Discretionary appointment of counsel
While a state may have many statutes, court decisions, or court rules governing appointment of counsel for a particular subject area, a "Key Development" is a statute/decision/rule that prevails over the others (example: a state high court decision finding a categorical right to counsel in guardianships cases takes precedence over a statute saying appointment in guardianship cases is discretionary).
Legislation, All Basic Human Needs
Ind. Code § 34-10-1-2 states:
(a) This section may not be construed to prohibit a court from participating in a pro bono legal services program or other program that provides legal services to litigants: (1) without charge; or (2) at a reduced fee.
(b) If the court is satisfied that a person who makes an application described in section 1 of this chapter does not have sufficient means to prosecute or defend the action, the court: (1) shall admit the applicant to prosecute or defend as an indigent person; and (2) may, under exceptional circumstances, assign an attorney to defend or prosecute the cause.
(c) The factors that a court may consider under subsection (b)(2) include the following: (1) The likelihood of the applicant prevailing on the merits of the applicant's claim or defense. (2) The applicant's ability to investigate and present the applicant's claims or defenses without an attorney, given the type and complexity of the facts and legal issues in the action.
(d) The court shall deny an application made under section 1 of this chapter if the court determines any of the following: (1) The applicant failed to make a diligent effort to obtain an attorney before filing the application. (2) The applicant is unlikely to prevail on the applicant's claim or defense.
(e) All officers required to prosecute or defend the action shall do their duty in the case without taking any fee or reward from the indigent person.
(f) The reasonable attorney's fees and expenses of an attorney appointed to represent an applicant under section 1 of this chapter shall be paid from the money appropriated to the court: (1) appointing the attorney, if the action was not transferred to another county; or (2) from which the action was transferred, if the action was transferred to another county.
Until 2002, this statute actually guaranteed counsel to all indigent litigants in all civil cases. To read about the legislative history of the change, check out:
- Legislative Services Agency Office of Fiscal and Management Analysis, Fiscal Impact Statement for House Bill 1027 (Pauper Counsel in Civil Actions) (Feb. 22, 2002), available at http://www.in.gov/apps/lsa/session/billwatch/billinfo?year=2002&session=1&request=getBill&docno=1027.
- Legislative Services Agency Office of Fiscal and Management Analysis, Fiscal Impact Statement for Senate Bill 104 (Right to Pauper Counsel in Civil Actions) (Feb. 26, 2001), available athttp://www.in.gov/apps/lsa/session/billwatch/billinfo?year=2001&session=1&request=getBill&docno=104.
If "yes", the established right to counsel or discretionary appointment of counsel is limited in some way, including any of: the only authority is a lower/intermediate court decision or a city council, not a high court or state legislature; there has been a subsequent case that has cast doubt; a statute is ambiguous; or the right or discretionary appointment is not for all types of individuals or proceedings within that category.
Appointment of Counsel: discretionary Qualified: no