concurring:
The question of appointment of counsel in this case is close, not because I am convinced that the plaintiff does not have a promising malpractice case,1 but because the plaintiff may have difficulty in successfully bringing his proof within the Eighth Amendment.2 Nonetheless—and particularly since we are dealing here with a blind man—Judge Swygert’s analysis of the Maclin factors is entirely persuasive.3
But I write separately by way of comment on Judge Posner’s economic analysis in this case and in his dissent in McKeever v. Israel, 689 F.2d 1315 (7th Cir.1982). First, I cannot agree that the plaintiff, who complained of blurred vision in his left eye, had surgery on his good right eye and is now blind in both eyes, would have no chance in a malpractice case before a jury. Even if, as the dissent suggests, the plaintiff’s medical care was “solicitous,” it is not readily apparent to me why a jury could not find that someone had made a mistake and award generous damages. At least, I suspect that a man who became blind after medical procedures, but not in prison, might have had little difficulty in acquiring a lawyer on a contingent fee basis.
Perhaps, however, the laws of economics take a different turn when prison walls intervene. Not entirely facetiously, it occurs to me that the barriers to entry into *769the prison litigation market might be very high. I think our knowledge of the state of effective competition among attorneys for the business of prisoners with legal claims is slight. Hence, I am not prepared to consign to the verdict of the marketplace the issue of prisoner representation; and this is, of course, not the law.
The dissent suggests that the court’s furnishing the plaintiff with the names of lawyers in the area might be a suitable substitute for appointment of counsel. But is an incarcerated blind man in a position to take advantage of such information? Are prison authorities prepared to facilitate (or the bar associations to tolerate) the solicitations of prisoners by hungry lawyers waving contingent fee contracts? And are the prison authorities ready to accept a system of representation which would make demands for substantial damages de rigueur?
If there are real economic opportunities for lawyers in representing prisoners, then one appointment to such a task might open the door to later remunerative activity within prison walls. Perhaps appointment in such circumstances is not such a hardship after all.
In any event, justice demands that, in some cases, representation be supplied. I agree that these cases should be carefully limited. But we cannot assume that all prisoners’ suits are unmeritorious, and we should resolve any doubts in favor of a prisoner whose complaint is blindness. If we are to assume that prisoners’ suits are universally unmeritorious, the Maclin factors would not require appointments in virtually any set of circumstances. The fact is that a number of claims by prisoners may be important and meritorious, but may not call for copious damages. In these cases, in the probably typical situation of poor communication between prisoners and nearby lawyers, in the perhaps not atypical situations where even hungry lawyers may want more compensation than prisoners can provide and in certain other situations, appointment of counsel, subject to the Maclin factors, is still the preferable approach. I am sure we would all be pleased by a self-financing system of justice providing effective access to the courts even within prisons. But I see no immediate prospect of justice being entirely a function of a market theory which may bear little relation to the reality of the prison setting. Therefore, I think it is appropriate here simply to apply the Maclin factors and appoint counsel.
. It is true that Judge Sharp said at one point that he would direct a verdict if this were a malpractice case, but he also said, “The question in this case is not whether there was medical malpractice, the question here is whether or not there was by any of the defendants a deliberate indifference to serious medical needs.” Appellants’ App. at D-8. I do not believe it can be said that Judge Sharp made a "finding” about medical malpractice.
. The evidence that the prison medical authorities were aware of their deficiencies in treating sickle cell disease before Merritt’s injury may fortify the Eighth Amendment claim.
. I also note that this case appears to be controlled by our recent decision in McKeever. If anything, the defendant in this case has a much stronger claim, based upon the Maclin test, to having an attorney appointed to represent him than did the defendant in McKeever. McKeever is the law of this circuit, and it clearly mandates the result which we reach today.