Right to counsel

Litigation, Civil Contempt in Family Court

Various cases have dealt with the right to counsel in civil contempt proceedings. Dep't of Hous. Preservation & Dev. v. Lamison, 462 N.Y.S.2d 109, 111 (Civ. Ct. 1983) (holding, based on Sixth Amendment and its state constitutional equivalent, that "it is undoubtedly and reasonably clear in the judgment of this court that an indigent respondent who faces the prospect of imprisonment in a civil contempt proceeding is entitled to the assistance of counsel and this court holds that under such circumstances, it is required and mandated, as a matter of law, to assign counsel to assist, advise and participate in these proceedings in behalf of the respondent"); People ex rel. Lobenthal v. Koehler, 516 N.Y.S.2d 928 (App. Div. 1987) ("With the exception of a narrowly limited category of contempts, where the contemptuous conduct is committed in open court, in the presence of the Judge, and immediate punishment is necessary to uphold the court's authority, due process pursuant to the Fifth and Fourteenth Amendments demands that a person charged with contempt . . . have the right to be represented by counsel." (citation omitted)) Ullah v. Entezari-Ullah, 836 N.Y.S.2d 18, 22 (N.Y. App. Div. 2007) (holding in case involving failure to pay mortgage and child's tuition that "A respondent in a civil contempt proceeding facing the possibility of the imposition of a term of incarceration, however short, is entitled to the assignment of counsel upon a finding of indigence", and citing in part to Argersinger v. Hamlin, 407 U.S. 25 (2006)); Jennings v. Jennings, 344 N.Y.S.2d 93 (App. Div. 1973) (finding right to counsel in child support contempt cases, and relying on In re Ella B., 30 N.Y. 2d 352, 356-67 (1972), which had recognized right to counsel in parental termination cases).


These cases are all questionable after the U.S. Supreme Court's ruling in Turner v. Rogers, given that they are Fourteenth Amendment cases. But Lamison might still be intact if the New York State Constitution's Sixth Amendment equivalent is broader and Lamison is adjudged to have made an independent state constitutional decision.

Appointment of Counsel: categorical Qualified: yes