Immediately on the heels of Turner v. Rogers, the U.S. Supreme Court decision holding that it was not per se wrong for the state of South Carolina to jail an indigent parent for contempt on a child support matter without providing counsel, the South Carolina Supreme Court has held that the Takings Clause of the 5th Amendment of the U.S. Constitution is implicated when an attorney is appointed by the court to represent an indigent litigant. In such circumstances, the attorney's services are property entitling the attorney to just compensation; the constitutional protection extends to all court-ordered appointments.
The opinion, Brown v. Howard, includes this ringing affirmation of attorneys' professional value from a 1987 Kansas case, State v. Smith, 747 P.2d 816, 842:
Attorneys make their living through their services. Their services are the means of their livelihood. We do not expect architects to design public buildings, engineers to design highways, dikes, and bridges, or physicians to treat the indigent without compensation. When attorneys' services are conscripted for the public good, such a taking is akin to the taking of food or clothing from a merchant or the taking of services from any other professional for the public good. And certainly when attorneys are required to donate funds out-of-pocket to subsidize a defense for an indigent defendant, the attorneys are deprived of property in the form of money. We conclude that attorneys' services are property, and are thus subject to Fifth Amendment protection.
The ruling had been requested by the South Carolina Bar. The court, however, did not heed the Bar's call for specific guidelines for attorney compensation, declining to set "bright-line rules."
