Almost Pro-Bono: Judicial Appointments of Attorneys in Juvenile and Child Dependency Actions

Abstract:     
The attorney's obligation to provide pro bono service is part of the regulatory language of every state's professional regulation. Most states have adopted some version of the American Bar Association's Model Rule of Professional Conduct 6.1. The language is hortatory, directing but not mandating that attorneys provide free or reduced-cost service to persons of limited means. The title emphasizes that pro bono services are voluntary, and the operative word throughout is should, not shall. The use of this language nd the notes accompanying the rule confirm that the rule is not meant to be a basis for discipline. Likewise the oath taken by attorneys in many states includes the affirmation to never reject, from any consideration personal to myself, the cause of the defenseless or oppressed.

If a court appoints an attorney to provide this representation, aspirational goal becomes enforceable obligation. Thus, Model Rule 6.2 on appointed representation is written in mandatory terms and provides that attorneys shall not seek to avoid appointment unless good cause exists for excuse. Indeed, the rule's language (seek to avoid) suggests that even maneuvers short of outright refusal - such as artificial conflicts of interest or efforts to remove one's name from appointments lists - could violate the rule as well. Technically the state disciplinary authority could sanction attorneys for violating this rule. As a practical matter, however, trial courts enforce the duty to accept an appointments through contempt actions rather than referral for discipline.

This article will explore how one legal community has implemented this mandatory obligation to accept appointed representation. Many fine articles have explored the history of the obligation to provide appointed representation or the constitutional limits of that obligation. I will do no more than cite to the former and state the conclusions of the latter. Likewise, this article will not address the representation of indigent criminal defendants and the myriad issues peculiar to that field. Rather, the focus of this article is on the practice of appointing private attorneys to represent indigent clients in civil cases, particularly family court cases. The article first will review the range of cases in which the right to an attorney exists. It will then describe the models for providing these attorneys. Finally, the article will evaluate the constitutional, practical and political implications of an inclusive appointment and buy-out system.

Keywords: pro-bono service, Model Rule of Professional Conduct, juvenile, child, minor, dependency action, appointed representation, family court, right to counsel, 6th amendment, sixth amendment, civil action, parens patriae, Guardian Ad Litem, buy out system

JEL Classifications: J12, J13, K10, K41, L84

Accepted Paper Series