The right to be heard by counsel in a civil proceeding is a fundamental right encompassed by the phrase “due process of law,” to which all citizens are entitled.49 However, this does not entitle a civil litigant to counsel at public expense.49.1 In very rare circumstances a Delaware court may exercise its inherent authority appoint a lawyer to represent an indigent civil litigant, but the inherent power to do so was not established.50
In the past, when faced with motions for appointment of counsel by indigent parties in civil cases, Delaware courts analyzed the issue by using a due process analysis, considering three elements. The first was the private interest at stake. This was analyzed in terms of the movant’s access to the courts, such as access to law libraries or legal assistance in the preparation of court documents. The second element is the government’s interest. In the case of civil suits by prisoners, the government is deemed to have a strong countervailing interest in maintaining order and discipline in its penal institutions. The last elements is the risk that the procedure without counsel would lead to erroneous results.50.1 However, the risk of a diminished chance of success absent appointment of counsel will not overcome the government interest.50.2
One exception derived from statute and rule of court permits any public officer or employee who becomes a party to any civil litigation in state or federal court arising from his or her government employment to petition the court to appoint counsel to represent such officer of employee at public expense. If the court determines that the petition has merit, the court must appoint counsel, who must represent the officer or employee through all phases of the litigation, unless the lawyer is released at some point by the court. The court may appoint an attorney from the Department of Justice. If, due to a conflict of interest or some other reason, the court determines that the Department of Justice is unable to represent the person, private counsel may, be appointed.51
Another exception is that an indigent obligor facing incarceration as a sanction in a State-initiated civil contempt proceeding for failure to pay court-ordered child support has a due process right to appointed counsel at state expense.51.1
In 1996, the Delaware Supreme Court adopted Administrative Directive No. 107 (Del. Apr. 4, 1996)51.2, which, in combination with Administrative Office of the Court Court Interpreter Program Policy Directive 1 (2102) and Delaware Judiciary Language Access Plan, Appendix F at 7 (2014)51.3 has been interpreted as “adopt[ing] a policy of providing interpreters in civil actions [involving pro se parties] whenever reasonably possible,” including an instruction to judges to “err on the side of caution” in determining when when to provide interpreter services , in order to protect the legal rights of litigants, with the interpreter paid by the Interpreter Program. 51.4.
49. Powell v. Alabama, 287 U.S. 45 (1932); Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1117-18 (5th Cir. 1980). See also In re Asbestos Litigation, 492 A.2d 256, 258 (Del. Super. 1985).
49.1. Wood v. Collison, C.A. No. N14C-04-264 ALR, slip op. at 2, Rocanelli, J. (Del. Super. Sept. 18, 2014) (“Self-represented litigants in civil proceedings have no legal or equitable right to appointed counsel”).
50. See State v. Rainier, C.A. No. N10C-03-296 JRS, slip op. at 1-2, Slights, J. (Del. Super. June 22, 2010); Miller v. Taylor, C.A. No. 08C-12-263 JRS, slop op. at 2 (Del. Super. Apr. 29, 2010); Deputy v. Conlon, C.A. No. 07C-01-202 MMJ, Johnston, J. (Del. Super. Feb. 13, 2008); Vick v. Dept. of Correction, CA. No. 85C-JL-142, O’Hara, J. (Del. Super. Apr. 14, 1986) (noting absence of explicit authority to appoint counsel in civil cases, but recognizing that, due to the Superior Court’s supervisory power over prisons and prisoners’ right of access to the courts, the court could appoint counsel to represent a prisoner in a civil rights action if the prisoner had been denied “meaningful access” to the courts). See also Maxon v. Sea Insurance Co., Ltd., No. 206, 1994, slip op. at 2, Holland, J. (Del. July 6, 1994) (ORDER), disposition reported at 648 A.2d 425 (Del. 1994) (TABLE) (no constitutional right to counsel in civil appeal).
50.1. State v. Rainier, C.A. No. N10C-03-296 JRS, slip op. at 2-3, Slights, J. (Del. Super. June 22, 2010); Miller v. Taylor, C.A. No. 08C-12-263 JRS, slip op. at 2-4, Slights, J. (Apr. 28, 2010); Jenkins v. Dover Police Comm’r, C.A. No. 01C-05-015, slip op. at 5-6, Witham, J. (Del. Super. Apr. 5, 2002).
50.2. State of Delaware Ins. Cov. Office v. Rainier, C.A. No. N10C-03-296 JRS, slip op. at 5, Slights, J. (June 22, 2010).
51. 10 Del. C. § 3925; Supr. Ct. R. 68; Super. Ct. Civ. R. 89; Fam. Ct. Civ. R. 89; J.P. Ct. Civ. R., Misc. R. 2.
51.1. Wilson v. Division of Family Services, 988 A.2d 435, 444 n.31 (Del. 2010); Black v. Div. of Child Support Enforcement, 686 A.2d 164 (Del. 1996).
51.2 http://courts.delaware.gov/supreme/admdir/ad107.pdf. This directive was superseded by Administrative Directive 187′ http://courts.delaware.gov/supreme/admdir/ad187.pdf.
51.4 In re Applied Cleantech, Inc. C.A. No. 12719-VCL (Del. Ch. Jan. 5, 2017).
© 2017 David L. Finger