| --- |
| title: "House Oversight: Estate Documents (Nov 12) (HOUSE_OVERSIGHT_017760)" |
| source: "House Oversight: Estate Documents (Nov 12)" |
| sourceUrl: "https://www.justice.gov/epstein" |
| date: "2026-01-01" |
| category: "House Oversight" |
| eftaNumber: "HOUSE_OVERSIGHT_017760" |
| ocrPages: 1 |
| ocrChars: 4820 |
| ocrElapsed: 0.0 |
| parseTier: "external-legacy" |
| engine: "engine undisclosed (ep-nov-12.greg.technology mirror)" |
| externalSource: "greg-ep-nov-12" |
| externalLicense: "not granted" |
| externalCredit: "ep-nov-12.greg.technology" |
| externalUrl: "https://ep-nov-12.greg.technology" |
| --- |
| |
| Page 46 of 52 |
| 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 |
| Lawvers 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 |
| HOUSE_OVERSIGHT_017760 |
| |
