Right to counsel

Key_development Question_mark

Legislation, Paternity - Defendant/Respondent

Reference to appointed counsel or appointed GAL for a defendant in a parentage proceeding can be found in both the Criminal Procedure code (Ala. Code § 15-1-1, et seq.) and the Uniform Parentage Act (Ala. Code § 26-17-101, et seq.). The relevant provision of the Criminal Procedure code states:


In all criminal cases, including paternity cases . . . when a defendant is entitled to counsel as provided by law, the trial judge shall before arraignment ascertain from the accused, or otherwise: (1) Whether or not the defendant has arranged to be represented by counsel; (2) Whether or not the defendant desires the assistance of counsel; and (3) Whether or not the defendant is able financially or otherwise to obtain the assistance of counsel in accordance with policies and procedures established by the Office of Indigent Defense Services.


Ala. Code § 15-12-20.  Parentage cases are not typically criminal cases though, so the wording of this statute is somewhat confusing.  Nor is there any caselaw clarifying the matter.  So while the statute appears to confer a right to counsel in parentage cases, its intent may be to only provide such a right when a parentage matter arises in the context of a criminal case.


The Alabama Court of Civil Appeals has discussed the question of whether the courts have an affirmative duty to notify defendants of their right to appointed counsel where the statute does not specify such a duty, such as under § 15-12-20.  In Watts v. Watts, 706 So. 2d 749, 752 (Ala. Civ. App. 1997), despite stating that it would not consider the appellant’s argument (presented for the first time on appeal) that his due process rights were violated based on the trial court’s failure to ascertain that he knew he was entitled to counsel, the court held that his rights were not violated by the omission.  The court reasoned that this particular defendant appeared familiar enough with legal procedure such that his invocation of due process on appeal was an “attempt[] to abuse that process.” Id.  Nevertheless, this case was accompanied by a vigorous dissent.  See id. (Crawley, J., dissenting) (“I think the trial court had an affirmative duty to advise Winford of his right to counsel.  Section 15-12-20 clearly places on the trial court, in the first instance, the responsibility to determine whether counsel should be appointed.”); see also Ex Parte Parcus, 615 So. 2d 78, 82 (Ala. 1993) (Maddox, J., dissenting) (in case involving parent held in criminal contempt for failure to pay support, judge observes that “[t]he right to the assistance of counsel is such a fundamental component of due process that trial courts cannot be allowed to assume that the accused has some vague knowledge of that right and has chosen to waive it.”).


Next, the court must appoint a GAL for an unrepresented minor defendant in a parentage action under the Uniform Parentage Act.  Ala. Code § 26-17-612As is true in other areas of the code though, the Uniform Partage Act does not provide a definition of “guardian ad litem,” so it is not clear whether the GAL must be an attorney.  See Ala. Code § 26-17-102.  But it may be that Rule 17 of the Alabama Rules of Civil Procedure applies in the case of an unrepresented minor defendant, in which case the GAL must be an attorney. See Ala. R. Civ. P. 17(d) (governing how to choose a GAL in situations where the court must appoint one for "a minor defendant" or "for an incompetent person” “not otherwise represented in an action" [pursuant to Ala. R. Civ. P. 17(c)]:  “Whenever a guardian ad litem shall be necessary, the court in which the action is pending shall appoint to serve in that capacity some person who is qualified to represent the minor or incompetent person in the capacity of an attorney or solicitor.”) (emphasis added).



Appointment of Counsel: categorical Qualified: yes