AK high court extends due process right to counsel for parents in custody cases

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08/12/2022, Litigation, Custody Disputes - Parents

In  Matter of Office of Public Advocacy, the Supreme Court of Alaska answered a question on the reach of its prior decision, Flores v. Flores, 598 P.2d 893, 895-96 (Alaska 1979), which had held that parents in private custody cases have a right to counsel if the opposing party's attorney is provided by a pubilc agency and that Alaska Legal Services Corporation (ALSC) is a public agency.  In the instant case, the opposing party's attorney was a private lawyer volunteer provided through ALSC's pro bono program.  The Office of Public Advocacy argued that because the opposing attorney was not an employee of ALSC, the attorney was not part of a "public agency" and therefore the parent was not entitled to counsel. 

 

The Supreme Court of Alaska first refused to narrow the scope of Flores to private custody cases involving a "de facto termination", stating that it has previously said it applies to all child custody disputes.  The Court then reminded that "[T]he term ‘public agency’ . . . must be understood as referring primarily to the nature of an organization’s funding sources, and not to an organization’s status as a government agency.”

 

In weighing whether public funding was involved with the pro bono program, the Court  pointed to the fact that ALSC screens the cases and accepts the client as an ALSC client before the attorney becomes involved, provides malpractice insurance coverage and reimbursement of litigation expenses to attorney volunteers, and assumes the representation if the volunteer withdraws for any reason.  The Court also observed:

 

ALSC also gives its pro bono attorneys office space, access to its law library and training, and mentorship by staff attorneys. In 2015 ALSC formalized its training program with a Pro Bono Training Academy 'to assist pro bono volunteers in areas of law that may be unfamiliar to them.'  ALSC also employs 'multiple staff . . . to work [exclusively] on pro bono-related projects ... Public funds also support ALSC’s pro bono program: LSC, which provides ALSC’s largest source of funding, requires that 12.5% of its grant be used for the pro bono program.

 

The Court concluded, "Although Berezkin’s attorney was a private attorney who volunteered to take a case assignment from ALSC, he was 'provided' to her by ALSC and afforded her the same advantage as an ALSC staff attorney."

Appointment of Counsel: categorical Qualified: yes

 

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The NCCRC provided briefing and oral argument support to Alaska Legal Services in their amicus work on the case.