State v. Lynch

1990 OK 82, 796 P.2d 1150, 61 O.B.A.J. 2102, 1990 Okla. LEXIS 88, 1990 WL 103246

• Court: Supreme Court of Oklahoma
• Decided: July 24, 1990
• Docket: 74319, 74259
• Status: Published

Opinions

KAUGER, Justice.

In these cases of first impression,¹ we are asked to decide whether the trial court erred in declaring 21. O.S.Supp.1985 § 701.14 unconstitutional because court appointed counsel were forced to represent indigent defendants without the assurance of receiving adequate, speedy, and certain compensation for such representation.² We find that: 1) Although the statute is not facially unconstitutional, under the facts presented in Cause no. 74,319, it is unconstitutional in application; 2) The present system presses' lawyers into service without affording a post-appointment opportunity to show cause why they should not be forced to accept the appointment; and 3) The statute provides an arbitrary and unreasonable rate of compensation for lawyers which may result in an unconstitutional taking of private property depending on the facts of each case.

While we recognize the responsibility of members of the Oklahoma bar to assist in the provision of legal representation to indigent defendants, we find that in some instances the arbitrary and unreasonable statutory scheme contravenes the due process clause of the Okla. Const, art. 2, § 7 as well as the immunities clause of the Okla. Const, art. 5, § 51. In reaching this conclusion, we do not rely on federal authorities, and any reference thereto is solely for illustrative purposes.³ The Oklahoma Constitution provides bona fide, separate, adequate and independent grounds upon which we rest our finding.

FACTS

Two Seminole County lawyers, Jack Mat-tingly and Rob L. Pyron, were appointed by the district court to represent Delbert Lynch, an indigent who had been charged with first degree murder. Although the State had sought the death penalty, after a complicated trial, which began on August 21,1989, and ended on August.31,1989, the jury rendered a guilty verdict and gave Lynch a life sentence. Following Lynch’s sentencing on September 6, 1989, the lawyers petitioned the court for fees and expenses.

At the hearing on counsel fees, Mattingly testified that he had spent 169 hours on the case, and incurred $173.03 in out of pocket expenses, requesting a $17,073.03 fee. Pyron’s testimony was that he had expended 109.55 hours on Lynch’s behalf, and he sought a $10,995.00 fee. Mattingly submitted a statement documenting his hourly overhead rate for 1986, 1987, 1988 which ranged from $45.80 to $53.53 — averaging $50.88. Pyron submitted his overhead figures for 1988, reflecting an average hourly rate of $48.00.⁴ Had the two lawyers split the maximum statutory fee of $3,200.00, Mattingly would have received $9.47 per hour, with Pyron receiving $14.61 per hour. Based on these computations, Mattingly would lose $41.41 and Pyron would lose $33.39 in overhead expenses for every hour that they worked on the defense. These figures do not reflect any compensation for the attorneys’ services.⁵ The trial court approved the requested fees, finding that the $3,200.00 restriction on attorney fees was unconstitutional. The State of Oklahoma appealed and the cause became at issue for our consideration on March 21, 1990.

I.

THE STATUTORY COMPENSATION ALLOWED FOR THE REPRESENTATION OF LYNCH IN CAUSE NO. 74,319 VIOLATED ART. 2, § 7, THE DUE PROCESS CLAUSE OF THE OKLAHOMA CONSTITUTION.

The parties do not dispute that Oklahoma is required to provide attorneys for indigent defendants who are charged in Oklahoma courts with felonies, certain misdemeanors, competency to stand trial,⁶ contempt proceedings,⁷ and guardianship matters,⁸ or that the State of Oklahoma has attempted to provide such representation.⁹ The basic concern is not with the constitutional requirements of the Okla. Const. art. 2, § 20, or the public policy which requires representation of indigent defendants; but, rather, with the practical application of the public policy and its impairment of constitutionally guaranteed private property rights. The State asserts that compensation should only exceed the statutory limit when extraordinary circumstances are shown as established in Bias v. State, 568 P.2d 1269 (Okla. 1977), and that an unconstitutional taking does not occur when a court-appointed attorney is required to represent indigent defendants.

The Okla. Const, art. 2, § 7 provides that “No person shall be deprived of life, liberty, or' property without due process of law.” The lawyers contend that under this constitutional provision mandatory representation without just compensation is unconstitutional. The Okla. Const, art. 2, § 20 also requires that competent counsel be provided for indigent defendants.¹⁰ Under art. 2, § 20, a criminal defendant has a fundamental right to the reasonably effective assistance of counsel, regardless of whether counsel is appointed or retained.¹¹ This means a lawyer must render the same obligations of loyalty, confidentiality, and competence to a court-appointed client as a retained client would receive. Oklahoma has fulfilled the constitutional requirement of competent counsel by utilizing public defenders’ offices, voluntary pools, and court-appointments. In order for the system to work, a balance must be maintained between the lawyer’s oath of office,¹² an indigent’s fundamental right to counsel, and the avoidance of state action tantamount to confiscation of a lawyer’s practice.

To achieve an appropriate balance of constitutional interests the rights of both the indigent defendant and the lawyer must be protected. Here, the constitutional right of the indigent to counsel is not at issue — the due process rights of appointed counsel for indigent defendants are. Although it is obvious that while Oklahoma’s statutorily mandated cap may not be facially defective, and that in some instances payment of the statutory fee might even be an excessive rate of compensation, there is a substantial probability that it will be defective in application. Here, it is apparent that the maximum statutory fee is inadequate to compensate the lawyers who represented Lynch.¹³

In Bias v. State, 568 P.2d 1269, 1272-73 (Okla.1977), a lawyer had been compelled both to subsidize indigent representation and to forsake his regular law practice during the representation of the indigent defendant. The Bias Court recognized that such circumstances may constitute a taking of private property without compensation. In order to harmonize conflicting interests, the Court authorized payment in excess of the statutorily prescribed norms for extraordinary expenditures of time and expense. Since Bias, we held in Ford v. Ford, 766 P.2d 950, 952 (Okla.1988), that a law practice can be considered jointly acquired property subject to division as a part of the marital estate. Under the Court’s analysis in Ford, an attorney’s practice is property under Oklahoma’s due process clause — those property rights may not be impaired without adequate recompense.

Clearly, there is a substantial risk of the erroneous deprivation of property rights under the current appointment system. A lawyer’s skills and services are his/her only means of livelihood. The taking thereof, without adequate compensation, is ana-lagous to taking the goods of merchants or requiring free services of architects, engineers, accountants, physicians, nurses or of one of the thirty-four other occupations or professions in this state which require a person to be licensed before practicing the occupation or profession. None of the licensing statutes require that the members of those professions donate their skills and services to the public.¹⁴ We know that many of these professionals do so. We also know that it would be unusual for the various licensing boards to force their licensees to proffer their services to indigents or to offer cut-rate prices on haircuts, perms, embalming, dentures, or surgeries.

We acknowledge that the present system may deprive lawyers of interests in their law practices. Nevertheless, we also recognize that a lawyer’s calling is different from that of other licensed professions. We are a government of laws and not of men and women.¹⁵ At the foundation of this republic is the respect for enforcement of the law in a neutral way. The services of competent counsel are necessary to insure that our system of justice functions smoothly, that justice is dispensed even handedly, and that the rights and interests of indigent defendants are safeguarded in a truly adversarial forum.¹⁶ A lawyer is weighted with responsibility which is uncommon to the ordinary professional,¹⁷ and as a member of the integrated bar, an Oklahoma lawyer has a duty to the oath of office, to the Courts, to his/her clients, and to the public at large to be more than a tradesperson.

Procedural due process of law requires adequate notice, a realistic opportunity to appear at a hearing, and the right to participate in a meaningful manner before one’s rights are irretrievably altered.¹⁸ We find that in order to provide safeguards which will bring the system into compliance with due process, trial courts must proffer a post-appointment opportunity for the lawyer to appear and to show cause without penalty, why he/she should not be appointed to represent an indigent defendant. This is in accord with the unpublished order of this Court, promulgated July 13, 1987, Pitts v. Wolfe, No. 67,114. In Pitts, we refused to assume original jurisdiction to prohibit the enforcement of the order issued by a trial judge in the Seventeenth Judicial District. The trial court had appointed a lawyer, whose primary practice was in the Seventh Judicial District, to represent an indigent defendant evidently because he had listed his name in the Hugo, Oklahoma, telephone directory. We noted that the exercise of the power was specifically authorized by 22 O.S.Supp.1985 § 464(A), and that the petitioner had an adequate remedy in the trial court to challenge the order of appointment on the grounds that he could not adequately represent the indigent defendant. This is also in accord with the Model Rules of Professional Conduct, 5 O.S.Supp.1988 Ch. 1, App. 3-A, Rule 6.2 and the committee comments thereto,¹⁹ which provide that a lawyer may refuse an appointment for the representation of an indigent upon a showing of good cause.

We find that good cause consists of, but is not limited to the following factors: 1) the lawyer is not qualified to provide competent representation; 2) the representation will result in a conflict of interest; and 3) the case is so repugnant to the lawyer that it would impair either the attorney-client relationship or the lawyer’s ability to represent the client.²⁰ We also find that Rule 1.16 of the Model Rules of Professional Conduct, 5 O.S.Supp.1988 Ch. 1, App. 3-A, is applicable to all client representation, and that it should be construed with the “good cause” factors. This rule provides that a lawyer may refuse to represent a client if: 1) the representation would violate the Rules of Professional Conduct or other law; 2) the lawyer's physical or mental condition materially impairs the lawyer’s representation of the client; 3) the client persists in conduct involving the lawyer’s service which the lawyer believes is criminal or fraudulent; 4) the client has used the lawyer’s services to perpetrate a crime or fraud; or 5) the client discharges the lawyer.²¹

The efficient administration of justice and judicial pragmatism, as well as the constitutional rights of indigent defendants, requires the continuation of court appointments of private counsel for indigent defendants. The due process clause of the Oklahoma Constitution forbids such appointments unless provisions are made for adequate, speedy, and certain compensation. Our holding today would prohibit both the appointment of counsel to represent indigents without a post-appointment opportunity to show good cause why the appointment should not be accepted and the appointment of counsel without just compensation. Providing for adequate funding for indigent representation is a matter for legislative action.

II.

APPOINTMENT OF COUNSEL

For all practical purposes, 19 O.S. 1981 § 137.1 and 19 O.S.Supp.1989 § 138.1 exempt attorneys in counties which have public defenders’ offices from representing indigent defendants in state courts. Lawyers in these counties are subject to appointment only when a conflict of interest arises in the public defender’s office.²² Currently, these attorneys are neither faced with impending financial disaster nor forced to ignore their practice in order to provide effective counsel for an indigent. Except in rare circumstances, these attorneys have been granted an “immunity” by the legislature.

The representation of indigent defendants is a state-wide problem. The problem is not confined to the geographical limits of the individual counties in the state. The Okla. Const, art. 5, § 51, provides that “the Legislature shall pass no law granting to any association, corporation, or individual any exclusive rights, privileges, or immunities within this State.” This constitutional provision was enacted to preserve equality between citizens who are similarly situated.²³ By enacting 19 O.S. 1981 § 137.1 and 19 O.S.Supp.1989 § 138.1, the Legislature created an exemption for attorneys who practice in counties which qualify for public defender’s offices. Attorneys who practice in non-qualifying counties are required to shoulder indigent representation without regard to overhead expenses or the loss of business.²⁴

The questions posed under § 51 are whether the attorneys are similarly situated and whether the attorneys are treated equally. When the facts are applied to the constitutional provision, we find that the lawyers are all members of the Oklahoma Bar Association and, as such, they are licensed to practice law in the state of Oklahoma. Because lawyers who practice in certain counties are immunized from the representation of indigent defendants, not all Oklahoma lawyers are treated equally. We also find that discrimination between attorneys who may be forced to represent indigent defendants based solely on the population of the county in which they practice law is unconstitutional under any level of scrutiny.²⁵

However, we note as a practical matter, that to prevent unnecessary expenses for transportation and logistical costs, trial courts should first utilize voluntary pools and the lawyers who maintain an office or practice regularly within the judicial district in which the appointment is to be made. In the event the appointing judge finds it necessary to look beyond the judicial district in which the judge sits an appointment may be requested from the Presiding Judge of an attorney selected from within that administrative district. Should that not result in an appointment, the judge may request an appointment from the state bar at large from the Chief Justice. Appointments made by Special or Associate District Judges should be from attorneys who office within the county, but if such judge finds it necessary to look beyond the county, the judge may make such a request of the Chief District Judge, who shall proceed according to the order of priority for potential appointments set out above.

III.

THE FORMATION OF VOLUNTARY POOLS TO REPRESENT INDIGENT DEFENDANTS IS ENCOURAGED.

Attorneys are licensed by the Supreme Court of the State of Oklahoma to practice law, and an attorney owes his/her first duty to the Court. Likewise, the Court has an immediate interest in the character and the function of the bar — a good bar is necessary for a good bench.²⁶ We applaud individual attorneys or associations of attorneys who volunteer to provide either pro bono legal representation or representation of indigent defendants at rates which may be drastically under the market value of the lawyers skills and services. It reflects pride in the practice of law, and it exemplifies the best of many virtues found in the practicing bar. The provision of legal services to indigents is one of the responsibilities assumed by the legal profession, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer.

Every lawyer, regardless of professional prominence or professional workload, should find time to participate in or otherwise support the provisions of legal services to the disadvantaged.²⁷ We strongly urge the continuation of these services. We believe that attorneys would voluntarily donate their skills and services were they not unduly burdened with compulsory appointments.²⁸ We also believe that Oklahoma lawyers will form local, county, district, and intra-state voluntary pools to assume this responsibility and to relieve lawyers who practice in counties with few lawyers from an unfair court-imposed case load. We also recognize that at this time voluntary services are insufficient to acco-modate the right of indigent citizens to the effective assistance of counsel where that right is implicated.

IV.

COMPUTATION OF FEES

The State of Oklahoma has the obligation to furnish counsel for indigents charged with: felonies; misdemeanors when imprisonment upon conviction is a real possibility; juvenile proceedings which may result in commitment to an institution; mental health matters;²⁹ contempt proceedings; ³⁰ and guardianship matters.³¹ The State also has an obligation to pay appointed lawyers sums which will fairly compensate the lawyer, not at the top rate which a lawyer might charge, but at a rate which is not confiscatory, after considering overhead and expenses. The basis of the amount to be paid for services must not vary with each judge; rather there must be a statewide basis or scale for ascertaining a reasonable hourly rate in order to avoid the enactment of a proscribed special law.³²

Although we invite legislative attention to this problem, in the interim, we must establish guides which will apply uniformly without either violating due process rights or granting constitutional immun-ites. Bias provided some relief to Oklahoma lawyers; however, it did not address the constitutional infirmities which are squarely presented here. Therefore, in order to correct the defects which render the present statutory scheme unconstitutional, we must build on the foundation which was laid in Bias. We find that the most even handed approach in setting fees is to tie the hourly rate of the counsel appointed for the indigent defendant to the hourly rate of the prosecutor/district attorney and the public defenders.³³

Before the 1988 amendment to 19 O.S. Supp.1988 § 215.30(B)(2), the salary of a district attorney was based on population in the district. After the amendment, the statute provided that all district attorneys receive the same salary — $56,180.00 per year or $29.26 per hour. We find that the trial court may award the attorney from $14.63 to $29.26 based on the attorney’s qualifications. This range is tied to the salary range paid to assistant district attorneys and the district attorneys.³⁴ (As a matter of course, when the district attorneys’ and public defenders’ salaries are raised by the Legislature so, too, would the hourly rate of compensation for defense counsel.) The overhead and the litigation expense of the district attorney are furnished by the state. In order to place the counsel for the defense on an equal footing with counsel for the prosecution, provision must be made for compensation of defense counsel’s reasonable overhead and out of pocket expenses.

However, before the lawyer can be compensated for overhead, the percentage of reasonable hourly overhead rate directly attributable to the case in controversy, and the amount of out-of-pocket expenses incurred, must be presented to the trial court.³⁵ These items, in addition to the range of $14.63 to $29.26 an hour for the lawyers’ services, must be considered in setting counsel fees. Obviously, the trial court is charged with the duty to ascertain whether the number of billable hours were reasonably necessary to the provision of a defense by competent counsel. (These fees are also subject to final approval by the Chief Justice.)³⁶ Currently, the statute, 22 O.S.Supp.1985 § 464, provides for a $750.00 limit on payment of costs. If these costs exceed this amount, they will not be paid unless defense counsel petitions the court for approval of extraordinary expenses before they are incurred. To receive payment for the reasonable overhead, attorney fees, and out of pocket expenses charged to the case, the lawyer must present accurate itemizations of overhead expenditures, time sheets, and invoices to support the number of hours reasonably spent on the defense.

Mattingly and Pyron have complied with the guidelines we are establishing. Were this not so, we would remand for further proceedings. We find that they are seasoned lawyers who should be paid an hourly rate of $29.26 per hour; that the average overhead rate and out of pocket expenses presented are reasonable; and that the lawyers spent the time alleged in the pursuit of Lynch’s defense. The trial court approved counsel fees in the amount of $17,073.03 for Mattingly and $10,995.00 for Pyron. Our computation results in a smaller fee than that which was allowed by the trial court.

Calculation of Fees

Mattingly’s out-of-pocket expenses $ 173.03

Average hourly overhead $50.88 @169 hours 8,598.72

Hourly rate $29.26 @169 hours 4,944.94

Total compensation $13,716.69

Pyron’s average overhead $48.00 @109.55 hours $ 5,258.40

Hourly rate $29.26 @109.55 hours 3,205.43

Total compensation $ 8,463.83

Since Bias, attorneys representing defendants charged with capital crimes³⁷ have been awarded extraordinary expenses and attorney fees. This extraordinary compensation has been calculated under a formula devised by former Chief Justices of Oklahoma in cooperation with the Administrative Director of the Courts. As a practical matter, the fees which have been awarded have been in the range we have adopted today.

CONCLUSION AND EFFECTIVE DATE OF DECISION

After reaching the conclusion that the provision of counsel fees for Lynch under 21 O.S.Supp.1985 § 701.14, was constitutionally infirm, our duty is unmistakable.³⁸ Under the unusual circumstances presented here, and because of this Court’s direct and inherent constitutional power³⁹ to regulate the practice of law in Oklahoma, we conclude that “weighty counterveiling policies” ⁴⁰ and considerations of judicial economy are best served by addressing the merits in both Cause No. 74,259 and Cause No. 74,319. This treatment will avoid confusion and disorder, and it will negate endless litigation on case by case basis.

We held, in In re Integration of State Bar, 185 Okla. 505, 95 P.2d 113 (1939), that the primary duty of courts is the proper and efficient administration of justice; that lawyers are an important part of the judicial system of this state; and that the inherent power to define and regulate its practice naturally and logically resided in the Oklahoma Supreme Court because the practice of law was so intimately connected and bound up with the exercise of judicial power in the administration of justice.⁴¹ The Okla. Const, art. 7, §§ 4 and 6 explicitly endows this Court with the power of general superintending control and general administrative authority over all inferior courts in this State.⁴² The Court is constitutionally vested with the power to control and regulate the practice of law in this State,⁴³ and it regulates, among other things: 1) the moral, educational and residential qualifications for admission to the bar; ⁴⁴ 2) the necessity of taking a bar examination; ⁴⁵ 3) the requirement that attorneys belong to the Oklahoma Bar Association;⁴⁶ 4) mandatory continuing legal education;⁴⁷ and 5) the standards and procedures for discipline of attorneys.⁴⁸

Because of our constitutional responsibilities relating to the managerial and superintending control of the district courts and of the practice of law; because of the inherent power of this court to define and regulate the practice of law; and because of the public nature, and the certainty of reoccurrence of the problem presented, we must declare the compulsory appointment of lawyers without providing a post-appointment opportunity to show cause why they should not be required to accept the appointment, or without providing adequate, speedy, and certain compensation for such representation, an unconstitutional taking of private property. We must also adopt guidelines for the trial courts to follow in setting fees for representation of indigent defendants in all cases where the state of Oklahoma is required to provide such representation in order to avoid the unequal, erratic, unconstitutional taking of private property which might occur if fees are set by a different formula in each of the state’s seventy-seven counties. We find that our constitutional duties are met by assuming this responsibility rather than by delegating it to administrative personnel who are answerable neither to the constitution nor to the people.

Certainly, the framers of the constitution did not intend to obliterate the due process rights of lawyers in order to protect the constitutional rights of indigent defendants. An attorney cannot be forced to accept the appointment to represent indigent defendants without a meaningful post-appointment opportunity to show good cause why the assignment is unacceptable. We believe that by providing a post-appointment due process hearing, and by assuring adequate, speedy, and certain payment for the legal services, that the representation of an indigent defendant by court appointed counsel will not result in an unconstitutional taking of private property without due process of law and that the indigent defendant, the bench, the bar, and the public will be better served.

However, as we noted above, the provision of counsel for indigent defendants, and the compensation of such counsel also lie within the Legislative sphere, and its consideration of the myriad problems presented is invited. This is an important area, which the Legislature should act to address. Nevertheless, until such time as the Legislature considers these matters, pursuant to the constitutional power granted by art. 7, §§ 4 and 6 of the Oklahoma Constitution, these guidelines shall become effective in all cases in which the State of Oklahoma is required to provide assistance of counsel insofar as the appointment of counsel and the implementation of post-appointment show cause hearings are concerned upon the issuance of the mandate herein. The computation of fees in all capital cases shall also be calculated according to the promulgated guidelines after the issuance of the mandate. However, under the authority of Vanderpool v. State, 672 P.2d 1153, 1157 (Okla.1983), recovery of attorney fees under the new guidelines will not be effective in non-capital cases until August 24, 1992, to allow the Legislature to address the problem, and to enact corrective legislation.

ORIGINAL JURISDICTION ASSUMED

JUDGMENT OF THE TRIAL COURT AFFIRMED AS MODIFIED IN CASE NO. 74,319.

HARGRAVE, C.J., HODGES, LAVENDER, ALMA WILSON and SUMMERS, JJ„ concur. OPALA, V.C.J., concur in part, dissent in part. SIMMS and DOOLIN, JJ., dissent.

1 . These cases are deemed consolidated: 74,319, State v. Lynch and 74,259, Pontotoc County Bar Ass’n v. Melson. Although standing is not an issue in Lynch, it is an issue in Pontotoc County Bar Assoc. We find that the issue is without merit because this Court found in Missouri-Kansas-Texas R.R. v. State, 712 P.2d 40, 42 (Okla.1985), that an unincorporated association can have standing through its members.

2 . The Court fund is not subject to suit in the district court. However, the instant cause is treated as a common law writ which is reviewable by writ but is not appealable. See, Court Fund v. Cook, 557 P.2d 875, 878 (Okla.1976).

4 .

MATTINGLY & SNOW

SEMINOLE, OKLAHOMA

INDIRECT/OVERHEAD COSTS

1986 1987 1988

Salaries 138,929 $ 47,965 41,776

Taxes 3,469 4,513 4,723

Repairs 4,851 3,029 2,670

Depreciation 13,288 14,769 11,348

Advertising 453 113 68

Bank Charges 76 18 133

Dues and Subscriptions 1,401 1,042 943

Equipment Rental 419 436 833

Insurance 8,159 12,481 17,354

1986 1987 1988

Janitorial Service 370 535 -0-

Long Distance Service 461 52 239

Promotion 110 40 -0-

Office Expense 5,895 5,905 5,161

Postage 2,158 2,487 2,305

Post Office Box Rent 53 53 -0-

Telephone 4,658 6,136 5,174

Utilities 3,195 3,407 2,415

Bank Box Rent -0-25 -0-

Contract Labor 564 579 1,285

Legal & Accounting 2,352 2,733 8,003

Professional Seminars 600 545 337

Professional Travel 203 21 1,211

Library Backup 3,610 4,005 5,355

Total $95,274 $110,889 $111,333

Hourly Overhead Rate (based on 2,080 hours per year) $ 45.80 53.31 53.53

Total Overhead Costs for the above 3 years $105,832

Average Hourly Overhead Rate (based on 2,080 hours per year) $ 50.88

ROB PYRON

Dues and Subscriptions $ 2,497.00

Contributions 990.00

Material & Supplies ' 7,318.00

Accounting 2,293.00

Salaries 41,925.00

Insurance 4,349.00

Advertising 198.00

Rent 7,255.00

Auto Expense 2,322.00

Postage, Bank Charge, etc. 2,274.00

Maintenance 2,924.00

Utilities & Telephone 3,881.00

Taxes 4,508.00

Entertainment 456.00

Library 2,874.00

Travel 13,276.00

Continuing Education 284.00

Total $99,624.00

Average Hourly Overhead Rate (based on 2080 hours per year) $ 48.00

5 . Had the attorneys received the same hourly pay as district attorneys i.e., $29.26 an hour, Mattingly would contribute $70.67 per hour with Pyron contributing a total of $62.65 per hour to the indigent’s defense. These figures include both the overhead and an hourly rate of compensation. A construction of the statute under which each of the appointed lawyers would be paid statutory maximum fee would result in Mattingly receiving $18.93 per hour, and Pyron $29.21 — with the accompanying net losses of $61.21 and $48.05 per hour. See discussion infra.

6 . Title 22 O.S.Supp.1983 § 1175.2(B)(4) provides:

"4. That if the person whose competency is in question does not have an attorney, the court will appoint an attorney for the person who shall represent him until final disposition of the case;”.

7 . Brown v. State, 677 P.2d 1089, 1091 (Okla. Crim.App.1984); Johnson v. State, 599 P.2d 416, 418 (Okla.Crim.App.1979).

8 . Title 30 O.S.Supp.1988 § 3-107 provides in pertinent part:

"A. If at or prior to a hearing on a petition alleging a person to be an incapacitated or partially incapacitated person, or if at any point in the course of a proceeding pursuant to said petition, the subject of the proceeding is not represented by counsel, the court may appoint an attorney as provided in this section, ...”

9 . The United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733-(1963), In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) requires counsel to be appointed for: 1) indigents charged with a felony; 2) in juvenile proceedings which may result in commitment to an institution; and 3) misdemeanors when imprisonment is a real possibility. These cases imposed a duty upon the states to meet the constitutional guarantee of counsel.

Further 22 O.S.Supp.1985 § 464 provides in pertinent part:

"A. If the defendant appear for arraignment, without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel. If he desires and is financially unable to employ counsel, the court must assign counsel to defend him....”

10 . Okla. Const. art. 2, § 20, provides in pertinent part:

"In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed ... He shall have the right to be heard by himself and counsel; ...”

11 . Fisher v. State, 736 P.2d 1003, 1011 (Okla. Crim.App.1987), aff’d, 739 P.2d 523 (1987), cert. denied, 486 U.S. 1061, 108 S.Ct. 2833, 100 L.Ed.2d 933 (1988), reh'g denied 487 U.S. 1246, 109 S.Ct. 3, 101 L.Ed.2d 955 (1988).

12 . Title 5 O.S.1981 § 2 provides:

"Upon being permitted to practice as attorneys and counselors at law, they shall, in open court, take the following oath: You do solemnly swear that you will support, protect and defend the Constitution of the United States, and the Constitution of the State of Oklahoma; that ybu will do no falsehood or consent that any be done in court, and if you know of any you will give knowledge thereof to the judges of the court, or some one of them, that it may be reformed; you will not wittingly, willingly or knowingly promote, sue, or procure to be sued, any false or unlawful suit, or give aid or consent to the same; you will delay no man for lucre or malice, but will act in the office of attorney in this court according to your best learning and discretion, with all good fidelity as well to the court as to your client, so help you God."

13 . The maximum statutory fee set by the legislature is: 1) in capital cases, $200.00 for services rendered before the preliminary hearing, $500.00 for services rendered during the preliminary hearing, $2,500.00 for services rendered from the time the defendant is bound over until final disposition in the trial court; .2) in other criminal cases, the fee is not to exceed $500.00; 3) in juvenile and guardianship cases, the fee is not to exceed $100.00 in a preliminary hearing, $500.00 if the cause goes to trial and $100.00 for post-disposition hearings.

Title 21 O.S.Supp.1985 § 701.14 provides in pertinent part:

"... such attorney shall not be paid a sum to exceed the following amounts:

For services rendered prior to and in preparation for preliminary hearing. $200.00

For services rendered at preliminary hearing .. $500.00

For services rendered from the time the defendant is bound over on the charge of murder in the first degree through final disposition in the trial court. $2,500.00 ..."

Title 22 O.S.1981 § 1271 provides in pertinent part:

"... The attorney shall not be paid a sum to exceed Five Hundred Dollars ($500.00) in any one case, ...”

Title 20 O.S.Supp.1989 § 1304(b)(9) provides in pertinent part:

"(9) ... Compensation from the court fund for attorneys appointed pursuant to the Oklahoma Guardianship Act, ... shall be substantially the same as for attorneys appointed in juvenile proceedings pursuant to Title 10 of the Oklahoma Statutes.”

Title 10 O.S.Supp.1989 § 24(B) provides in pertinent part:

"B. ... Provided, that such attorney shall not be paid a sum to exceed One Hundred Dollars ($100.00) for services rendered in preliminary proceedings, and such compensation shall not exceed Five Hundred Dollars ($500.00) for services rendered during trial and not to exceed One Hundred Dollars ($100.00) for services rendered at each subsequent post-disposition hearing.”

14 .The other licensed occupations or professions are:

Certified Public Accountants, 59 O.S.Supp. 1982 § 15.18; Insurance Adjusters, 36 O.S. Supp.1983 § 6206; Architects, 59 O.S.Supp. 1986 § 46.24; Athletic Trainers, 59 O.S.1981 § 530; Bail Bondsmen, 59 O.S.Supp.1987 § 1303; Chiropractors, 59 O.S.Supp.1989 § 164; Court Reporters, 20 O.S.1981 § 1503; Dentists and Dental Hygenist, 59 O.S.1981 § 328.21; Dietitian, 59 O.S.Supp.1984 § 1730, Druggists, 59 O.S.Supp.1988 § 353.9; Electrologist, 59 O.S.Supp.1987 § 536.7; Funeral Directors and Embalmers, 59 O.S.Supp.1989 § 396.3; Emergency Medical Technician, 63 O.S.1981 § 330.74; Foresters, 59 O.S.1981 § 1212; Electrician and Electrical Contractor, 59 O.S.Supp.1982 § 1685; Cosmetologist, 59 O.S.Supp. 1985 § 199.7; Insurance Agent, Solicitor and Broker, 36 O.S.Supp.1988 § 1425; Nurse, 59 O.S.1981 § 567.5; Nurse Anesthetist, 59 O.S.Supp.1988 § 567.51; Optometrist, 59 O.S.1981 § 584; Osteopath, 59 O.S.Supp. 1983 § 633; Physical Therapist, 59 O.S.Supp. 1987 § 887.7, Physicians, 59 O.S.Supp.1987 § 493; Plumbers, 59 O.S.1981 § 1006; Podiatrist, 59 O.S.1981 § 144; Polygraph Examiner, 59 O.S.Supp.1985 § 1458; Pruner, 2 O.S.1981 § 3-272; Psychologist, 59 O.S.Supp.1984 § 1366; Public Adjuster, 36 O.S.Supp. 1983 § 6206; Real Estate Broker, 59 O.S.Supp.1982 § 858-303; Schoolteachers, 70 O.S.Supp.1982 § 6-154; Social Worker, 59 O.S.Supp.1987 § 1261.1; Speech Pathologist and Audiologist, 59 O.S.Supp.1982 § 1605; Veterinarians, 59 O.S.Supp.1989 § 698.9, Occupational Therapist, 59 O.S.Supp.1984 § 888.6; Building and Construction Inspector, 59 O.S.Supp.1989 § 1036; Security Guards and Private Investigators, 59 O.S.Supp.1989 § 1750.6, Mechanical Contractor, 59 O.S.Supp.1987 § 1850.8.

The medical profession has faced this problem by the development of an alternative system for providing medical service for indigents. The establishment of free clinics, a welfare system which provides medical care and/or medical insurance and federally funded medical care programs have alleviated most of the need to compel physicians to donate their services. Christensen, "The Lawyer’s Pro Bono Publico Responsibility”, 1981 Am.B.Found. 1, 18-19 (1981). This is further amplified by the Department of Human Services which provides partial payment to the physicians and hospitals that service the indigents. See Department of Human Services Provider Manual.

15 . B. Bohle, The Home Book of American Quotations, p. 180 (Dodd, Mead & Co. 1967) (quote from John Adams).

16 . McLaughlin v. Western Casualty and Sur. Co., 603 F.Supp. 978, 980-81 (S.D.Ala. 1985).

17 . In re Wright, 131 Vt. 473, 310 A.2d 1, 7, 92 A.L.R.3d 639, 647-48 (1973).

18 . Cate v. Archon Oil Co., 695 P.2d 1352, 1356 (Okla.1985).

19 . Title 5 O.S.Supp.1988 Ch. 1, App. 3-A, Rule 6.2 provides:

"A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:

(a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law;

(b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or

(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.”

20 . Under the guides adopted today section (b) is unnecessary because just compensation has been provided.

21 .Title 5 O.S.Supp.1988 Ch. 1, App. 3-A, Rule 1.16 provides in pertinent part:

"(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the Rules of Professional Conduct or other law;

(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client;

(3) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;

(4) the client has used the lawyer’s services to perpetrate a crime or fraud; or

(5) the lawyer is discharged_”

22 . Title 22 O.S.1981 § 1271 provides in pertinent part:

"... If two or more indigent defendants are charged conjointly, and the public defender cannot justly defend both, the court may appoint and compensate counsel as provided above.”

23 . Kimery v. Public Serv. Co., 622 P.2d 1066, 1071 (Okla.1980); Roberts v. South Oklahoma City Hosp. Trust, 742 P.2d 1077, 1084 (Okla. 1986) (Opala, J., concurring opinion).

24 . Thirty nine counties do not qualify by population to have a public defender’s office.

25 . Reynolds v. Porter, 760 P.2d 816, 822-23 (Okla.1988).

26 . In re Integration of State Bar, 185 Okla. 505, 95 P.2d 113-14 (1939).

27 . See Offical Committee Comments to 5 O.S. Supp.1988 Ch. 1, App. 3-A, Rule 6.1.

28 . Recently, in Federal Trade Comm. v. Superior Court Trial Lawyers Assoc., 493 U.S. -, -, 110 S.Ct. 768, 778, 107 L.Ed.2d 851, 869 (1990), the United States Supreme Court discussed the issue of underpaid attorneys who represent indigents. This case, which is distinguishable from the one under consideration, involved a pool of attorneys who voluntarily represented indigents in Washington, D.C. After the lawyers became dissatisfied with the fees paid for their services, they refused to take new assignments. The United States Supreme Court held that this boycott constituted a horizontal arrangement among competitors resulting in a restraint of price and output in violation of the antitrust laws. Here, the attorneys have received mandatory appointments; they did not volunteer for the appointment; and the lawyers are not boycotting indigent representation.

29 . Title 22 O.S.Supp.1983 § 1175.2(B)(4) pro- ' vides:

"4. That if the person whose competency is in question does not have an attorney, the court will appoint an attorney for the person who shall represent him until final disposition of the case;”.

30 . See note 7, supra.

31 . See note 8, supra.

32 . Okla. Const, art. 5, § 46 provides in pertinent part:

"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:

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Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals, or providing or changing the methods for the collection of debts, or the enforcement of judgments or prescribing the effect of judicial sales of real estate; ...”

Okla. Const, art. 5, § 59 provides:

"Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.”

State v. Goforth, 772 P.2d 911, 914 (Okla. 1989); Reynolds v. Porter, see note 25, supra.; Maule v. Independent School Dist. No. 9, 714 P.2d 198, 204 (Okla. 1985).

33 . Prior to the 1988 amendment, the district attorney's salaries were based on population in the districts. Under 19 O.S.Supp.1988 § 215.30(B)(2) all district attorneys receive the same amount. Section 215.30(B)(2) provides in pertinent part:

"B. ... the annual compensation, payable monthly, of each district attorney shall be as follows: ...

2. For the period commencing in January, 1989 and ending in December, 1990, the sum of Fifty-six Thousand One Hundred Eighty Dollars ($56,180.00).”

The hourly rate was determined by $56,180.00 being divided by the twelve months in a year then divided by 160 hours for each month. Currently the public defender's salary is tied to the district attorney's salaries.

Title 19 O.S. 1981 § 137.2 provides for the salary for public defenders in counties of 24,727 —60,000 in population. It provides in pertinent part:

"... The public defender ... shall be paid from the funds in the county General Revenue Fund an amount to be determined by the board of county commissioners which amount shall not be in excess of ninety percent (90%) of the salary of the district attorney of such county ...”

Title, 19 O.S.1981 § 138.4 provides for the salary for public defenders in counties over 200,-000 in population. It provides in pertinent part:

"(a) ... a public defender on a full-time basis ... shall receive a salary commensurate with the salary received by the district attorney in said district, ...”

34 . Title 19 O.S.Supp.1988 § 215.34 provides in pertinent part:

"A. Effective January 1, 1983, full time assistants with less than one (1) year of experience ... shall receive a salary of not more than fifty percent (50%) of the salary of the district attorney of the district. Full-time assistants with over one (1) but less than two (2) years of experience shall receive not more than seventy percent (70%) nor less than fifty percent (50%) of the salary of the district attorney of the district. Full-time assistants with over two (2) years of experience but less than three (3) years of experience shall receive not more than eighty percent (80%) nor less than fifty percent (50%) of the salary of the district attorney of the district. Full-time assistants with over three (3) years of experience shall receive a salary of not more than ninety percent (90%) and not less than fifty percent (50%) of the salary of the district attorney of the district; except that the designated first assistant with over three (3) years of experience may receive up to ninety-five percent (95%) of the salary of the district attorney_”

35 . State ex rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816, 849 (1987).

36 . See 20 O.S.Supp.1989 § 1304.

37 . Capital cases are ones in which the death penalty is sought. See 21 O.S.Supp.1985 § 701.14.

38 . Vanderpool v. State, 672 P.2d 1153, 1157 (Okla.1983).

39 . In re Integration of State Bar, see note 26, supra. Opala, " ‘Inherent’ Powers of the Judiciary”, American Academy of Judicial Education — Judicial Independence & Separation of Powers Conference Materials (May 21-26, 1989).

40 . Broadrick v. State, 413 U.S. 601, 611, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830, 839 (1973); NAACP v. Alabama, 357 U.S. 449, 459-60, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488, 1498 (1958).

41 . Archer v. Ogden, 600 P.2d 1223, 1227 (Okla. 1979).

42 . Okla. Const. art. 7, § 4 provides in pertinent part:

"... "The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all Agencies, Commissions and Boards created by law...."

Okla. Const. art. 7, § 6 provides in pertinent part:

"... general administrative authority over all courts in this State, ... is hereby vested in the Supreme Court ...”

43 . Tweedy v. Oklahoma Bar Assoc., 624 P.2d 1049, 1052 (Okla.1981).

44 . Title 5 O.S.1981 § 12 provides:

“The Supreme Court of the State of Oklahoma shall have exclusive power and authority to pass upon qualifications and fitness of all applicants for admission to practice law in the State of Oklahoma, and the qualifications of such applicants shall be those which are now or may be hereafter prescribed by the statutes of Oklahoma and the rules of the Supreme Court.”

45 . Title 5 O.S.1981 § 16 provides:

"Within thirty (30) days after this act takes effect, the Supreme Court shall examine applicants for admission to the bar and all applicants who have heretofore been passed upon and allowed to take the examination of the Committee of State Bar Examiners shall be eligible for examination by the Supreme Court at its first examination, and thereafter the Supreme Court shall hold examinations for applicants at least twice each year and at such other times as the Supreme Court may prescribe.”

46 . Title 5 O.S.1981 Ch. 1, App. 1, art. 2, § 7(a), provides:

“(a) No attorney shall practice law in the State of Oklahoma who is not an active member of the Association, except as herein provided.”

47 . Title 5 O.S.Supp.1986 Ch. 1, App. 1-B, Rule 3 provides:

“Each attorney subject to these rules pursuant to Rule 2 herein shall attend, or complete an approved substitute for attendance, a minimum of twelve (12) hours of approved continuing legal education each calendar year beginning January 1, 1986.”

48 . Title 5 O.S.1981 § 13 provides:

“The Supreme Court of the State of Oklahoma shall have the exclusive power and authority to discipline attorneys and counselors at law or revoke the permit to practice law granted to attorneys and counselors at law and the rules of conduct of attorneys and counselors at law in this state shall he such as are now or may hereafter be prescribed by the statutes of Oklahoma and the rules of the Supreme Court.”