Thursday, May 19, 2016

Does the Right to Civil Counsel Include Effective Counsel?

The answer is:  not yet.  

SCOTUS is entertaining a cert petition that requests that the court address whether, when civil counsel is appointed, the party is entitled to effective assistance of counsel.   While your first response may be "Of course!" the answer may not be obvious in some jurisdictions, as reported on SCOTUSBlog.  While the Tennessee case in question is specific to termination of parental rights, if the US Supreme Court accepts the case for hearing, the court's decision could have a wide ranging impact on the quality demanded of court appointed lawyers in a range of civil cases.  As noted in yesterday's post, cases that address parental rights are those (at this juncture) that most easily are identified as triggering the right to counsel.  

The case is Vanessa G. v. Tennessee Department of Children's Services.  The statute in question is Tenn. Code Ann. Section 37-1-126(a)(2)(B)(ii)  which states in part "a parent is entitled to representation by legal counsel at all stages of any proceeding under this part in proceedings involving termination of parental rights[.]"  The Tennessee Supreme Court affirmed that parents are entitled to appointment of counsel in termination cases, but noted that nothing in SCOTUS' 1981 Lassister decision mandates that counsel be effective.  In so ruling the court also rejected the notion that the criminal standard of "ineffective assistance of counsel" must or need be imported to civil matters.  

With the concept of a civil right to counsel in matters involving fundamental human rights becoming more recognized, the Vanessa G. case, if accepted, could act as a guide to states as they struggle with redefining which civil cases demand the appointment of counsel and the level of skill litigants may expect when counsel is appointed.  We know what the answer would be in Massachusetts, which has already held that counsel must be competent.  But this may be the time for clarity on the national level.

https://lawprofessors.typepad.com/human_rights/2016/05/but-does-the-right-to-civil-counsel-require-effective-counsel.html

Advocacy, Children, Civil Right to Counsel, Margaret Drew, social justice | Permalink

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