Right to counsel

In State ex rel. Hawks v. Lazaro, 202 S.E.2d 109 (W. Va. 1974), the court considered whether those subject to involuntary mental health confinement have a right to counsel. At the time, the law in West Virginia provided for the appointment of a guardian ad litem “who shall be a competent attorney”. The court held that “In order for the procedural requirements of notice and confrontation of witnesses to be meaningful, the individual must be represented by counsel.”  However, the court seemed to accept appointment of the guardian as satisfying this requirement, even though guardian ad litems typically argue for the best interest of the individual, as the court held that the statute

is not unconstitutional in this regard because it provides for a guardian Ad litem; however, the appointed guardian must serve the function of an adversary, and to the extent both authorized and mandated by Canons 5 and 7 of the Code of Professional Responsibility, the guardian has a duty to the individual and the legal system to represent his client as zealously as the bounds of ethics permit.

At no time did the court specify whether its ruling was under the state or federal constitution, or both, although it stated earlier in the opinion that “Article 3, Section 10 of the West Virginia Constitution and the Fifth Amendment to the United States Constitution provide that no person shall be deprived of life, liberty or property without due process of law.”‘

While the court has not revisited the issue of right to counsel in civil commitment since Lassiter v. Dep’t of Social Services, 101 S.Ct. 2153 (1981), it has cited approvingly to Lazaro since Lassiter. State ex rel. White v. Todt, 475 S.E.2d 426, 432 n.6 (W.Va. 1996).