Right to counsel

Key_development Question_mark

01/09/2017, Litigation, Custody Disputes - Parents

In Alaska, indigent parents have the right to counsel in custody proceedings under the due process clause of the Alaska Constitution where their opponent is represented by state-funded counsel.  This right was first established by the Alaska Supreme Court in Flores v. Flores, a case in which an indigent wife was unrepresented against her husband who had obtained representation from the Alaska Legal Services Corporation (ALSC), a nonprofit entity that received government funding. 598 P.2d 893, 895 (Alaska 1979).  


In reaching this holding, the Flores Court reasoned that the due process clause of the Alaska Constitution is flexible and the “concept should be applied in a manner which is appropriate in the terms of the nature of the proceeding.” Flores, 598 P.2d at 895.  It noted that the right to direct the upbringing of a child is a basic civil liberty that is protected by the due process clause of the Federal Constitution and reasoned that the Alaska Legal Services Corporation is a “public agency.”[1] Id. (“Although a private individual initiated the proceeding below, [husband] was represented by counsel provided by a public agency.  Fairness alone dictates that the petitioner should be entitled to a similar advantage.”). 


In at least three subsequent cases, the Court has considered the scope of the meaning of "public agency."  First, In re Alaska Network on Domestic Violence & Sexual Assault, the Court considered whether a different kind of nonprofit organization counts as a "public agency" under Flores.  In holding that the Alaska Network on Domestic Violence and Sexual Assault (ANDVSA) is as a “public agency” for purposes of appointment of counsel, 264 P.3d 835, 841 (Alaska 2011), the Court reasoned that “the term ‘public agency’ in Flores 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.” ANDVSA, 264 P.3d at 839.


Next, the Court has held that the right to appointed counsel does not extend to situations where the opposing party is represented by private counsel. Dennis O. v. Stephanie O.393 P.3d 401 (Alaska 2017); see also Dara v. Gish, 404 P.3d 154, 160 (Alaska 2017) (mother was not entitled to appointed counsel in child custody dispute where third parties [maternal grandmother and step-grandfather] were represented by private counsel).  In Dennis O., the Court declined to extend Flores to a situation where the opposing side is represented by privately retained counsel, applying the Mathews v. Eldridge balancing test factors to conclude that such a situation does not raise the “unfairness” concern present in Flores, in which the state provided assistance to one side only. 393 P.3d 401 (Alaska 2017).[2]  The Court found significant the fact that other procedural safeguards are in place: 


Procedural safeguards, including the Family Law Self-Help Center and informal resolution programs, also reduce the risk of erroneous deprivation for these parents.  The court may appoint a custody investigator, a guardian ad litem, or an attorney for a child.  And judges have experience providing procedural assistance to self-represented parties.  Because these cases do not involve the inherent unfairness of a state agency representing one parent, and because of the ways that the judicial system assists self-represented parents in custody cases, the probable value of court-appointed counsel here is lower than in cases where we have mandated court-appointed counsel. 


Dennis O., 393 P.3d at 408.  Thus, the Dennis O. Court applied the familiar case-by-case determination where the other side is represented by private counsel:  "If the particular facts of a case demonstrate that the parent would otherwise be deprived of a meaningful opportunity to be heard, procedural due process may require court appointment of counsel to a parent in a custody proceeding.” Dennis O., 393 P.3d at 411.


Finally, iMatter of Office of Public Advocacy, the Court held that a parent's right to appointed counsel is also triggered where the opposing party is represented by a private attorney volunteer provided through the pro bono program of the ALSC. 514 P.3d 1281, 1287-88 (Alaska 2022).  The Office of Public Advocacy argued that because the opposing attorney was not an employee of the ALSC, the attorney was not part of a "public agency" and therefore the parent was not entitled to counsel. Id. at 1284.  As a preliminary matter, the Court refused to narrow the scope of Flores to private custody cases involving a "de facto termination," since it previously held that Flores applies to all child custody disputes. Id. at 1286.  The Court then reiterated the significance of "the nature of an organization’s funding sources, and not to an organization’s status as a government agency.” Id. at 1288.


In weighing whether public funding was involved with the pro bono program, the Court pointed to the fact that the 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. Id. at 1287-88.  The Court also observed:


[The] ALSC also gives its pro bono attorneys office space, access to its law library and training, and mentorship by staff attorneys. In 2015 [the] 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.'  [The] ALSC also employs 'multiple staff . . . to work [exclusively] on pro bono-related projects ... Public funds also support [the] ALSC’s pro bono program: LSC, which provides [the] ALSC’s largest source of funding, requires that 12.5% of its grant be used for the pro bono program.


Id. at 1287.  The Court concluded, "Although Berezkin’s attorney was a private attorney who volunteered to take a case assignment from [the] ALSC, he was 'provided' to her by [the] ALSC and afforded her the same advantage as an ALSC staff attorney." Id.


It is also worth noting that a constitutionally guaranteed right to counsel also requires the effective assistance of counsel. V.F. v. State, 666 P.2d 42, 45 (Alaska 1983) (citing e.g., McMann v. Richardson, 90 S.Ct. 1441, 1449 [1970]).  But "[t]he right to the effective assistance of counsel does not extend … to the right to reject appointed counsel and have new counsel appointed in the absence of any showing of cause for such change." P.M. v. State, 42 P.3d 1127, 1133 (Alaska 2002).


Appointment of Counsel: categorical Qualified: yes



The NCCRC assisted with the amicus briefs in the Dennis O. case and provided briefing and oral argument support to the ALSC in its amicus work on the Matter of Public Advocacy case.