Discretionary appointment of counsel

Should a court deem a person indigent in a civil action, the court “in its discretion, may appoint counsel,” and that counsel must “perform his or her duties without fees, charges, or reward.” 735 Ill. Comp. Stat. 5/5-105(g).

In proceedings involving violations of civil rights, the court has discretion to appoint counsel for persons who are “financially unable to bear the costs of such action”, plus the attorney can petition for an award of attorneys fees, and the court in its discretion can award attorneys fees to the prevailing party. 775 Ill. Comp. Stat. 5/10-102(B).

There has not been much caselaw on these statutes.  However, in one case, a litigant appealed a trial court’s refusal to appoint counsel to an indigent prisoner on the grounds that it had no authority to do so, citing to 5/5-105(g) as the court’s source of authority. Cebertowicz v. Love, 2013 IL App (5th) 120273-U (Ill. App. Ct. Sept. 24, 2013) (unpublished).  The court of appeals held that “In general, the circuit court errs when it refuses to exercise its discretion in the erroneous belief that it does not have discretion as to the question presented … Like most errors, though, this type of error may be harmless.” Id. at ¶ 79.  It then stated:

The proceedings were at a very early stage, the pleading stage. At that stage, no evidence needed to be presented, and no witnesses needed to be located or interviewed, let alone examined or cross-examined. The record does not give any indication that Cebertowicz was harmed by the lack of an attorney at the pleading stage or in this appeal.

Cebertowicz, 2013 IL App (5th) 120273-U at ¶ 79. 

Note: Pursuant to Ill. Sup. Ct. Rule 23, Cebertowicz may not be cited as precedent.  It is included merely for illustrative purposes.