Discretionary appointment of counsel

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Legislation, All Basic Human Needs

Pursuant to statute, a trial court has discretion to appoint counsel for any indigent litigant in civil cases in certain circumstances.  


The statute in its current form

Ind. Code § 34-10-1-2 states:


(a) This section may not be construed to prohibit a court from participating in a pro bono legal services program or other program that provides legal services to litigants: (1) without charge; or (2) at a reduced fee.


(b) If the court is satisfied that a person who makes an application described in section 1 of this chapter does not have sufficient means to prosecute or defend the action, the court: (1) shall admit the applicant to prosecute or defend as an indigent person; and (2) may, under exceptional circumstances, assign an attorney to defend or prosecute the cause.


(c) The factors that a court may consider under subsection (b)(2) include the following: (1) The likelihood of the applicant prevailing on the merits of the applicant's claim or defense. (2) The applicant's ability to investigate and present the applicant's claims or defenses without an attorney, given the type and complexity of the facts and legal issues in the action.


(d) The court shall deny an application made under section 1 of this chapter if the court determines any of the following: (1) The applicant failed to make a diligent effort to obtain an attorney before filing the application. (2) The applicant is unlikely to prevail on the applicant's claim or defense.


(e) All officers required to prosecute or defend the action shall do their duty in the case without taking any fee or reward from the indigent person.


(f) The reasonable attorney's fees and expenses of an attorney appointed to represent an applicant under section 1 of this chapter shall be paid from the money appropriated to the court: (1) appointing the attorney, if the action was not transferred to another county; or (2) from which the action was transferred, if the action was transferred to another county.


(emphases added).  Each of the factors italicized above--sufficient means, likelihood of prevailing, and the diligent efforts requirement--have been interpreted by courts to significant degree.

Sufficient Means

Several cases interpret the term "sufficient means" used in Ind. Code § 3401-01-2(b), holding that apparent indigence does not mean a party lacks "sufficient means," to secure representation.  Rather, a court must examine a petitioner's means alongside the type of action before it.  If the action is often litigated by non-indigent persons without counsel, then even an indigent person has "sufficient means" to proceed without appointed counsel.  Sabo v. Sabo, 812 N.E.2d 238, 242 (Ind. Ct. App. 2004); Caldwell v. Caldwell, No. 02A03–0602–CV–90, 2006 WL 3593435, at *3-4 (Ind. Ct. App. Dec. 12, 2006) (unpublished).  Sabo provided a reiteration of a set of principles regarding “sufficient means” originally articulated in Sholes v. Sholes, 760 N.E.2d 156 (Ind. 2001), a case that interpreted a prior version of the statuteSabo, 812 N.E.2d at 242-44 (discussing Sholes).

Under the Sabo analysis, if a court determines that an action is commonly engaged in without counsel, it need not even approach the additional steps of determining indigence or examining any "extraordinary" factors which might militate in favor of appointment.  The court further explained that there is no "blanket [category] of cases in which counsel should never be appointed. Rather, the [trial] court should look to the particular issues presented in the action. . . ." Id.  The "specific circumstances" in Sabo were that an incarcerated man's wife petitioned for dissolution of marriage, and was granted that dissolution as well as an award of $5,640.95 (the amount husband had appropriated from her trust fund) and legal expenses.  Clearly, dissolution actions, even when they involve an award of damages qualify as "often handled… without the assistance… of counsel." Id. at 240-42.


Then in Maust v. Estate of Bair ex rel. Bair, the court of appeals added that a trial court has no obligation under Ind. Code § 34-10-1-1 or Ind. Code § 34-10-1-2 to hold an indigency hearing. 859 N.E.2d 779 (Ind. Ct. App. 2007).

Likelihood of prevailing


A second set of cases, all ruling on requests by incarcerated persons for civil counsel, confirm that a court does not abuse its discretion in refusing to appoint counsel where the court determines a claim is unlikely to succeed.  Smith v. Indiana Dep't of Correction, 871 N.E.2d 975, 986-87 (Ind. Ct. App. 2007); Ellison v. Graddick, No. 45A03–0601–CV–26, 2006 WL 3823182, at *3-4 (Ind. Ct. App. Dec. 29, 2006) (unpublished); Vebert v. Indiana Parole Bd., No. 32A05–0606–CV–283, 2006 WL 3598201, at *2 (Ind. Ct. App. Dec. 12, 2006) (unpublished);  Parks v. Madison Cty., 783 N.E.2d 711 (Ind. Ct. App. 2002).  Similar reasoning prevents courts from appointing counsel on actions that rehash previously litigated claims.  Parks v. State, 789 N.E.2d 40, 44 (Ind. Ct. App. 2003).


In Smith, the court interpreted the "likely to prevail" language of section 34-10-1-2 in a particularly narrow way.  Smith, a prisoner, appealed a trial court's judgment on the pleadings against his claims for negligence and violation of the cruel and unusual punishment provisions of the Indiana Constitution, claiming that the trial court had erred in declining to appoint him counsel. Smith, 871 N.E.2d at 980-81.  In his complaint, Smith alleged that illegal disciplinary methods were used against him, including mace and painful restraints. Id. at 981.  The Department of Corrections filed a motion for judgment on the pleadings, which the trial court granted. Id.  The Court of Appeals, considering the case on the merits, determined that these disciplinary methods did not rise to the level of "unnecessary rigor," both because the court determined that the level of harm was not particularly severe, and it was inflicted for a valid disciplinary reason. Id. at 984-85.  The Court of Appeals then used its own decision that no violations had occurred to assert that Smith's claim was "unlikely to prevail," and that, therefore, the trial court had not abused its discretion in denying Smith's request for appointment for counsel. Id. at 986-87. 

The ruling in Smith creates a precedent of circular reasoning whereby an appellate court's upholding of trial court's decision in a case where a party was not represented automatically justifies the trial court's decision not to appoint counsel.  The same thing occurred again with the same prisoner in Smith v. Indiana Dep't of Correction, 878 N.E.2d 540 (Ind. Ct. App. 2007) (unpublished), where the court held that because Smith did not prevail on his claims in the trial court, “Smith was unlikely to, and indeed did not, prevail on his claims.  Under these circumstances, the trial court was required to deny Smith's request for appointment of counsel.”


In Verbert, the Court of Appeals examined a trial court decision that had failed to even address a prisoner's request for civil counsel, let alone analyze the prisoner's means or likelihood of success. 2006 WL 3598201, at *2. The Court of Appeals independently decided that Verbert's claim was unlikely to succeed, and so that the trial court need not have considered appointment of counsel.  Id. ("Here, the trial court made no findings regarding Verbert's efforts to obtain an attorney or his likelihood of success on his claim. Even so, the record before us reveals that: (1) he filed his petition on February 17, 2006; (2) on April 3, 2006, he requested that the trial court set a date for his hearing; and (3) after the May 3 hearing was set, he filed a request for an attorney on April 27, 2006-less than one week before the hearing. The evidence further reveals that Verbert was unlikely to prevail on his claim.")  For other cases addressing the “likelihood of success” factor, see In re Paternity of N.B., 907 N.E.2d 625 (Ind. Ct. App. 2009) (unpublished) ("the issues in this case were either not contested by Father or were controlled by statute. This case, then, was not so complex that Father could not present his claims and defenses without an attorney"); Harper v. Harper, 921 N.E.2d 52 (Ind. Ct. App. 2010) (unpublished) ("Given Father's demonstrated pattern of domestic violence, history of violent criminal behavior, drug and alcohol abuse, and the ill-effects on A.A.'s mental health and social well-being, the record supports the trial court's finding that, despite Father's claimed personal reforms, his request for appointed counsel was denied because the trial court determined that it was unlikely that he would prevail on his claim for reinstated parent-child visitation privileges").

Diligent Efforts


A final strain of section 34-10-1-2 cases holds that a court may not appoint counsel to an indigent litigant who has not made "diligent efforts" to retain her own counsel, as per the requirement of 34-10-1-2(d)(1). Smith v. Harris, 861 N.E.2d 384, 386 (Ind. Ct. App. 2007); In re Paternity of N.B., No. 43A03–0810–JV–516, 2009 WL 1393677 at *2-4 (Ind. Ct. App. May 19, 2009) (unpublished); Hines v. Hines, 883 N.E.2d 1213 (Ind. Ct. App. 2008) (unpublished); Beard v. Dominguez, 847 N.E.2d 1054 (Ind. Ct. App. 2006).  In Smith v. Harris, the court denied an application for counsel, in part, for lack of "diligent efforts" to obtain counsel. 861 N.E.2d at 386.  The court made clear that it will not make the applicant's argument on her behalf, and that the affirmative showing of any effort whatsoever is necessary first, before a judge can begin to determine whether that effort is 'diligent' within the wording of the statute. Id.  The applicant in Smith had failed to present any record at all of such efforts, so the Court upheld the trial court's refusal to appoint counsel. Id.  Further complicating matters, the court of review admitted that it viewed the applicant with some measure of prejudice, having "recently been inundated with appeals from [him]…," three of which the court had dismissed upon a determination that they were "frivolous or one[s] upon which relief cannot be granted." Id. at 385.  While the ruling does not explicitly define what may in fact constitute a diligent effort it does reaffirm that the burden of production as to diligence in her effort is on the applicant.                   


In In re Paternity of N.B., it was clear from the record that the applicant, prior to appearance in court, had no idea that the obligation to expend a measure of diligence in seeking counsel was required under section 34-10-1-2.  2009 WL 1393677 at *2-4.  In upholding the trial court's refusal to grant counsel, the Court of Appeals was not at all influenced by the fact that the applicant seemingly was not aware that there ever existed a burden upon him to make such diligent efforts. Id. at *3.  In affirming the determination, the Court noted that when an indigent "applicant fails to make a diligent effort to obtain an attorney before filing the application," the court "shall deny his application" (emphasis added). Id.  While this also does little to better clarify what in fact is a diligent effort, it does better clarify the Court's stance that, where "there is no evidence in the record that [Applicant] made a diligent effort," the determination as to whether counsel should be appointed is beyond the control of the court's and prohibited by the language of 34-10-1-2.  Id.  Notably, in In re Paternity of E.P., 915 N.E.2d 1047 (Ind. Ct. App. 2009) (unpublished), the court commented that the diligence requirement “does not contain an exception for applicants who are incarcerated”.  The E.P. court also rejected the argument of the litigant that it was unfair for the court to put the burden of knowing this diligence requirement on unrepresented litigants, since it was the statute itself that put the burden on the litigant.

Legislative history

Until 2002, this statute actually guaranteed counsel to all indigent litigants in all civil cases.  Prior to 2002, Ind. Code § 34-10-1-2 read as follows:

If the court is satisfied that a person who makes an application described in section 1 of this chapter does not have sufficient means to prosecute or defend the action, the court shall:  (1) admit the applicant to prosecute or defend as an indigent person; and (2) assign an attorney to defend or prosecute the cause.  All officers required to prosecute or defend the action shall do their duty in the case without taking any fee or reward from the indigent person. 


As one court put it, “This statute mandates that courts appoint counsel for indigent civil litigants in all situations … The threshold determination of indigency is a matter within the sound discretion of the trial court … Once indigency is established, a trial court has no discretion under the statute to determine whether to grant a request for appointed counsel.”  Dickson v. D'Angelo, 749 N.E.2d 96, 99 (Ind. Ct. App. 2001).  While the predecessor statute to Ind. Code § 34-10-1-2 (Ind. Code § 34-1-1-3) was very old, the statute was recodified by the legislature into § 34-10-1-2 as recently as 1998 with exactly the same provisions as before.  Of note, neither the original nor recodified statute provided a mechanism for the appointed attorneys to be paid; in fact, they prohibited the attorney from seeking payment from the indigent litigant.  But the statute did not prohibit the court from ordering a government entity to pay for the appointed attorney.


To learn more about the legislative history of the change, check out the following resources:


  • Legislative Services Agency Office of Fiscal and Management Analysis, Fiscal Impact Statement for House Bill 1027 (Pauper Counsel in Civil Actions) (Feb. 22, 2002);


  • Legislative Services Agency Office of Fiscal and Management Analysis, Fiscal Impact Statement for Senate Bill 104 (Right to Pauper Counsel in Civil Actions) (Feb. 26, 2001).

Appointment of Counsel: discretionary Qualified: no