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The power to appoint an unwilling attorney, whether judicial or statutory in origin, has been challenged in principle on three grounds, founded in the Federal Constitution and its state counterparts: (i) that to require the lawyer to serve constitutes involuntary servitude, within the meaning of the thirteenth amendment;' (ii) that it constitutes an unlawful taking of property, or at the very least constitutes a taking for a public use which requires just compensation, under the fifth amendment;8 and (iii) that to subject attorneys as a class to such an obligation constitutes discrimination which would deny them equal protection of the laws, under the fourteenth amendment. If the issue is whether or not such a power exists at all, acceptance of the justifying propositions is generally regarded as sufficient to overcome the constitutional objections, by treating the burden as a condition of the license to practice. However, to the extent that the power exists and is considered discretionary in character, its exercise in a particular case may be challenged as an abuse of discretion, an unfair imposition on the lawyer in the specific circumstances. In this context, the considerations of fairness underlying the constitutional objections reappear as conditions of the exercise of the power in particular cases.



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