You have the right to an attorney

November 20, 2007 6:03 PM

Tell me more about publicly-funded attorneys in non-criminal cases.

I asked this question a couple of weeks ago, and learned a lot from it. I've never been involved in the legal system before, and while I'm obviously concerned about our own case and its outcome, my intellectual curiosity is also engaged--it's got me reading law textbooks and stuff like that.
Now I'm curious again, and if I ask my lawyer to explain all this to me, it costs me money. I want to be clear I'm not asking for information or predictions about our own situation; I'm honestly interested in the process.
Short version is that we have a pending adoption of a baby girl. We've had legal custody since August. A putative father has come forward and is seeking to contest the adoption. The court has agreed to appoint him a lawyer, but right now nothing has been able to move forward because the court hasn't been able to find a lawyer who is willing to take the case. A hearing that was supposed to happen Nov. 19 has been postponed until some unspecified future date because of this, for instance.
As I understand it, publicly-funded attorneys in this kind of case are just regular practicing attorneys who've agreed to be on a list, and when they're offered a case, they can turn it down. So far, they've all turned down this one, and it makes me curious about things like:

1. When an attorney is offered this kind of case, how much information is provided? I read somewhere that about 80% of lawyers in custody and child support cases are publicly-funded, and I wonder whether the lawyer is told something general like, "Hey, it's a custody case," or are they given more details than that?
2. What kinds of criteria might an attorney use? I'm assuming that mundane things like case load would carry weight; maybe these attorneys allocate a certain percentage of their practice to such things. But do attorneys know enough to make a decision on the merit of the case? Are attorneys more willing to take a case that seems to them to have merit, or is that less relevant than serving the need of people in court to have competent counsel?
3. What kinds of fees do lawyers get for this kind of work? Is it generally less than they make in other cases? By a large amount?
4. Finally, if an attorney who is willing to take such a case can't be found, what recourse does the court have? If someone is entitled to an attorney, they're entitled to an attorney. Does the court have a method of compelling service at some point?

Our case is in Illinois, for what that's worth, but I'm really really not fishing for info about our case, and I'd be happy to hear general ideas about this practice from any jurisdiction.
It turns out the law and its practice are kind of fascinating. No wonder so many people are going to law school all the time.

posted by not that girl to Law & Government (14 answers total)

The "you have a right to an attorney" that everyone remembers from the Miranda warning is based on the Sixth Amendment, which reads (in part): "In all criminal prosecutions, the accused shall enjoy the right... ...to have the Assistance of Counsel for his defence."

Family law is not a criminal prosecution, so there is no constitutional right to have an attorney even if you cannot afford to pay for one.

Sounds like in your area they've got a program in place to offer legal assistance in family court for people who can't afford it. But it isn't a "right".
posted by Steven C. Den Beste at 6:36 PM on November 20, 2007

I can't answer any of your questions, but your post reminded me of this article about publicly-funded attorneys in Arizona juvenile court. Thought it might be of interest.
posted by mullacc at 6:46 PM on November 20, 2007

Response by poster: Steven C., the relevant statutes in Illinois (and I understand this is pretty common) specify that people involved in custody and child support cases are entitled to a publicly-funded lawyer if they are indigent. I was basing my question on that, and on my lawyer's information.
posted by not that girl at 7:00 PM on November 20, 2007

I was mistaken in the other thread. I talked to a friend of mine who's still in the Cook County PD and they do handle paternity cases. The PD's representation in the case will end once parentage is (or is not) established. When I was in the appellate agency for the Illinois Public Defender we were not appointed to any cases appealing parentage determinations. I don't believe they were part of our mandate. (In the Appellate Defender's Office, however, we were allowed to take on cases that we could not be appointed to, provided it did not interfere with our work).

The Public Defender cannot refuse an appointment to a case. However, some times the PD has a conflict and cannot represent a client. The PD may also be given permission to withdraw from a case if a client is refusing to participate in his defense to the point that the PD cannot function.

In Cook County, the PD office has pretty good ties to a lot of clinics and the pro bono departments of big firms. If a case requires better resources than the PD has, or if the PD knows someone would really be suited to the case, or if the PD just wants the case of her desk, she can (and does) refer it to the pro bono agency/clinic/attorney. With the court's permission, the other attorney can substitute for the PD.

When I did private juvenile defense for a legal clinic, we reviewed all the pleadings to date and interviewed the clients and sometimes potential witnesses before agreeing to take a case. We earned no fees at all--we were privately funded.

When no-one comes forward to take a case, the administrative judge will put pressure on someone to take it. It's really that simple.

Steven: termination of parental rights is a core proceeding that implicates fundamental Constitutional rights and Illinois recognizes a Constitutionally-guaranteed right to representation in the proceedings. The Due Process clause of the 14th Amendment is implicated in denial of the right to parent as one sees fit and although that is not the same as the 6th Amendment right to counsel in a criminal proceeding, Illinois at least takes that to mean counsel must be appointed to an indigent person who is claiming parentage and whose parental rights will be terminated to permit an adoption.
posted by crush-onastick at 7:04 PM on November 20, 2007 [1 favorite]

I thought about mentioning that there could be a provision relating to this in the Illinois constitution.

But that's not quite the same level as a right that derives from the Bill of Rights, or other US Constitutional provisions.
posted by Steven C. Den Beste at 7:12 PM on November 20, 2007

Sometimes the court has a list or "panel" of independent attorneys who want to take on defense cases on a case-by-case basis.

It's conventional wisdom that attorneys who are salaried and work in an established public defender's office provide a better level of representation than the panel attorneys. That's because although salaried attorneys have a high caseload, but get a salary instead of being paid by the case. Attorneys paid by the case have an incentive to take on too many cases. Also, their total fees are sometimes limited per case so they may not put all the work into the case that it needs. Salaried attorneys also get better training and support because they're part of an organization.

There are of course exceptions to this: pro bono attorneys assigned to individual cases can be very good; and "CJA Panel Attorneys" (independent lawyers who take federal criminal defense cases on a case-by-case basis) are usually quite good in some places.
posted by footnote at 7:28 PM on November 20, 2007

Actually, the right to counsel in a termination of parental right proceeding does derive from the US Constitution, the 14th Amendment, as I said. SCOTUS has never said counsel is required, but SCOTUS has applied the 14th Amendment due process test of "fundamental fairness" to termination of parental rights cases. I had to go look it up because I didn't remember the case name off hand (I don't cover much family cases when I teach Con Law). The case is SANTOSKY v. KRAMER, 455 U.S. 745 (1982) which held that a natural parent has a fundamental liberty interest in the care and custody of his or her child which is not extinguished merely because he or she is "not a model parent" or has lost temporary custody. A proceeding to deprive a natural parent of custody permanently or to terminate his rights, therefore, must adhere to the fundamental fairness due process standards under the 14th Amendment. At issue in Santosky was the burden of proof (New York at the time used a preponderance of evidence standard which was judged to be too low a threshhold for fundamental fairness in a core proceeding). But, as I'm sure you know, the right to counsel, right to pre-deprivation hearings, right to cross-examine, right to be present before the fact finder (among others) are all rights which procedural due process may require. The line of 14th Amendment jurisprudence protecting familial rights stretches at least as far back as Loving v. Virginia, 388 U.S. 1 (1967), (and probably further) and was not questioned as recently as Troxel v. Granville, 530 U.S. 57 (2000), even though SCOTUS struck down the law requiring grandparent visitation in all cases.

SCOTUS has also required that states must shoulder the burden of an indigent's appeal of a termination of parental rights under that small line of cases (Boddie, Lindsey and Kras) requiring state courts to provide access to its judicial processes without regard to a party's ability to pay court fees.
posted by crush-onastick at 7:30 PM on November 20, 2007 [1 favorite]

Response by poster: I was mistaken in the other thread. I talked to a friend of mine who's still in the Cook County PD and they do handle paternity cases. The PD's representation in the case will end once parentage is (or is not) established.

I wonder how that applies, or doesn't, to our case. Our guy actually missed his legal window to file for a parentage action, so it seems like the court is handling this as some other thing. It certainly sounds from what our lawyer has said like this is not being handled by a public defender.

I have appreciated your answers, crush. Thanks.
posted by not that girl at 7:30 PM on November 20, 2007

hey, no problem. This stuff is so much more interesting than my daily practice, so I'm happy to talk about it (and fact-check myself). Don't be afraid of pressing your own attorney for this kind of information though, especially since it pertains to your own case. You have a right to be as informed as you want to be. Just try to be sensitive to demands on your attorney's time (like, don't call every ten minutes), but asking for an in-depth explanation a couple times a month, that's perfectly reasonable.

Good luck with this; I'm sure it's stressful. You may or not remember the case with the Polish father about ten years ago, either, but Illinois has had some major scandals in termination cases.
posted by crush-onastick at 7:46 PM on November 20, 2007

Response by poster: Crush, are you talking about the Baby Richard case? I've been reading up on my famous custody battles. That was an interesting one, full of drama and lies. And it led directly to the modified statues that we're dealing with!

It is stressful. The law is pretty clearly on our side (it says, you know, putative fathers have to do X, Y, and Z, and he didn't do those things; on the other hand, it says adoptive parents have to do A, B, and C, and we have scrupulously done them) but it's scary nonetheless. And yet, as I said, at the same time, I am finding my glimpse into the legal system fascinating.
posted by not that girl at 7:51 PM on November 20, 2007

crush-onastick is entirely correct on the issue of the right to assigned counsel in certain Family Court proceedings in certain types of cases in certain jurisdictions. However, based on my reading of the question, that's not what the OP was asking about in the first place. While I do practice in this area of the law, I do not practice in Illinois. It appears that crush-onastick does, or did at some point. I would therefore value her answer. If you're looking for more in depth information than that, not that girl, would you consider speaking with your bar association? Or your lawyer?

I could tell you that in New York, assigned counsel doesn't have the option of refusing a case (barring certain circumstances), rarely gets a whole lot of information about the case beforehand, and normally makes about $90 (I think this is the new rate) an hour for in court time. None of this matters to you, however, since Family Law is so specific to the various states. I think your best bet is to consult with somebody who knows your jurisdiction well and is willing to talk to you about your particular questions. Of course, since you're already paying your lawyer, that's the first person I'd start with.
posted by lassie at 8:41 PM on November 20, 2007

It may be worth noting that almost all lawyers do some measure of pro bono work, for which they get paid nothing. Sometimes it's family court stuff that they've been appointed too, but other times it's projects given the go-ahead by their firm's pro bono director (if a big firm) or something they thought was interesting (if a small firm). These cases can be civil or criminal.

I think the american bar association ethics committee posts a suggestion, maybe 50 hours a year or so. It's not publically funded, but it is a way many people who couldn't afford representation can obtain it, especially in civil suits.

Also, the courts have held that in criminal cases, you're not guarenteed an attorney unless your liberty is at stake (i.e. if your case went to trial and you lost, you could be headed to prision). So, if you run a red light and want to fight the ticket, you can't get a court-appointed lawyer.
posted by craven_morhead at 9:00 PM on November 20, 2007

Response by poster: Thanks to everybody. This has been so interesting to me. I haven't wanted to take my lawyer's time asking her to explain processes to me that aren't directly relevant--mostly all I need to know for the purposes of our case is that the putative father will be appointed an attorney, and once that happens things can proceed. But next time we're on the phone, maybe I will ask her to tell me more about this process.
posted by not that girl at 9:49 PM on November 20, 2007

This is one of those facets of the law that sits at a weird intersection of bar/court services available to the public and lawyers' professional responsibility duties and local bureaucracy. Plus, there are variances (at least in DC) where some appointments are fully pro bono and others are paid at a marginal fixed fee per case, depending on the subject matter. And so on.

As you say, the inner workings of the program are not really useful for the purposes of your case, but since you just seem interested, probably the best thing you could do is try to call the court and find who runs the program. Call up and see if they'll answer your questions.

Or, you could find an attorney who takes that sort of appointment, and buy 'em lunch in exchange for telling you the nuts and bolts. Your attorney probably knows somebody who knows somebody who does it. They'll probably be far less surly than the civil servant. Plus, I think it's pretty cool that you're taking an interest in the way things work that is apart from what's specifically affecting you, and I would think other practitioners would, too.

Best of luck with your case.
posted by averyoldworld at 9:29 AM on November 21, 2007