Right to counsel
Litigation, Civil Contempt in Family Court
Various cases have found a right to counsel for indigents in civil contempt proceedings under the federal constitution. Dep’t of Hous. Preservation & Dev. v. Lamison, 462 N.Y.S.2d 109, 111 (Civ. Ct. 1983) (case involved landlord failing to comply with court order ask to making repairs; court held, based on Sixth Amendment and its state constitutional equivalent, that “it is undoubtedly and reasonably clear in the judgment of this court that an indigent respondent who faces the prospect of imprisonment in a civil contempt proceeding is entitled to the assistance of counsel and this court holds that under such circumstances, it is required and mandated, as a matter of law, to assign counsel to assist, advise and participate in these proceedings in behalf of the respondent”); People ex rel. Lobenthal v. Koehler, 516 N.Y.S.2d 928, 930 (App. Div. 1987) (holding in child support case that “With the exception of a narrowly limited category of contempts, where the contemptuous conduct is committed in open court, in the presence of the Judge, and immediate punishment is necessary to uphold the court's authority, due process pursuant to the Fifth and Fourteenth Amendments demands that a person charged with contempt . . . have the right to be represented by counsel[.]” (citation omitted; emphasis in original)); Ullah v. Entezari-Ullah, 836 N.Y.S.2d 18, 22 (N.Y. App. Div. 2007) (holding in case involving contempt for failing to pay mortgage that “[a] respondent in a civil contempt proceeding facing the possibility of the imposition of a term of incarceration, however short, is entitled to the assignment of counsel upon a finding of indigence,” and citing in part to Argersinger v. Hamlin, 407 U.S. 25 (1972)); Jennings v. Jennings, 344 N.Y.S.2d 93, 94 (App. Div. 1973) (relying on In re Ella B., 285 N.E.2d 288, 290 (N.Y. 1972) (discussed supra Part 4.A), in finding a right to counsel in a proceeding to enforce child support where incarceration is an issue); Rudd v. Rudd, 356 N.Y.S.2d 136, 138 (App. Div. 1974) (relying on Ella B. and federal cases for proposition in child support contempt case that “The manner in which these proceedings were conducted contravened appellants’ constitutional rights under both the New York State and Federal Constitutions. At the new hearings which we are directing, each appellant should be advised that if he is indigent he has the right to the assistance of assigned counsel[.]”); Hickland v. Hickland, 393 N.Y.S.2d 192, 195 (App. Div. 1977) (stating in case involving contempt for failure to pay alimony that “one subject to possible contempt and imprisonment has an absolute right to counsel . . . and if one appears Pro se, as here, he is entitled to be advised that he has the right to counsel, and, if indigent, to assigned counsel,” and citing to Rudd (citations omitted)).
These cases are all questionable after the U.S. Supreme Court's ruling in Turner v. Rogers, given that they are Fourteenth Amendment cases. But Lamison might still be intact if the New York State Constitution's Sixth Amendment equivalent is broader and Lamison is adjudged to have made an independent state constitutional decision.
If "yes", the established right to counsel or discretionary appointment of counsel is limited in some way, including any of: the only authority is a lower/intermediate court decision or a city council, not a high court or state legislature; there has been a subsequent case that has cast doubt; a statute is ambiguous; or the right or discretionary appointment is not for all types of individuals or proceedings within that category.
Appointment of Counsel: categorical Qualified: yes