dissenting. Even though the majority opinion declares Ark. Stat. Ann. § 43-2419 (Supp. 1985) to be unconstitutional, the real problem presented by this appeal is not solved. The real issue is the accused’s right to effective assistance of counsel as required by the Sixth Amendment to the United States Constitution and Article 2, Section 10 of the Constitution of Arkansas. I believe it is a denial of the accused’s constitutional right to counsel if the attorney appointed by the court justifiably certifies that he is unable to effectively represent the accused and the attorney is nevertheless required to continue with the appointment.
The effect of the majority opinion is to force an able and outstanding lawyer in the field of civil litigation to undertake a criminal defense, which he readily admits he is not qualified to do. William K. Ball will, if required, likely do a better job than many self-proclaimed defense lawyers. But an honorable and decent attorney may eventually be placed in the position of being forced to admit that he was ineffective. If a Rule 37 petition is granted at some point in the future, his career and public image will be tarnished by the fact that he was held to be ineffective.
I believe the criteria set out in Ark. Stat. Ann. § 43-2419 provide a sound standard for determining when an appointed attorney should be allowed to withdraw as counsel. There is no requirement that the standard for withdrawal of counsel be statutory. Since the majority opinion has declared the statute unconstitutional, I believe we should adopt this standard as precedent or as a rule of this Court. The statute contains a good common-sense solution to the dilemma presented in this appeal.
In my opinion we should allow appellant to withdraw as counsel for the accused.