Discretionary appointment of counsel

The Washington Supreme Court held at one time that indigent defendants in paternity cases are never entitled to appointed counsel under the federal due process clause. State v. Walker, 553 P.2d 1093, 1095 (Wash. 1976) (finding that risk of incarceration must be immediate in order to require appointment of counsel; possibility of future contempt is not sufficient). However, the Washington Court of Appeals has suggested that Walker is no longer persuasive authority. State v. James, 686 P.2d 1097, 1101 n.4 (Wash. Ct. App. 1984). The James court explained that

First, Walker was decided shortly after Eldridge, and did not analyze the right to counsel issue pursuant to the three Eldridge factors. Obviously, Eldridge is controlling with respect to federal due process requirements. Second, the Walker court assumed that the right to counsel requires that the potential incarceration be the direct result of the paternity proceeding itself. But under the Eldridge/Lassiter approach, the complete absence of a possibility of incarceration merely gives rise to a rebuttable presumption against the right to counsel. Finally, in reaching its decision, the Walker court relied on the Michigan Court of Appeals decision in Artibee v. Cheboygan Cir. Judge, 221 N.W. 2d 225 (1973). However, Artibee was reversed by the Michigan Supreme Court. Artibee v. Cheboygan Cir. Judge, 243 N.W. 2d 248 (1976).

The James court then determined, notwithstanding its statements above, that there is no absolute constitutional right to counsel in all state-initiated paternity proceedings under the federal constitution.  Although the court recognized the importance of an accurate creation of a familial bond and the financial interests at stake, the court found that the risk of error had been reduced by more accurate blood testing. It also noted that the Lassiter presumption weighed against appointment because of the lack of an immediate physical liberty threat in paternity proceedings, although it acknowledged that a paternity determination could serve as the underlying cause for a later contempt for nonsupport. But the court held that trial courts may appoint counsel subject to appellate review.