Discretionary appointment of counsel

Key_development Question_mark

Legislation, All Basic Human Needs

In determining the scope of a court's inherent power to appoint counsel for a civil litigant, the Utah Supreme Court in Burke v. Lewis, 2005 UT 44, ¶ 24, 122 P.3d 533, 538-39 (Utah 2005), referred to Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221 (D. Neb. 1995) to provide a thorough analysis of the "inherent authority possessed by courts to appoint counsel and the manner in which that general authority relates specifically to the appointment power."  

Burke observed that "The Bothwell court commenced its analysis by outlining three separate categories of inherent judicial authority:  (1) powers necessary to maintain independence from other branches of government, (2) powers necessary to exercise all other vested powers, and (3) powers to ensure "'the pursuit of a just result.'"  Subsequently, "the Bothwell court concluded that, although the power to appoint counsel falls most readily into the third category, the appointment power actually furthers all of the functions covered by the three identified categories."  Burke then observed that the Bothwell court, in making such a conclusion, made the broad pronouncement that, while there may not be a constitutional right to counsel in the context of a civil dispute, 'counsel nevertheless may be necessary in a particular civil proceeding to ensure fairness and justice in the proceeding and to bring about a fair and just outcome.'"


The court in Burke cited the above reasoning outlined in Bothwell with approval, and went on to hold that a court may appropriately appoint counsel to represent even an absent non?indigent civil defendant (emphasis added). The court in Burke noted it was correctly pointed out


that the majority of decisions discussing the propriety of appointment of counsel in the civil context expressly mention indigency as a primary factor justifying such an appointment. In fact, even those cases that do not expressly mention indigency when commenting on the scope of the appointment power implicitly rely on indigency as a key factor justifying the appointment of counsel.


However, there does not appear to be "any authority that circumscribes the appointment power such that it can only operate when an indigent civil litigant seeks access to the courts."  Moreover, "significantly the language courts use when discussing the inherent appointment authority is broadly cast and typically unadorned with equivocations or limitations, perhaps recognizing that the existence of a broad, necessarily amorphous power is essential to the effective pursuit of the judicial obligation to provide justice."   Upon review, there do not seem to be any cases standing for the principle "that courts lack appointment power until the possibility of indigency is raised."  In fact, as noted above, in Burke v. Lewis, the court concluded, "appointment of counsel for a non?indigent civil litigant is not excluded per se from the sphere of a district court's authority."

Appointment of Counsel: discretionary Qualified: no