Right to counsel

Wisconsin provides the right to counsel for individuals subject to emergency detention or involuntary commitment proceedings under the “State Alcohol, Drug Abuse, Developmental Disabilities and Mental Health Act” (also known as “Chapter 51 proceedings”).  See Wis. Stat. Ann. §§ 51.15(9) (Emergency detention; at time of detention, individual must be notified, “both orally and in writing, of his or her right to contact an attorney and a member of his or her immediate family, [and] the right to have an attorney provided at public expense”); 51.20(3) (Involuntary commitment for treatment; “At the time of the filing of the petition [for examination] the court shall assure that the subject individual is represented by adversary counsel by referring the individual to the state public defender, who shall appoint counsel for the individual without a determination of indigency, as provided in s. 51.60”); 51.45(13)(b)(2) (Involuntary commitment; upon receipt of petition for commitment, the court must “[a]ssure that the person is represented by counsel by referring the person to the state public defender, who shall appoint counsel for the person without a determination of indigency, as provided in s. 51.60. The person shall be represented by counsel at the preliminary hearing under par. (d). The person may, with the approval of the court, waive his or her right to representation by counsel at the full hearing under par. (f).”); Wis. Stat. § 967.06 (“(1) As soon as practicable after a person has been detained … in connection with any civil commitment proceeding … the person shall be informed of his or her right to counsel.  (2)(a) Except as provided in par. (b), a person entitled to counsel under sub. (1) who indicates at any time that he or she wants to be represented by a lawyer, and who claims that he or she is not able to pay in full for a lawyer's services, shall immediately be permitted to contact the authority for indigency determinations specified under s. 977.07(1).”)

Wis. Stat. Ann. § 51.35(1)(e) provides a right to counsel whenever:  (1) any transfer of committed individuals between facilities results in a greater restriction of personal freedom for the patient; or (2) the patient is transferred from outpatient to inpatient status.  In such circumstances, the patient must be informed, both orally and in writing, of “his or her right to contact an attorney and a member of his or her immediate family, the right to have counsel provided at public expense, as provided under s. 51.60.”  Wis. Stat. Ann. § 51.35(1)(e).  Also, within 24 hours after:  (1) any transfer resulting in a greater restriction of personal freedom for the patient for a period of more than 5 days; or (2) any transfer from outpatient to inpatient status for a period of more than 5 days where the transfer is due to an alleged violation of a condition of a transfer to less restrictive treatment, the county department must provide written and oral notice of the patient’s right to counsel.  Wis. Stat. Ann. § 51.35(1)(e)(2).

For all of the above types of Chapter 51 proceedings, whenever an adult individual has the right to counsel, the court must refer the individual “as soon as practicable” to the state public defender, who must appoint counsel for the individual without a determination of indigency.  Wis. Stat. Ann. § 51.60(1)(a).  An adult individual may “knowingly and voluntarily” waive his or her right to counsel, except in the context of preliminary hearings for involuntary commitment, as provided in § 51.45(13)(b)(2).  Wis. Stat. Ann. § 51.60(1)(b). 

Any child that is subject to a Chapter 51 proceeding must be represented by counsel, and the court may not grant a waiver of counsel for such proceedings.  Wis. Stat. Ann. § 48.23(1m)(c).

At or after the conclusion of a Chapter 51 proceeding for an adult individual, “the court may inquire as to the individual's ability to reimburse the state for the costs of representation” by the state public defender and may order the individual to reimburse the state “if the court determines that the individual is able to make reimbursement for all or part of the costs of representation.”  Wis. Stat. Ann. § 51.605(1).  The court may also request the state public defender to conduct a determination of indigency under § 977.07, the results of which the state public defender must report to the court.  Wis. Stat. Ann. § 51.605(1).