Discretionary appointment of counsel

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Legislation, All Basic Human Needs

New York courts have a discretionary power to appoint unpaid counsel to in forma pauperis litigants. N.Y. C.P.L.R. § 1102(a) ("The court in its order permitting a person to proceed as a poor person may assign an attorney."). This power is as "broad . . . in a proper case." In re Smiley, 330 N.E.2d 53, 58 (N.Y. 1975); see also Morgenthau v. Garcia, 561 N.Y.S.2d 867, 869 (Sup. Ct. 1990) (noting that "proper case[s] . . . would include cases where indigent civil litigants face grievous forfeiture or loss of a fundamental right"). Where "(1) indigent status is not disputed . . . (2) prima facie merit of the claim or defense is indicated, and (3) counsel from federally- funded or other free legal services organizations is unavailable, failure to assign counsel . . . is an abuse of discretion."   See also In re Romano, 438 N.Y.S.2d 967, 970 (Surr. Ct. 1981) (a finding of merit in the indigent's case "does not call for a showing of substantial probability of success," but instead requires that that court be satisfied the claim is not frivolous).


The Garcia court noted that "[W]hile the court has discretion to assign counsel under CPLR 1102, if it were to assign such counsel in this civil action, there is no mechanism by which the court may direct the county, the state or any other agency to pay his fee."  But see People v. Richardson, 603 N.Y.S.2d 700 (1993) ("The inherent power of the court to assign counsel to indigent persons includes the power to assign counsel with or without compensation.")


In deciding whether to appoint counsel as a discretionary matter, courts have looked to whether the indigent "litigant is faced with a 'grievous forfeiture or loss of a fundamental right.'" Wills v. City of Troy, 686 N.Y.S.2d 154, 155 (App. Div. 1999) (quoting Garcia, 561 N.Y.S.2d at 867).


A few cases have involved counsel being appointed under the statute. See, e.g., Cerami v. Cerami, 355 N.Y.S.2d 861 (App. Div. 1974) (in case involving indigent prisoner defendant to divorce, "defendant's circumstances clearly warrant the assignment of counsel by the court"); Brounsky v. Brounsky, 308 N.Y.S.2d 72, 73 (App. Div. 1970) (holding in a divorce case that "inasmuch as defendant is imprisoned without the State, and since his claim of indigency is uncontradicted, the denial of his request for the assignment of counsel was, in our view, an improvident exercise of discretion"); Zeff v. Zeff, 92 N.Y.S.2d 609 (App. Div. 1949) (appointing counsel for allegedly insane wife in divorce proceeding). 


In 2009, the legislature passed N.Y. C.P.L.R. § 3408(b), which states that any foreclosure defendant appearing pro se at the mandatory conference is presumed to have filed a motion for appointment of counsel under section 1101. If the court appoints counsel, it is required to "adjourn the conference to a date certain for appearance of counsel and settlement discussions . . . ."

Appointment of Counsel: discretionary Qualified: no