Right to counsel

New Jersey Directives Dir. 15-08 provides an explicit right to appointed counsel prior to being incarcerated, as per the New Jersey Supreme Court’s decision in Pasqua v. Council, 892 A.2d 663 (N.J. 2006).

Note that N.J. R. 5:3-4(a) specifies the court must assign counsel to represent indigents in all family actions where a party is by constitution, state or federal, or by law entitled to counsel, even where there is no publicly-funded source of representation available (in other words, appointed counsel goes unpaid), except in child support enforcement hearings. The “except in child support hearings” was an amendment added in response to Pasqua. In terms of compensation for the newly recognized right, the Pasqua Court stated:

We will not use our authority to impress lawyers into service without promise of payment to remedy the constitutional defect in our system. The benefits and burdens of our constitutional system must be borne by society as a whole. In the past, the Legislature has acted responsibly to provide funding to assure the availability of constitutionally mandated counsel to the poor … We trust that the Legislature will address the current issue as well.

In other words, because the Pasquacourt essentially forbade the use of pro bono attorneys for child support cases, the Legislature amended the statute to exclude child support cases from the types of cases where non-state-funded (i.e., pro bono) counsel is appointed.