Archive for the ‘Free Custody Lawyers to be Legally Mandated Soon? Time Will Tell’ Category

Free Custody Lawyers to be Legally Mandated Soon? Time Will Tell

Thursday, October 11th, 2018

Interestingly, government has been increasingly involved in not only health care, but in matters normally centered in private markets such as law and legal rights. After the nationalization of healthcare, is it possible that the federal government will step into the legal realm and pay for an attorney when fundamental rights (like the right to be a parent) are involved? What evidence is there that we are heading in that direction? I would suggest that we are already taking baby steps toward a higher level of government fiscal involvement in domestic law. Here is a synopsis of my thoughts on point.

Law 101 makes clear that indigent criminal defendants have the right to free counsel if they are faced with penalty of a minimum of one year of incarceration. Indigency is defined by local rules but is largely derived from the precept of ability to pay an attorney, even if income is substantial. In what I would call a “quasi-criminal” area or domestic law, the government of the State of Mississippi provides a no-cost lawyer for those charged with abuse and/or neglect of a minor in their care during youth court proceedings. Interestingly, this dynamic is not entirely askew from a criminal scenario wherein the government both prosecutes and defends an indigent criminal defendant.

This recent development of providing a parent advocate to an indigent charged with abuse/neglect in youth court seems to signify a shift toward government-provided representation in matters that involve what would be deemed fundamental rights, such as the right to be a parent. Other fundamental rights would include those contained in the first 10 amendments to the U.S. Constitution (also known as the bill of rights), as well as rights which flow from the due process provisions included in the 14th Amendment to the U.S. Constitution.

The youth court parent advocacy program and the provision for free representation in these matters begs another question altogether; why do we not provide a free attorney for a person who is alleged to have abused/neglected in a chancery court proceeding? Why the distinction just because of the forum? I must admit, there is no logical answer that I can fathom.

Shifting gears somewhat, I have also asked myself and my colleagues why we do not provide an indigent contempt defendant (usually someone far behind on support or alimony, or both) with free counsel. These defendants are nearly always thrown into jail until the entire delinquency is erased. Is this scenario not tantamount to the provisions in the criminal context allowing for the appointment of a no-cost public defender? It seems to me that this presents a distinction without any real difference. The lines are certainly blurry at best.

Without being too lucid about my underlying thoughts, it is very clear that we have set up some arbitrary, even capricious standards as to who gets a free attorney when, why, and how. We have taken some steps away from requiring litigants to follow the “American Rule” (yes it really is called that) wherein people must pay for their own attorneys, as opposed to the “English Rule” wherein the loser pays all legal costs. It may not happen during my career, but I expect that in the near future, the government will provide no-cost lawyers in matters that involve fundamental rights and even those such as contempt where incarceration is a real possibility.

Matthew Poole is a Jackson, Mississippi family lawyer with 15 years of litigation experience. He has managed over 1,200 domestic matters since 2004.