Discretionary appointment under “exceptional circumstances”

In its recent opinion in Abbott v. State, the Indiana Supreme Court considered the application of Ind. Code § 34-10-1-2(b)(2) in the civil forfeiture context, interpreting the statute using a due process lens. 183 N.E.3d 1074 (Ind. 2022).  The provision cited states that a court may “under exceptional circumstances, assign an attorney to defend or prosecute the cause” of an indigent person. Ind. Code § 34-10-1-2(b)(2) (emphasis added). 

In determining whether to appoint counsel, the court may consider “[t]he likelihood of the applicant prevailing on the merits of the applicant’s claim or defense[ ] [and] [t]he applicant’s ability to investigate and present the applicant’s claims or defense without an attorney, given the type and complexity of the facts and legal issues in the action.” Id. at (c)(1) and (2).  However, [t]he court shall deny an application made . . . if the court finds any of the following: “(1) The applicant failed to make a diligent effort to obtain an attorney before filing the application[,] [or] (2) The applicant is unlikely to prevail on the applicant’s claim or defense.” Id. at (d)(1)–(2).

The Court suggested that “exceptional circumstances” allowing appointment in a civil forfeiture case exist where an individual whose property is subject to the forfeiture is “incarcerated, indigent, and lack[s] the means to hire counsel.”  Id. at 1084.  It reasoned that the forfeiture action was “quasi-criminal” in nature and especially “complex,” such that “the trial court admonished the individual several times for failing to follow proper procedures and advised him to ‘seek the advice of an attorney.'”  Id. at 1084–85. 

Nevertheless, the Court determined that the trial court did not abuse its discretion in denying the incarcerated individual counsel, since the statute “plainly states that the ‘court shall deny’ the request for counsel if it determines the ‘applicant is unlikely to prevail on the applicant’s claim or defense[,]” and the trial court found that the individual had a slim likelihood of prevailing on the merits. Id. at 1085.

However, the decision suggests that in “exceptional circumstances” if an individual demonstrates that (i) they are without sufficient means to hire an attorney, (ii) they mad a diligent effort to obtain an attorney before asking for the appointment, and (iii) that they may prevail, a court may appoint counsel in a civil forfeiture proceeding.