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2005 B.Y.U.L. Rev. 835, *913

clearly apply to victims. Illustrative of these decisions is the thoughtful analysis by the U.S. District Court for the District of Nebraska in Bothwell v. Republic Tobacco Co. 312 Bothwell presented four grounds for its holding that courts have inherent power to appoint attorneys to represent indigent litigants:

1) courts possess the inherent power to bring to their assistance those "instruments" necessary to ensure a "fair and just" adjudicative process in individual cases; 2) in many, if not most, cases, due to the adversarial nature of our system, lawyers are a necessary component in ensuring such a "fair and just" process; 3) to a significant degree, neither the private marketplace nor public or charitable efforts provide indigent litigants with adequate access to legal assistance; and 4) to that extent, such failure threatens the reliability of the results of the adversarial process. 313

These grounds readily apply to appointing attorneys for indigent victims when important rights under the CVRA are at stake. Without [*914] an attorney to press her claims, a victim may be unable to obtain a "fair and just" adjudicative process. 314 Moreover, crime victim representation appears to be a prime example of a situation where "neither the private marketplace nor public or charitable efforts provide indigent litigants with adequate access to legal assistance." 315 No financial incentive will drive lawyers to represent victims in criminal cases. 316 And while pro bono representation for victims is expanding, 317 it still falls far short of the needs of victims in the federal system. The fourth and final requirement - that the failure of attorneys to represent the indigent client threatens the reliability of the system - is also present where rights under the CVRA are at stake. Neither the prosecutor nor the defendant has a personal stake in the victim's rights, and, frequently, they will have other priorities and interests that may even be adverse to the rights of the victim. 318 Accordingly, courts have inherent authority to appoint counsel to represent indigent victims and, indeed, may even be able to require [*915] counsel to serve without compensation. 319 The local rules of some federal courts already explicitly recognize this power. 320

In addition to this inherent authority, federal courts appear to possess statutory authority to make such an appointment. Title 28 broadly permits the court in both civil and criminal cases to "request an attorney to represent any person unable to afford counsel." 321 Moreover, at least one statute already directly authorizes federal courts to appoint counsel for child victims in

Zelin, Court Appointment of Attorney To Represent, Without Compensation, Indigent in Civil Action, 52 A.L.R. 4th 1063 (1987 & Supp. 2004).

312 912 F. Supp. 1221 (D. Neb. 1995).

313 Id. at 1229.

314 See generally John W. Gillis & Douglas Beloof, The Next Step for a Maturing Victim Rights Movement: Enforcing Crime Victim Rights in the Courts, 33 McGeorge L. Rev. 689, 692 (2002).

315 Bothwell, 912 F. Supp. at 1229.

316 See Gillis & Beloof, supra note 314, at 698-700.

317 See infra note 324 and accompanying text (discussing funding in the CVRA for the National Crime Victims Law Institute and other legal clinics for victims).

318 See Gillis & Beloof, supra note 314, at 692.

319 See Mallard v. U.S. Dist. Court, 490 U.S. 296, 307 & n.8 (1989) (leaving open the question of whether federal courts possess the inherent authority to require counsel to provide legal services to the poor). Several lower courts have concluded that appointment without compensation is proper. See Bothwell, 912 F. Supp. at 1230-34 (counsel have a duty to serve without compensation); Family Division Trial Lawyers of the Superior Court-D.C. v. Moultrie, 725 F.2d 695, 705 (D.C. Cir. 1984) (rejecting argument that pro bono appointment violates the Thirteenth Amendment because attorneys can take steps to avoid the pro bono appointments and holding that pro bono court appointments are not per se "takings," as accepting court ordered representation of indigents is a condition of receiving a law license, but excessive burden could present takings problem); Williamson v. Vardeman, 674 F.2d 1211, 1211 (8th Cir. 1982) (noting that pro bono service is a voluntary obligation undertaken by attorneys when they apply for a license to practice law); Tyler v. Lark, 472 F.2d 1077, 1079-80 (8th Cir. 1973) (no takings problem with appointment); United States v. Dillon, 346 F.2d 633, 635-36 (9th Cir. 1965) (no taking problems with appointment). But see State ex rel. Scott v. Roper, 688 S.W.2d 757, 759-70 (Mo. 1985) (questioning power of courts to appoint counsel without providing compensation).

DAVID SCHOEN
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