Yesterday, we reported on the South Carolina Supreme Court's opinion in Brown v. Howard, No. 26991 (S.C. June 21, 2011), holding that "the Takings Clause of the Fifth Amendment to the United States Constitution is implicated when an attorney is appointed by the court to represent an indigent litigant. In such circumstances, the attorney's services constitute property entitling the attorney to just compensation."
The opinion is generating some buzz (see the Legal Profession blog and John Blackman's blog), so we thought we'd post the South Carolina Bar's amicus brief since the opinion focused on the Bar's arguments:
The South Carolina Bar appears Amicus Curiae. The Bar contends that the appointment of attorneys to represent indigent litigants implicates the Takings Clause of the Fifth Amendment to the United States Constitution. See U.S. Const. amend. V ("[N]or shall private property be taken for public use without just compensation."). We agree and hold today that the Fifth Amendment Takings Clause is implicated when an attorney is appointed to represent an indigent litigant. In such circumstances, the attorney's services constitute property entitling the attorney to just compensation.Our willingness to consider the Bar's request and our ruling today in no manner changes the nature of the practice of law in this state. Our holding is a narrow one, limited to an attorney's constitutional entitlement to compensation in appointed cases. We continue to adhere to the view that the license to practice law is a privilege and not a right. As such, the practice of law remains subject to control, regulation, and discipline—all as this Court directs.
(footnote omitted). Here's the brief.
Brief of SC Bar as Amicus Curiae, Brown v. Howard, No. No. 26991 (f8/20/2010)