The Right to Counsel and the Appointed Counsel System

From Woman Lawyer: The Trials of Clara Foltz -- Online Notes For The Book

To start, see Babcock, Inventing the Public Defender, at nn.301-328.

Public defense has no common law roots because historically there was no right to any counsel at all in serious criminal cases. In Public Defenders and in her World’s Fair Speech, Foltz explained this history, citing 4 WILLIAM BLACKSTONE, COMMENTARIES 355 and following that text closely. In ancient England, judges and prosecutors protected the rights of the accused and produced evidence on his behalf. Counsel was never forbidden in the United States, but neither was it ever free. Federal and state constitutions provided the right, but the accused must pay or go without counsel, “and, thereby go without justice,” said Foltz.

From early on, the custom developed in most courts of appointing lawyers to serve the indigent defendant for free, especially if it appeared there might be a meritorious defense or the charge was serious. Many lawyers considered it an incident or duty of the profession, at least, even a badge of honor, to represent the poor and outcaste. COOLEY, CONSTITUTIONAL LIMITATIONS § 334 (1868) (“No one is at liberty to decline such an appointment”).

Some liberal precedents, notably Carpenter v. County of Dane, 9 Wis. 274, 277 (1859) (discussed further in section on Burdening the Right, in On-Line Note: Foltz’s Arguments for Public Defense, infra), held that appointed lawyers must be compensated by the state. But this idea was rejected early on in California, where the court held that it was part of the professional duty of counsel to render such services. Lamont v. Solano County, 49 Cal. 158, 159 (1874) (quoting Rowe v. Yuba Co., 17 Cal. 61, 63 (1860)).

In Public Defenders, Foltz acknowledged that “[p]rofessional ethics and sometimes the law require the lawyer not to reject the cause of the defenseless or oppressed.” Foltz argued that this did not mean the lawyer must be generally available for court appointment. She compared the physician’s ethic of care for the sick. “[Y]et no one would think of compelling a physician to be at the free command of an alms-house superintendent.” Another rationale for the lawyer’s duty to accept appointment was his professional concern with fairness and due process. Foltz objected to this one too. “He is no more interested in seeing justice done than any other citizen is, or ought to be.” Foltz, Public Defenders, at 400.