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access to the courts, state’s countervailing interest in maintaining discipline, and complexity of the issues); State, Ins. Cov. Office v. Rainier, 2010 Del. Super. LEXIS 260, *4 (2010) (unpublished) (concluding that imposition of some limitations on prisoner’s access to law library not strong enough interest to warrant appointment of counsel; Court also relies on prisoner’s failure to demonstrate attempts to secure private counsel as well as lack of evidence that “sets his case apart from the volume of cases in which pro se inmates litigate civil claims in this Court”).
A few courts have grappled with the right standard to use for appointment of counsel for prisoners and come to different conclusions. See e.g. Miller v. Taylor, 2010 Del. Super. LEXIS 167, *1, 6-7 (2010) (unpublished) (refusing
to apply six-factor test for appointment of counsel set out in Tabron v. Grace, 6 F.3d 147 (3rd Cir. 1993), to determine appointments
in federal court under 28 U.S.C. § 1915; court states that “Delaware State courts have considered Motions for Appointment of Counsel under the more narrow framework of the 14th Amendment Due Process Clause,” and that prisoner’s interest is “meaningful access to the courts,” that state has “strong countervailing interest in maintaining order and discipline in its penal institutions”
and that a “routine medical malpractice
claim is not complex enough to warrant
the appointment of counsel for an indigent plaintiff because both medical malpractice suits and inmate suits against prison officials are common”); Wood v. Collision, 2014 Del. Super. LEXIS 460, *2 (2014) (utilizing Tabron factors); Szubielski v. Correct Care Solutions, LLC, 2014 Del. Ch. LEXIS
221, *15 (2014) (unpublished) (relying on factors set out by Fifth Circuit in Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982), then adding that “Courts have held that an indigent civil litigant in a § 1983 suit is not entitled to counsel ‘unless the case presents exceptional circumstances’”).
35. See e.g. N.Y. Fam. Ct. Act § 262(a)(ii) (right to counsel for both sides in domestic violence cases); In re D.L., 937 N.E.2d 1042 (Ohio Ct. App. 2010) (constitutional right to counsel for minor respondents in DV cases); R.C. § 2151.34(O) (discretionary appointment of counsel for any respondent in criminal protection order cases); IDAHO CODE ANN. § 39-6306(1) (discretionary appointment of counsel for either side in protection order cases); D.C. Code § 16- 1005(a-1)(4) (in intrafamily proceedings involving protective order, court can appoint counsel for minor respondent or petitioner not accompanied by parent, guardian, custodian or other appropriate adult if it
will not “unduly delay” issuance or denial of order); J.L. v. G.D. 29 A.3d 752 (N.J. Super. Ch. 2010) (interpreting statutory scheme
to hold that minor petitioners in DV cases are entitled to appointed counsel in certain situations); In re Civil Commitment of D.Y., 95 A.3d 157, 167 n.5 (N.J. 2014) (citing approvingly to J.L.); 750 Ill. Comp. Stat. Ann. 60/213.3 (requiring court to appoint counsel for “high-risk adult with disabilities for whom a guardian has been appointed”).
36. See e.g. N.Y. Fam. Ct. Act § 262(a)(v) & N.Y. Surr. Ct. Proc. Act § 407(1)(a)(iv) (right to counsel for either side in private custody dispute); Flores v. Flores, 598 P.2d 893 (Alaska 1979) (constitutional right to counsel for parent where opposing side is represented by state-funded counsel).
37. See e.g. N.Y. Intro 214-B (2017) (requiring appointment of counsel for eviction defendants at 200% or below of federal poverty level); S.F. Prop F (No Eviction Without Representation Act)
(2018) (requiring appointment of counsel
for all eviction defendants regardless of income); Newark 18-0673 (2018) (requiring appointment of counsel for eviction defendants at 200 percent or below of federal poverty level).
38. John Pollock, The Case Against Case-By- Case: Courts Identifying Categorical Rights to Counsel in Basic Human Needs Civil Cases, 61 Drake L.J. 763, 776, 781 (Spring 2013), available at http://civilrighttocounsel.org/ uploaded_files/4/The_Case_Against_Case- by-Case_Pollock_.pdf.
39. Hughes v. Div. of Family Services, 836 A.2d 498, 509 (Del. 2003).
40. See Walker v. Walker, 892 A.2d 1053, 1055 n.5 (Del. 2005). In F.C. v. B.C., 64 A.3d 867, 876 n.50 (Del. Fam. Ct. 2013), the court observed, “Our Supreme Court [] held in Walker ... that parents have a right to court-appointed counsel in private guardianship cases.”
41. Matter of Carolyn S.S., 498 A.2d 1095 (Del. 1984).
42. Watson v. Division of Family Services,
813 A. 2d 1101 (Del. 2002). Curiously, one commentator suggested that “in Watson, the opportunity arose for the Delaware Supreme Court to decide whether indigent parents have a constitutional right to State-funded counsel in dependency and neglect proceedings.
The Delaware Supreme Court answered the question in the affirmative.” Felice Glennon Kerr, Family Court: Protecting the Rights
of Indigent Parents, 31-SUM Del. Law. 24 (Summer 2013). But this seems to contradict the actual language from Watson.
43. Watson, 813 A.2d at 1110.
44. Hughes, 836 A.2d at 509. In Delaware, termination of parental rights is considered a stage of dependency. Brown v. Division of Family Services, 803 A.2d 948, 951 (Del. 2002) (“The final stage in the dependency and neglect continuum is either a successful reunification of the family or a decision that the best interests of the child or children requires a termination of parental rights
... It is now well established that a petition to terminate parental rights is one of the two possible end stages in the three-part continuum that usually begins with a dependency and neglect proceeding.”)
45. Watson, 813 A.2d at 1111. 46. Id. at 1109 (emphasis added).
47. Moore v. Hall, 62 A.3d 1203, 1209 (Del. 2013).
48. Matter of Carolyn S.S., 498 at 1098-99. 49. Watson, 813 A.2d at 1110.
50. American Bar Association, Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings (101A) (2011), available at https://www. americanbar.org/content/dam/aba/ administrative/child_law/aba_model_ act_2011.pdf (recommending appointment of client-directed lawyer for child and that “the court may appoint a best interest advocate
to assist the court in determining the child’s best interests”). DEL. CODE ANN. tit. 29 § 9007A(c)(15) does at least say that “The attorney guardian ad litem shall... ascertain the wishes of the child and make the child’s wishes known to the Court. If the attorney guardian ad litem concludes that the child’s wishes differ from the position of the attorney guardian ad litem, he or she will notify the Court of the conflict.”
51. Matter of Carolyn S. S., 498 A.2d at 1098. 52. Id.
53. See e.g. Dorsey v. State, 761 A.2d
807, 819 (Del. 2000) (refusing to apply
good faith exception to probable cause requirement under Delaware Constitution, notwithstanding U.S. Supreme Court’s decision in United States v. Leon, 468 U.S. 897 (1984)); Claudio v. State, 585 A.2d 1278, 1289-90 (Del. 1991) (right to jury trial is broader under state constitution because Delaware retained English common law features of trial by jury); Jones v. State, 745 A.2d 856, 864-65 (Del. 1999) (providing broader prohibition against searches and seizures); Bryan v. State, 571 A.2d 170, 177 (Del. Supr. 1990) (right to counsel during questioning is broader under Delaware Constitution); Hammond v. State, 569 A.2d 81, 87 (Del. 1989) (rejecting U.S. Supreme Court bright-line rule on when destruction of exculpatory evidence is violation of
due process, noting that rules regarding preservation of evidence are matters of state law, and concluding that “we reaffirm our prior holdings, pursuant to the ‘due process’ requirements of the Delaware Constitution.”)
54. Sanders v. State, 585 A.2d 117, 145-46 (Del. Supr. 1990).
55. 686 A.2d 164, 166 (Del. 1996). 56. Id.
57. Id. at 168.
58. Id. at 169. The Court also found that the public defender could not be appointed to rep- resented contemnors in civil contempt cases, as the statute governing the PD’s office only applied to criminal cases. Id. at 169-70. The Court added that defendants were not entitled to appointed counsel in the hearing before a Family Court Master, as that Court’s finding of contempt would only “red tag” the case for a full hearing before a judge. Id. at 169.
59. Numerous studies have demonstrated that the presence of counsel significantly increases the chances of success, implying that the risk of error is high when litigants go unrepresented. See e.g. Rebecca
Sandefur, Elements of Professional Expertise: Understanding Relational and Substantive Expertise through Lawyers’ Impact, American Sociological Review, vol. 80, 5: pp. 909-933 (Oct. 2015) (providing overview of such studies).
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