dissenting.
The Court acts unnecessarily and unwisely in making our provisional rule in prohibition absolute. This holding is justifiable only if it can be said that Judge Roper was utterly without authority to appoint attorney Scott as counsel for an indigent plain*770tiff in a civil case. I believe that our circuit courts do not lack the authority to call upon members of the bar to assist them, and that this authority does not exclude the appointment of counsel in civil cases. This case, furthermore, is presented to us on a fragmentary factual showing such as would justify our quashing the preliminary rule in the exercise of our discretion.1
The plaintiff in the trial court is not a personage calculated to command sympathy. He has served approximately two years of a 25 year penitentiary sentence. While being examined at the state hospital at Fulton, he stuck sharpened paper clips into his abdomen,2 so that surgical removal was required. He now seeks to maintain a claim against the operating surgeons for malpractice in leaving permanent stitches in the incision. Yet we should not let this plaintiff’s apparent delinquencies lead us into a decision which may have adverse consequences for all indigent persons. We should bear in mind Justice O’Connor’s recent warning in Hudson v. Palmer, — U.S.—, 104 S.Ct. 8194, 3205, 82 L.Ed.2d 393 (1984), as follows:
The courts of this country quite properly share the responsibility for protecting the constitutional rights of those imprisoned for the commission of crimes against society. Thus, when a prisoner’s property is wrongfully destroyed, the courts must ensure that the prisoner, no less than any other person, receives just compensation....
I can appreciate the problem the relator, ' Scott, faces. He is selected from among all lawyers in the Thirteenth Judicial Circuit, and asked to undertake representation without fee. The record is silent, however, as to the particular demands which might be made on him. He has not been ordered to expend his own funds in the prosecution of plaintiff’s claim, and undoubtedly cannot be so required.3 He apparently has done nothing at all on account of his appointment, but rather has sued out the writ now before us, using a great deal of time which might have been devoted to the plaintiff’s interest in preparing his excellent brief.4 For reasons which follow, I am not willing to say that the Court is utterly lacking in power to make this appointment.
I am distinctly disappointed in the position taken by the Missouri Bar. I assume that the brief filed on its behalf was filed by authority of its Board of Governors. Counsel, undoubtedly unpaid, has been diligent in research, and the brief has been helpful in this respect, but the whole tenor of the brief is protection for lawyers and there is ho suggestion whatsoever about how the plaintiff might receive legal assistance in presenting his claim. The brief seeks to conjure up hobgoblins, such as excess of litigation and burdens on the courts, with no attention as to the provision of equal justice under law. I had hoped for more help from the Missouri Bar in dealing with the ultimate problem of this case.5
We face a crisis in legal services for the indigent. I agree with the observation in the principal opinion that, because of the pressure of overhead costs, lawyers in private practice face increasing difficulty in rendering services without remuneration. At one time it was thought that legal ser*771vices organizations, substantially supported by public funding, might provide services more effectively than volunteers could, but now we are told that federal expenses other than in selected categories must be cut to the bone, that the state cannot shoulder the burden because the legislature’s authority to devise ways and means has been subjected to severe constitutional constraints, and that, above all, the citizenry must not be subjected to increased revenue claims. A few stalwart souls have striven to keep legal services for the poor alive, but in a precarious state and without prospect for taking on increased responsibilities.
We are told that the respondent initially appointed Mid-Missouri Legal Services to represent the plaintiff, but was informed that the “charter” of that organization precluded its handling of “fee generating” cases, which a claim for damages for malpractice presumably is. These assertions do not wholly satisfy me. Some legal services offices assume representation of an indigent, even in damage suits, if it is demonstrated that private lawyers are not willing to handle the case. The respondent might also explore the possibility of appointing one or more of the individual lawyers of the legal services organization. Their employer’s time is no more sacred than that of a private practitioner. It appears at this stage, however, that no publicly financed legal services are available to the plaintiff.
The Missouri Bar, and the principal opinion, offer the plaintiff only the suggestions of Judge Posner, one of the bright new lights of jurisprudence with his theories melding law and economics. The judge suggests, in his dissenting opinion in Merritt v. Faulkner, 697 F.2d 761 (7th Cir. 1983), that the “market place” should determine the availability of legal services to an impoverished plaintiff in a damage suit.
If a plaintiff has a good case, he reasons, a lawyer will be willing to take the case on a contingent fee. He does not say directly, but it follows by implication that this hypothetical lawyer will advance such discovery expenses, experts’ fees, and other preparation expenses,6 so that the case may be brought on for trial or in appearance of seriousness created such as will impress the adjusters. He concludes that those who deserve legal services in damage suits can get them.
Posner’s Darwinistic analysis, apparently endorsed by the principal opinion, is not wholly satisfying. The Supreme Court of the United States, in other context, has condemned an arrangement which makes the lawyer the final judge in a case with total authority to forestall further proceedings.7 There should be some way that an indigent person who wants to make a claim may have access to a lawyer responsible to him or her, for personal professional advice. The principal opinion does not persuade me that the respondent absolutely lacks power to make an appointment.
I.
There are circumstances which indicate that we should quash the preliminary rule, in the exercise of our discretion. Respondent’s order simply appoints the relator, and nothing more. I am surprised at the selection of such an unappealing ease for the rare exercise of the authority to appoint. The relator sought no less drastic relief, but attacked the respondent’s order at the threshold and applied for our writ without trying to obtain a further understanding of his duties, or having even a preliminary interview with the claimant. The respondent has made no attempt to use the coercive power of the court, but has simply stood aside while the relator asks us for relief. There is at least a suspicion that *772an issue has simply been framed in the hope of obtaining our decision.
Under the circumstances it is entirely appropriate to quash the preliminary rule. If the relator is burdened further, as by a contempt citation, he may then ask for appropriate relief.
II.
Before reaching the merits I would dispose a spurious issue. Both the relator and the Missouri Bar inflate the spectre of malpractice suits against a lawyer who undertakes representation of an indigent person, but is unsuccessful in litigation because he does not advance the funds necessary to prepare for trial as to secure expert witnesses. An appointed lawyer cannot be obliged to advance funds in a criminal case,8 a fortiori there is no obligation to do so in a civil case. The failure to advance funds breaches no duty to the client, and cannot be made the subject of a civil action. The respondent has not ordered the relator to advance any expenses. To the extent that the Missouri Bar’s brief suggests that she has, the brief is in error.
Too often the chimera of litigation is thrown out as an excuse for inaction. I agree that a lawyer may be sued for malpractice even in a case in which no fee is received, for professional duties are imposed by law and not exclusively by contract. Discussion of potential liability for malpractice for failure to advance expenses, however, has no proper part in this case.
III.
I cannot agree with the principal opinion that the plaintiff, being a prisoner, is without the coverage of § 514.040, RSMo 1978. Section 205.590 was enacted in order to define the persons entitled to maintenance at public expense, and not to exclude anyone from possible assistance under other statutes.
My position on the coverage of § 514.040 obliges me to consider the constitutionality of that statute as against the challenges levied against it. The principal opinion has disposed of the “involuntary servitude” arguments.9 I would also reject arguments based on taking of property and deprivation of due process of law, under the federal and state constitutions. I have found the Attorney General’s brief, submitted in defense of the statute, very helpful.
As the principal opinion points out, § 514.040 has been with us since territorial days. It was on the books long before counsel in the case, and all members of the Court, were licensed to practice. Most of us probably did not know about the statute when we took our oaths, but we probably should have known of it. I would hesitate to say that the statute is unconstitutional, and that we could accept the benefits of bar membership with the reservation that this very clear statute will not be applied to us.
Our Court, for many years, has upheld the authority of trial judges to appoint counsel in criminal cases. State ex rel. Gentry v. Becker, 351 Mo. 769, 174 S.W.2d 181 (1943). The power was asserted, as against the constitutional challenges now made, in State v. Green, 470 S.W.2d 571 (Mo. banc 1971), with notice to the legislature that means of compensation would be sought if the legislature did not take appropriate action. Then in State ex rel. Wolff v. Ruddy, 617 S.W.2d 64 (Mo. banc 1981), the power was reasserted “without apology,” when the legislature failed to authorize sufficient funding. Some states may take a contrary position, but our Court has unequivocally spoken out in favor of the power to appoint counsel.
Contrary to the position of the Missouri Bar, I see no essential difference between appointment of counsel in civil cases and criminal cases. Missouri courts here appointed counsel in criminal cases long before Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), when the *773duty to furnish counsel to criminal defendants was extremely limited.10 If a requirement of uncompensated services in a criminal case does not constitute a “taking of property,” or an “involuntary servitude,” or a deprivation of due process, then it cannot be said categorically that such violations exist in civil appointments. The two kinds of cases differ in degree but not in quality.
The presence of a federal constitutional requirement for appointment of counsel in all cases in which imprisonment might be possible11 actually strengthens the constitutional argument against appointment of uncompensated counsel. Prior appointments were justified by our courts’ concern for the administration of justice. This concern extends to civil cases as well as criminal. Now the state asserts the authority to commandeer lawyers’ services so that it may discharge its federal obligations without expense.
I do not approve of the practice of sponging off lawyers, but, if lawyers are to be appointed in criminal cases without compensation, as our opinions assert that they may be, I see no logical distinction which would utterly exclude civil cases. Nor, under the current state of our law, am I able to hold that a statute such as § 514.040 is facially unconstitutional.
Appointments of counsel have been handled with a degree of consensuality, in my experience. I have often served on court appointments, and I am sure that my brethren have also. When a judge said, “help me out,” I really felt that I had no choice. Perhaps I had in mind the old army maxim that the commanding officer’s desire is the subaltern’s command. Perhaps I thought that the court could use its coercive power. I found, however, that judges were sensitive when good reason for declining appointments were advanced, and were willing to explore alternatives. By issuing our absolute writ, we strip the respondent of her bargaining power.
I would not foreclose the possibility that a court might make demands on appointed counsel which are so burdensome as to pose constitutional problems. Constitutional standards may be quantitative as well as qualitative.12 Nothing now before us shows that any such demands have been made on the relator. I believe that the trial court has the authority to require him at least to consult with the plaintiff and to make a preliminary evaluation of his claims. If the plaintiff, as a convict, is disabled from suing except through a trustee, the relator might inquire into the possibility of appointing one.- The court, at relator’s request, might appoint additional counsel if a sharing of the load might help. If the case appears promising, relator might consult one of the personal injury lawyers who, Judge Posner assures us, are ever available for promising damage suits. The relator might find out whether members of the medical profession, or of medical faculties, or perhaps medical students, are willing to undertake preliminary consultation without fee. The Missouri Bar might tender its good offices in finding a lawyer willing to undertake plaintiff’s representation. If, after the investigation, the relator is of the opinion that the plaintiff does not have a viable case, he might apply to the trial court for relief, just as Mid-Missouri Legal Services did.13
*774The respondent has not presently made any substantial demands on the relator. There is no basis for our assuming that she will do so, or that she will be deaf to claims of substantial burden. As I have said before, there is no authority for requiring the relator to undertake any substantial expenditures in the course of uncompensated representation. But I would not find unconstitutionality in requiring an appointed attorney to buy gasoline, or to pay for a few telephone calls, or to incur other minimal expenses. Attorneys appointed in criminal cases have customarily done this.
The provisions of § 514.040, RSMo 1978 that attorneys appointed shall “perform their duties in such suit without fee or reward” might not preclude an allowance for an attorney who is successful in establishing a “fund,” under familiar equitable principles.14 Or there might be an expansive definition of “costs.” I mention these possibilities to show that there are numerous possibilities not presently at issue which militate against the heavy hand of the absolute writ. The provision for “service without fee or reward” was undoubtedly designed to protect counties or other governmental units against claims, and not necessarily to preclude compensation which does not come from the public coffers.
It is also appropriate to put to rest another red herring conjured by the Missouri Bars brief, in which it is suggested that
this court would be opening Pandora’s Box if it should hold that indigent civil litigants had a constitutional right to free counsel.
There follows a list of frivolous actions that might be filed if the barriers were let down. The effort is misguided. No issue of constitutional right to free counsel is involved. Appointments under § 514.040 are entirely discretionary. It may not be
assumed that the respondent will abuse het discretion in making appointments.
ÍV.
I anticipated an argument that § 514.040 might be challenged as an invasion of the authority of the judiciary in the governance of the bar by the legislative authority, all in violation of Art. II, Sec. 1 of the Missouri Constitution. I would solve this by asserting inherent power.
In contrast to the principal opinion, I would align Missouri on the side of those who hold that there is inherent power in a trial court, in its discretion, to appoint counsel to assist a civil litigant.15 Appointments in criminal cases have been made without express statutory authority, and represent an exercise or inherent power. The exercise of this power in civil cases differs only in degree.
I do not challenge the exhaustive historical analysis of the principal opinion. It simply discloses a difference of opinion, in which we are free to take our own position. My strong preference would be for public funding for legal services both in civil and in criminal cases. But these are not available, so the respondent must do her best with available resources, and so must this Court.
My conclusions are consistent with Art. I, Sec. 14 of the Missouri Constitution, reading as follows:
That the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay.
I believe that § 514.040 is a proper measure in implementing this provision, and that the courts may also rely on their inherent power in doing so.
*775For the reasons stated, I would quash the provisional rule in prohibition.
. State ex. rel. St. Louis County v. Stussie, 556 S.W.2d 186 (Mo. banc 1977).
. The psychiatric evaluation at Fulton seems to have been quite in order.
. Williamson v. Vardeman, 674 F.2d 1211 (8th Cir.1982), and State ex rel. Wolff v. Ruddy, 617 S.W.2d 64 (Mo. banc 1981) hold that lawyers appointed to represent indigent criminal defendants may not be required to advance substantial expenses. The respondent’s overruling of the relator’s motion to advancement of expenses is not an order that counsel advance expenses.
. The relator, in a post-hearing application, advises that he interviewed the defendant by telephone and sought to obtain medical information. I do not question his diligence. See Note 13.
. I recognize the Missouri Bar’s Lawyer Referral Service, which might refer the plaintiff to a lawyer who would visit with him and consider his case. It well might have put the plaintiff in touch with the Service, possibly mooting this case.
. This plaintiff has no need of rent payments or grocery money sometimes advanced by counsel when a satisfactory settlement offer is not forthcoming.
. State defendant was denied required fair procedure where appointed counsel for appeal took no action, but advised court that he found no merit on appeal. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
. See, Note 3, supra.
. See, Note 1, Principal Opinion.
. Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942).
. Gideon v. Wainwright, supra, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
. City of St. Louis v. Brune, 466 S.W.2d 677 (Mo.1971).
. Relator, in a post-hearing submission, advises us that he did make a substantial investigation, and that he concluded that the plaintiffs case was so without merit that he would not take it on a contingent fee. He says that he felt that he should not disclose these conclusions to the trial court, because of possible prejudice to the plaintiff. I see no reason why he should not have made full disclosure. Had he done so the judge, in her discretion, might well have vacated the appointment or sought other counsel. I cannot imagine a course more detrimental to the plaintiff than the one he took. His post-opinion disclosures provide an additional reason for quashing the writ, and increase my suspicion that an issue was framed for a test case.
. A person who succeeds in recovering or preserving a fund may demand contribution for expenses of maintaining the litigation and fees of counsel. Franz v. Buder, 82 F.Supp. 379 (E.D.Mo.1932).
. Ex parte Dibble, 279 S.C. 592, 310 S.E.2d 440 (App.1983), In re Smiley, 36 N.Y.2d 433, 369 N.Y.S.2d 87, 330 N.E.2d 53 (1975), Yarbrough v. Superior Court of Napa County, 150 Cal.App.3d 388,197 Cal.Rptr. 737 (1 Dist.1983), In Interest of D.B., 385 So.2d 83 (Fla.1980), Caron v. Betit, 131 Vt. 53, 300 A.2d 618 (1972).