Right to counsel

A Kentucky statute entitles any indigent person to representation who is “being detained by a law enforcement officer, on suspicion of having committed, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime,” see Ky. Rev. Stat. Ann. § 31.110(1), where the definition of “serious crime” includes “[a]ny legal action which could result in the detainment of a defendant.”  See Ky. Rev. Stat. Ann. § 31.100(8)(c).   In Lewis v. Lewis, the state supreme court interpreted these provisions to mean that “an indigent person who is facing incarceration for any amount of time is entitled to appointed counsel,” including in civil contempt proceedings.  875 S.W.2d 862, 863-64 (Ky. 1993).  The court went on to say:

The trial court must hold a hearing and allow the contemnor to explain through counsel, or pro se, why he or she should not be incarcerated for civil contempt of court. If the contemnor is not represented by counsel at such a hearing, then the trial court should make a specific finding of fact concerning the person’s indigency. If the defendant is found to be indigent, then prior to any incarceration, counsel should be appointed and the defendant should be given an opportunity to show cause why the order of incarceration should not be executed.

Then, in Wright v. Wright, 2025 WL 3247264 (Ky. App. 2025), the Court of Appeals reversed an order of contempt where a trial court defended its denial of appointed counsel on the ground that the defendant did not request it, stating that “Under Lewis, the trial court was required to make a specific finding of fact regarding whether Vernon was indigent and, if so, to appoint counsel to represent him before any order of incarceration could be entered.”

The Lewis case and the relevant statutory provisions indicate that Kentucky’s right-to-counsel analysis is concerned solely with the litigant’s liberty interest, rather than the nominally “civil” or “criminal” nature of the proceedings.  This focus is consistent with the holding in Lassiter v. Department of Social Services, that “[I]t is the defendant’s interest in personal freedom, and not simply the special Sixth and Fourteenth Amendments right to counsel in criminal cases, which triggers the right to appointed counsel ….” 452 U.S. 18, 25 (1981).