Discretionary appointment of counsel

Court Rule or Initiative, Bypass of Parental Input into Abortion - Minor

In Baird v. Attorney General, 360 N.E.2d 288 (Mass. 1977), the Court held that in the context of a minor seeking court approval of her right to abortion despite one or more parents disapproving, the trial judge had the power to appoint counsel for the minor to assist her in the assertion of her constitutional rights, pursuant to Mass. R. Civ. P. 17(b) (in civil action, "the court shall appoint a guardian ad litem for an infant ... not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant.")


The question wasthen  raised whether a judge may appoint counsel if public funds are not available for the payment of attorneys' fees and expenses of the minor's counsel. The Baird Court held that:


In order to avoid a constitutional question concerning the burden on the assertion of a minor's constitutional rights which would arise from a contrary interpretation, we construe the statutes of the Commonwealth to authorize the appointment of counsel or a guardian ad litem for an indigent minor at public expense, if necessary, if the judge, in his discretion, concludes that the best interests of the minor would be served by such an appointment.


The court relied on a prior case called Abodeely v. Worcester County, 227 N.E.2d 486 (Mass. 1967), which had involved appointment pursuant toa  court rule and not a constitutional right, and commented that "If a county must pay the cost of court-appointed counsel in a criminal case, regardless of prior appropriation, even where the appointment of counsel may be mandated only by court rule and not by constitutional considerations (see Abodeely), we see no reason to deny counsel for an indigent minor in asserting a constitutional right to an abortion in a State-mandated civil proceeding before a judge of the Superior Court." 

Appointment of Counsel: discretionary Qualified: no