensation achieve a constitutional dimension. I submit that this is not the case.

Far more than the public realizes, the legal profession has responded magnificently over the years to the lawyer’s ethical mandate “[n]ever to reject, for any consideration personal to himself, the cause of the defenseless or the oppressed.” (Bus. & Prof. Code, § 6068, subd. (h).) Moreover, the State Bar Board of Governors recently has applied for a federal grant to provide civil legal assistance to indigent prisoners in California. If approved, the prison legal services program will be headquartered in San Francisco with eight field offices near prisons and will provide legal assistance to about 4,000 prisoners annually. (Los Angeles Daily Journal (June 12, 1978) p. 1, col. 7.) Thus, there is no compelling need to create a constitutional power in the…

Henry & Missirlian and John Haig Missirlian for Real Parties in Interest.

Betsy Temple, Howard K. Watkins, William H. Leifer, Janice Pearson, Paul Bell, Stephen J. Perrello, Jr., Michael Satris and Morton P. Cohen as Amici Curiae on behalf of Real Parties in Interest.

OPINION

BROWN (G.A.), P.J.

Real party in interest Donnie Roy O'Neal is an indigent imprisoned in a state correctional facility and is a defendant in three civil actions for wrongful death pending in Fresno County.

Fresno County Legal Services, Inc., a publicly funded pro bono publico legal services organization, is representing a codefendant in the same civil actions and cannot represent O'Neal because of a potential conflict of interest between O'Neal and the client for whom it is providing legal services.

The superior court appointed real party in interest John Haig Missirlian, an attorney engaged in private practice, to represent O'Neal. He accepted the appointment and undertook the representation. Thereafter Attorney Missirlian petitioned the superior court for attorney's fees and costs. The court awarded $500 attorney's fees, denominated a retainer, and $100 costs for "all services required to prepare this…