Discretionary appointment of counsel

Legislation, All Basic Human Needs

Section 3538 of the Code of Virginia (1904), a remnant of British common law (currently codified as Va. Code Ann. § 17.1-606), provides that "a poor person may be allowed by a court to sue or defend a suit therein, without paying fees or costs, whereupon he shall have, from any counsel whom the court may assign him, and from all officers, all needful services and process, without any fees to them therefore, except what may be included in the costs recovered from the opposite party."  The state supreme court has held that this provision, while allowing appointment of counsel, does not in all cases specifically require the appointment of such counsel. Darnell v. Peyton, 208 Va. 675, 678 (1968) (noting, however, that it is "'better practice'" to appoint counsel in civil habeas matters where "a petition 'presents a triable issue of fact the clear presentation of which requires an ability to organize factual data or to call witnesses and elicit testimony in a logical fashion'" (citations omitted)). The question is whether a litigant would be "unconstitutionally be denied either access to the Court system or a significant civil right" if they did not have counsel. Com. ex rel. McDonnell v. Financing Alternatives, Inc., 79 Va. Cir. 14 (2009).

Appointment of Counsel: discretionary Qualified: no