Will we end up in the Supreme Court?
October 29, 2007 8:12 PM Subscribe
What are the limits of court-appointed legal assistance?
I'm currently involved against my will in a court case being brought by someone who has requested--and been granted--a court-appointed attorney to bring his action. I didn't previously know that such a thing was possible; I think I assumed that public defenders were just that, for criminal defendants. Now I'm interested to hear more about what is and isn't available. For instance, what about incidental costs that would normally be borne by the plaintiff, such as paying for DNA testing (ours is a custody case, so this could be relevant to us, but I'm not looking for advice on our case, just general info)? Can someone using a court-appointed lawyer file an appeal, also using a court-appointed lawyer, if the case doesn't go his way? I'm curious now about what the limits are--and aren't. Lawyers and informed laypeople, enlighten me.
I'm currently involved against my will in a court case being brought by someone who has requested--and been granted--a court-appointed attorney to bring his action. I didn't previously know that such a thing was possible; I think I assumed that public defenders were just that, for criminal defendants. Now I'm interested to hear more about what is and isn't available. For instance, what about incidental costs that would normally be borne by the plaintiff, such as paying for DNA testing (ours is a custody case, so this could be relevant to us, but I'm not looking for advice on our case, just general info)? Can someone using a court-appointed lawyer file an appeal, also using a court-appointed lawyer, if the case doesn't go his way? I'm curious now about what the limits are--and aren't. Lawyers and informed laypeople, enlighten me.
Response by poster: But I'd be interested to hear about other jurisdictions, as well. I mean, I am curious about how much hell this guy can put us through, but I'm also just curious about the question in general.
posted by not that girl at 8:28 PM on October 29, 2007
posted by not that girl at 8:28 PM on October 29, 2007
Are you sure you aren't dealing with a guardian ad litem to represent the minor in the custody case?
posted by 45moore45 at 8:29 PM on October 29, 2007
posted by 45moore45 at 8:29 PM on October 29, 2007
Controlled by the agreement between attorney and client. More information would be helpful. Is this a non-profit, or the public defender's service?
posted by Ironmouth at 8:31 PM on October 29, 2007
posted by Ironmouth at 8:31 PM on October 29, 2007
Response by poster: OK, I see that being hypothetical didn't work! So I'll try for the short version of our situation.
In August, we took custody of a baby girl in Illinois. The bmom surrendered parental rights, which in IL is irrevocable. The bmom claimed not to know who the bfather was, but after the placement she changed her mind, both about the placement and about not knowing who he was.
The birthfather (or someone claiming to be him--the bmom is clearly the puppetmaster in this case and we're not assuming he's the real guy at this point) registered with the putative father's registry, as required by law. He failed to follow up by petitioning the court for a parentage action within an additional 30 days, which IL law requires. He also failed to appear for a hearing scheduled by our attorney, which he was informed of.
Last week, though, he surfaced, and asked the court to appoint him an attorney so he can contest the adoption. This morning, in what was apparently a quite dramatic morning in court, with the bmother also appearing and behaving so badly she had to be removed from the room, the judge agreed to appoint him an attorney, and that will happen sometime in the next few weeks. So, Ironmouth, to answer your question, it seems to be the public defender's service.
I'm really not looking for advice about our case (though perhaps next week's question will be, "Are they going to take our baby away?"). Like I said, I was interested that it was possible for him to get a public defender for this purpose, and I'm curious now about what public defenders will and won't do, can and can't do. I would be interested in hearing from non-Illinois people, too, about what's possible in their jurisdiction.
As I said, there are incidental expenses that might normally be his (or a plaintiff, more generally) responsibility, and there's always a possibility of appeal, so I'm curious about what is available to indigent people needing legal help of this kind.
posted by not that girl at 8:41 PM on October 29, 2007
In August, we took custody of a baby girl in Illinois. The bmom surrendered parental rights, which in IL is irrevocable. The bmom claimed not to know who the bfather was, but after the placement she changed her mind, both about the placement and about not knowing who he was.
The birthfather (or someone claiming to be him--the bmom is clearly the puppetmaster in this case and we're not assuming he's the real guy at this point) registered with the putative father's registry, as required by law. He failed to follow up by petitioning the court for a parentage action within an additional 30 days, which IL law requires. He also failed to appear for a hearing scheduled by our attorney, which he was informed of.
Last week, though, he surfaced, and asked the court to appoint him an attorney so he can contest the adoption. This morning, in what was apparently a quite dramatic morning in court, with the bmother also appearing and behaving so badly she had to be removed from the room, the judge agreed to appoint him an attorney, and that will happen sometime in the next few weeks. So, Ironmouth, to answer your question, it seems to be the public defender's service.
I'm really not looking for advice about our case (though perhaps next week's question will be, "Are they going to take our baby away?"). Like I said, I was interested that it was possible for him to get a public defender for this purpose, and I'm curious now about what public defenders will and won't do, can and can't do. I would be interested in hearing from non-Illinois people, too, about what's possible in their jurisdiction.
As I said, there are incidental expenses that might normally be his (or a plaintiff, more generally) responsibility, and there's always a possibility of appeal, so I'm curious about what is available to indigent people needing legal help of this kind.
posted by not that girl at 8:41 PM on October 29, 2007
Best answer: Situations where a person is appointed a state-funded attorney to bring an action are unusual, but they occur. I'll speak generally from my own experience ... this may or may not apply in your state.
The situation like this that I'm most familiar with is where a custodial parent is seeking child support from a deadbeat non-custodial parent (the deadbeat is usually, of course, the father). The cases are often styled "State ex rel. [custodial parent] v. [deadbeat parent]." Technically, I am not sure the state is "representing" the plaintiff; rather, the state may be asserting its own interest which is aligned with the plaintiff's, but the effect is pretty much the same.
And counsel can also be appointed in cases like yours, where some issue affecting a child's best interest is in play. Because the standard for custody is usually best interest of the child, if a parent is indigent, and there appears to be merit in a parent's claim, an attorney may be appointed.
Yes, in such cases, appeals can be filed, at taxpayer expense. The state may shoulder the cost of incidental expenses, which could be assessed against you, the defendant, if you lose.
posted by jayder at 8:42 PM on October 29, 2007
The situation like this that I'm most familiar with is where a custodial parent is seeking child support from a deadbeat non-custodial parent (the deadbeat is usually, of course, the father). The cases are often styled "State ex rel. [custodial parent] v. [deadbeat parent]." Technically, I am not sure the state is "representing" the plaintiff; rather, the state may be asserting its own interest which is aligned with the plaintiff's, but the effect is pretty much the same.
And counsel can also be appointed in cases like yours, where some issue affecting a child's best interest is in play. Because the standard for custody is usually best interest of the child, if a parent is indigent, and there appears to be merit in a parent's claim, an attorney may be appointed.
Yes, in such cases, appeals can be filed, at taxpayer expense. The state may shoulder the cost of incidental expenses, which could be assessed against you, the defendant, if you lose.
posted by jayder at 8:42 PM on October 29, 2007
Whoops, should have previewed.
Your more detailed account is interesting. The rights of natural parents are well-recognized --- it's very hard to terminate a natural parent's rights --- so that's a situation where a court is obligated to provide counsel to an indigent person.
I'm curious now about what public defenders will and won't do, can and can't do.
They can and will do anything a private attorney can do. The state is funding the representation, so costs and expenses will generally be covered. Now, as a practical matter, who knows how good the appointed counsel will be.
Technically, "public defender" is probably not the right term, because public defenders do criminal defense. At least where I live (not Illinois) there is an appointments list of private attorneys who are appointed to represent the indigent in cases such as the one you describe.
posted by jayder at 8:48 PM on October 29, 2007
Your more detailed account is interesting. The rights of natural parents are well-recognized --- it's very hard to terminate a natural parent's rights --- so that's a situation where a court is obligated to provide counsel to an indigent person.
I'm curious now about what public defenders will and won't do, can and can't do.
They can and will do anything a private attorney can do. The state is funding the representation, so costs and expenses will generally be covered. Now, as a practical matter, who knows how good the appointed counsel will be.
Technically, "public defender" is probably not the right term, because public defenders do criminal defense. At least where I live (not Illinois) there is an appointments list of private attorneys who are appointed to represent the indigent in cases such as the one you describe.
posted by jayder at 8:48 PM on October 29, 2007
Response by poster: Jayder, both your answers are helpful. I hadn't framed this as a case of the state having an interest in making sure the right thing is done for a child, but that makes sense. The list of private attorneys sounds right, too--my lawyer said that the court would consult attorneys on a list, each of whom could choose to take or refuse the case, until one was found, which sounds like what you're describing.
My lawyer, who refuses to speculate about the future but only always says, "We'll know more after [the hearing on Monday, the deadline to file, etc]," says that who the attorney is will be one piece of information that could tell us a great deal, in part because of the variability in competence, experience, and knowledge.
posted by not that girl at 9:42 PM on October 29, 2007
My lawyer, who refuses to speculate about the future but only always says, "We'll know more after [the hearing on Monday, the deadline to file, etc]," says that who the attorney is will be one piece of information that could tell us a great deal, in part because of the variability in competence, experience, and knowledge.
posted by not that girl at 9:42 PM on October 29, 2007
I only know a very little about this and definitely nothing specific about your state, but I do know that in dependency cases before the juvenile court all the parties involved who do not have their own lawyer but who have some standing in the cases can be appointed a lawyer by the court. In the cases I'm thinking of the lawyers are specially appointed to the dependency court from a list of private attorneys; that is they are not public defenders who are directly employed by the state, but come from a sort of roster and whose fees are paid for by the state for these cases.
These attorneys do vary in their experience and abilities - the one advantage they do all have is that they deal with lots and lots of these cases so they may be familiar with the workings of that particular court quite intimately.
Good luck to you, this sounds so very horrible.
posted by marylynn at 9:59 PM on October 29, 2007
These attorneys do vary in their experience and abilities - the one advantage they do all have is that they deal with lots and lots of these cases so they may be familiar with the workings of that particular court quite intimately.
Good luck to you, this sounds so very horrible.
posted by marylynn at 9:59 PM on October 29, 2007
In Illinois, the Office of the Public Defender is most emphatically not handling this (I was once an attorney in the PD office in Illinois). It is most likely a private attorney (or a firm) who is registered with the court and willing to handle these sorts of matters. The rights of a putative father are one of the few instances where this would necessarily happen.
I would, in fact, be startled to learn that any office of the public defender handled anything other than criminal cases. I once practiced in a state that had no actual office of the public defender, just a list of attorneys who would accept appointment to represent indigent defendants--They were often attorneys who handled mostly civil matters--but I have never heard of public defenders who handle civil matters on appointment, although when I was one, I knew more than one PD who took on a civil case to pursue relief they had been unable to get otherwise.
posted by crush-onastick at 5:37 AM on October 30, 2007
I would, in fact, be startled to learn that any office of the public defender handled anything other than criminal cases. I once practiced in a state that had no actual office of the public defender, just a list of attorneys who would accept appointment to represent indigent defendants--They were often attorneys who handled mostly civil matters--but I have never heard of public defenders who handle civil matters on appointment, although when I was one, I knew more than one PD who took on a civil case to pursue relief they had been unable to get otherwise.
posted by crush-onastick at 5:37 AM on October 30, 2007
I can speak on this issue in the context of court appointed counsel in Family Court in New York, but I don't know how helpful it will be to you, since New York's rules are interesting and, in my understanding, rather unique. However, you asked for out of jurisdiction input, so I will try to summarize.
Thanks to a somewhat recent push by the Office of Court Administration (OCA), a variety of litigants in NYS Family Court are now entitled to court appointed counsel. The counsel that is appointed could be from what is known as the 18-B panel (a panel of OCA approved attorneys who are paid by the state to represent indigent and unrepresented litigants) or from new institutional providers (think Legal Aid, but for parents in Family Court) that have been created by the OCA reform. These attorneys, as was noted by other people above, are never called public defenders because they're not working on a criminal case. They're called family court lawyers, 18-B attorneys, or court appointed counsel.
In my experience in NY, surrender of parental rights cases are viewed with great concern by the courts because of the enormity of the rights being litigated. Almost every opportunity is provided to the bioparents to appear with counsel to defend their rights, sometimes even if the bioparent doesn't show up until halfway through the proceeding. Once the bioparent shows up and shows his or her entitlement (ordinarily needs based) to court appointed counsel, and counsel is appointed, then that counsel has a duty to represent that client zealously which may include appeals and all other actions necessary to discharge the attorney's professional obligation. The cost is borne by the State of New York.
The caliber of court appointed counsel can vary greatly. 18-B attorneys in New York are often overworked and, until the recent reforms, underpaid. They also tend to be solo practitioners, without large amounts of institutional resources at their disposal. Sometimes, simply getting an 18-B on the phone can be a major victory for me. Institutional providers tend to be much better organized and have better resources at their disposal. It never pays to underestimate an 18-B though, because they often get on the panel after years of litigating in Family Court with more established firms and therefore have a wealth of experience and relationships with court personnel on their side. If you trust your lawyer, then your best bet would be to trust his or her instinct about the attorney who is ultimately selected.
I wish you luck in your litigation.
posted by lassie at 12:48 PM on October 30, 2007
Thanks to a somewhat recent push by the Office of Court Administration (OCA), a variety of litigants in NYS Family Court are now entitled to court appointed counsel. The counsel that is appointed could be from what is known as the 18-B panel (a panel of OCA approved attorneys who are paid by the state to represent indigent and unrepresented litigants) or from new institutional providers (think Legal Aid, but for parents in Family Court) that have been created by the OCA reform. These attorneys, as was noted by other people above, are never called public defenders because they're not working on a criminal case. They're called family court lawyers, 18-B attorneys, or court appointed counsel.
In my experience in NY, surrender of parental rights cases are viewed with great concern by the courts because of the enormity of the rights being litigated. Almost every opportunity is provided to the bioparents to appear with counsel to defend their rights, sometimes even if the bioparent doesn't show up until halfway through the proceeding. Once the bioparent shows up and shows his or her entitlement (ordinarily needs based) to court appointed counsel, and counsel is appointed, then that counsel has a duty to represent that client zealously which may include appeals and all other actions necessary to discharge the attorney's professional obligation. The cost is borne by the State of New York.
The caliber of court appointed counsel can vary greatly. 18-B attorneys in New York are often overworked and, until the recent reforms, underpaid. They also tend to be solo practitioners, without large amounts of institutional resources at their disposal. Sometimes, simply getting an 18-B on the phone can be a major victory for me. Institutional providers tend to be much better organized and have better resources at their disposal. It never pays to underestimate an 18-B though, because they often get on the panel after years of litigating in Family Court with more established firms and therefore have a wealth of experience and relationships with court personnel on their side. If you trust your lawyer, then your best bet would be to trust his or her instinct about the attorney who is ultimately selected.
I wish you luck in your litigation.
posted by lassie at 12:48 PM on October 30, 2007
In general, the federal constitutional right to counsel revolves around physical loss of liberty, so there's no absolute right to counsel in termination of parental rights cases. But federal due process probably requires appointment of counsel in many, if not most, cases. The leading US Supreme Court case is Lassiter v. Department of Social Services.
Here's a report by the Brennan Center on the right to civil counsel for all sorts of civil cases.
posted by footnote at 2:05 PM on October 30, 2007 [1 favorite]
Here's a report by the Brennan Center on the right to civil counsel for all sorts of civil cases.
posted by footnote at 2:05 PM on October 30, 2007 [1 favorite]
Response by poster: Lassie and footnote, thanks. I am interested in the legal reasoning and feel like I have a better sense of that. I'm always glad to start to overcome some piece of ignorance I've been carrying around.
posted by not that girl at 5:12 PM on October 30, 2007
posted by not that girl at 5:12 PM on October 30, 2007
« Older So is there an actual mouse and can I see its... | IN the words of Anita Ward, "Ring My Bell" Newer »
This thread is closed to new comments.
posted by LobsterMitten at 8:26 PM on October 29, 2007