Indiana must continue its long tradition of providing pauper counsel in civil cases — and provide funding for those trained, experienced attorneys. “If we are to keep democracy, there must be a commandment: Thou shalt not ration justice.” Quoting Judge Learned Hand from Unequal Access to Justice: A Comprehensive Study of the Civil Legal Needs of the Poor in Indiana (2008).
From a report of Indiana cases generated at the end of 2013, “[i]n family law cases, 60% of the litigants did not have a lawyer! When people are in court without a lawyer, bad things happen. It places unrepresented litigants under a great disadvantage and is almost always detrimental to their interests; it deprives judges from receiving all the information they need to make just and fair judicial rulings; and it clogs court dockets and delays justice for all court users.” Chief Justice Dickson, 2014: State of the Judiciary (January 15, 2014).
Title 31 of the Indiana Code covers topics related to the family, including divorce, paternity, adoption, CHINS, termination of parental rights, and juvenile delinquency. One of the first statutes in Title 31 states: “It is the policy of this state and the purpose of [the juvenile code] to. . . provide a judicial process that: (A) ensures fair hearings; (B) recognizes the legal rights of children and their parents; and (C) recognizes and enforces the accountability of children and parents…”. I.C. 31-10-2-1(10). To ensure fair hearings, access to pauper counsel is addressed by several statutes:
- A parent is entitled to representation by counsel in proceedings to terminate the parent-child relationship. IC 31-32-2-5 and IC 31-32-4-1(2).
- A child charged with a delinquent act is entitled to be represented by counsel. IC 31-32-4-1(1).
- The court may appoint counsel to represent any parent in any other juvenile law proceeding (such as a CHINS case). IC 31-32-4-3(b).
- More generally, an indigent person in any civil case, not just a family law case, may apply to proceed with the case as an indigent person and the court may, under exceptional circumstances, assign an attorney to defend or prosecute the cause. IC 34-10-1-1 and IC 34-10-1-2(b).
Despite repeated attempts, the right to counsel has not been extended as a generalized Federal right to counsel in all civil cases — sometimes called “Civil Gideon.” But, “[f]rom the date of its admission to the Union down to this day, Indiana has been a leader in providing indigent persons with free access to her courts and in providing them with fair treatment while in court.” Thompson v. Thompson, 286 N.E.2d 657 (1972).
To continue that leadership, with all due respect, the needs of the indigent will not be adequately met by the call of the Chief Justice to increase pro bono hours (volunteer legal service) and report those pro bono hours annually. Certainly, all who were fortunate enough to go to law school and be admitted to practice law owe a debt to use our expertise for those who are less fortunate. It is just not realistic that pro bono hours will cover the vast number of unrepresented cases, especially in the rural counties. Let’s use a rural county in central Indiana as an example. There are no more than forty attorneys in the entire county. Of those, nineteen are judges, magistrates, commissioners, prosecuting attorneys, and full-time public defenders. These nineteen attorneys are either barred from representing clients or already carry huge caseloads representing the indigent. That means the remaining attorneys in the county would have to shoulder the vast majority of the current pro bono representation obligations and the additional unrepresented civil litigants. It is too much.
To show true leadership, the General Assembly and county governments must:
- Amend IC 31-32-4-3(b), such that a parent in a CHINS proceeding is entitled to the representation by counsel.
- Amend IC 31-34-10-1(b)(2), such that any person in a civil case whom the court has determined to be indigent has the right to the representation by counsel.
- Adequately fund indigent legal services provided by legal aid organizations and public defender offices/agencies, while continuing to encourage pro bono representation.
And, of course, EVERY juvenile alleged to be a delinquent should be appointed an attorney BEFORE any appearance in juvenile court.