As always, before reading this post please review my disclaimer by clicking on the link above or by clicking on this link. As always, all legal principles discussed in this post apply only to the Commonwealth of Virginia.
Note: This post was inspired by a question e-mailed to me in response to my post about what to do when you've been sued.
Introduction
It always takes me by a bit of surprise when I encounter people who do not understand in what situations someone who is poor can get a court-appointed free attorney, and in what situations they cannot. Within the legal profession, the distinctions are fairly clear. It is not until we start digging into the weeds of why potential clients or litigants think, incorrectly, that they can receive a court-appointed attorney that those of us within the profession start to understand.
The fact is there are two completely different kinds of "free" attorneys. The first kind is court-appointed attorneys - these are attorneys the court picks to represent you, and the court pays the attorneys for their service (although usually well below the attorneys' regular billing rate). The second kind is a pro bono attorney who volunteers to represent you (rather than being required to do so by the court), and (with very limited exceptions) is not paid by anyone for their work representing their pro bono client. A court appointed attorney is provided to you in situations where you meet certain income qualifications and you are in a legal situation where you have a right to be provided an attorney. A pro bono attorney can (depending on the requirements of his employer, not the court) represent you regardless of your income, and can represent you in any kind of case where you have a right to have an attorney. Usually the confusion amongst potential clients and litigants come from learning someone else has a pro bono attorney, and not understanding the distinction between the two.
Right to Be Provided an Attorney vs. Right to Have an Attorney
So, given that distinction, you might wonder in what situations you have a right to be provided an attorney, and when do you have a right to have an attorney? Well, let me explain what I mean first. The right to be provided an attorney is the right to, if certain criteria are met, have a court pick an attorney and require that attorney to represent you for no charge to you (this may sound harsh on the attorney, but in reality the attorneys are chosen from a list that attorneys voluntarily join or from the local public defender's office). The right to have an attorney is simply the right to be represented by any attorney, whether free or hired by you.
So, first of all note that the former is a subset of the latter. In other words, every situation in which you have a right to be provided an attorney, you also have a right to have an attorney, so even if you cannot afford one you can pick your own attorney if you get a family member to pay them or you find someone willing to represent you pro bono. The reverse is not true, however - there are many situations in which you have the right to have an attorney, but to not have the right to be provided an attorney.
While there are exceptions, you virtually always have the right to have an attorney. In any legal predicament you are in, you can consult an attorney if you wish. You also always have the right to have an attorney if you are in front of a court. If you are in front of an administrative agency, however, you sometimes have the right to have an attorney represent you there, and sometimes don't - it depends on the administrative agency.
Of course, the big question this leaves is, when do you have a right to be provided an attorney? Well, the right to be provided an attorney traces its roots to the seminal Supreme Court case of Gideon v. Wainwright, which ruled that the 5th and 6th amendment rights to counsel and due process are meaningless if someone who cannot afford such an attorney is thus denied such an attorney. Despite its wide notoriety, however, Gideon v. Wainwright left unanswered many questions about exactly what kinds of cases warrant court-appointed attorneys, and it took years of litigation afterwards to establish the current rules.
The rule in Virginia in force today is that you have the right to a court-appointed attorney if you meet certain income requirements, and an adverse ruling might send you to jail. In other words, you must be involved in a criminal case, charged with a class 2 misdemeanor or more severe (less severe misdemeanors are fine-only penalties), and if charged with a class 2 or class 1 misdemeanor, the prosecutor must not have waived his right to pursue a jail sentence. You also can get a court-appointed attorney if you meet the income requirements and you are the subject of a civil contempt proceeding (for failure to obey a court order, for example). That's really it - unless you are in those situations, you do not get a court-appointed attorney.
Guardians ad Litem
There is a category of attorneys appointed by the court that I have not mentioned yet - guardians ad litem. I largely left them out because they are not "free" per se - a party or parties to the case will have to pay them - and because their appointment has nothing to do with the income of the parties to the case. They are worth mentioning briefly, however. A guardian ad litem is an attorney who has undergone extensive training and is appointed by a court to represent a person the court believes may not be able (either physically or mentally) to represent him or herself. It is the guardian ad litem's job to ascertain her "client's" best interests, and represent those, regardless of what the subject of the guardian's representation actually tells the guardian he wants. While this list is by no means exhaustive, guardians ad litem are generally appointed to represent children in custody cases, adult subjects of guardianship and conservatorship petitions, prison inmates who are defendants in a lawsuit, and other persons who are party to a lawsuit that the court believes are mentally and/or physically unable to represent their own interests in the case. Note, however, that the last category is very hard to get a guardian ad litem appointed for. I once observed a hearing where a person was asking for a guardian appointment, and she explained why she needed one so well that the judge concluded she was able to represent her own interests and denied the request!
How to Get a Pro Bono Attorney
So, if you realize now that you are not in a situation that qualifies for a court-appointed attorney, you might be wondering how you can get one of those pro bono attorneys. The answer, unfortunately, is not simple - and can often take a good bit of searching. Most areas have a local legal aid organization. If they cannot on their own find you a pro bono attorney, they will usually at least be able to tell you where to look. Beyond that, it can be a crap shoot. If you have a large law firm near you, they may have a pro bono program, and it may be worth contacting them. I do wish I had more thorough advice on this, but the fact is that oftentimes finding a pro bono attorney is more a matter of being in the right place at the right time than anything else - especially if you have a case in which your local legal aid organization cannot help you.
Conclusion
There are many situations in which you have the right to have an attorney but, even if you are very poor, do not have the right to have an attorney provided to you. If you are not facing potential jail time, you do not have the right to have the court appoint an attorney for you. If you are in a legal situation where you cannot afford an attorney, but you do not have the right to have one provided, contact your local legal aid organization and see if you can find a way to get a pro bono attorney.
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