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Although an Indiana law placed no limits on an indigent litigant’s right to appointed counsel in a civil action, the Indiana Supreme Court held on Dec. 21 that that right is limited by the nature of the lawsuit and the availability of funding for counsel. Sholes v. Sholes, No. 27S02-0112-CV-655. The law provides that civil litigants without “sufficient means to prosecute or defend” an action “shall” be appointed counsel, but the court said the statutory mandate fails when it interferes with judicial discretion to appoint such counsel. The high court’s decision was rendered in a divorce action between an allegedly indigent Indiana State Prison inmate, David T. Sholes, and his wife, Christine. David Sholes is serving a life sentence for three murders and one attempted murder. He filed for pauper counsel after a trial court directed his former employer to pay 100 percent of his retirement benefits to Christine. To determine whether the expense of counsel is warranted, the state supreme court said a trial court must first consider whether the indigent litigant has a colorable bona fide dispute. If he does, and no pro bono provider is available, the trial court must then decide whether it has the power to order the county to pay for counsel under state Trial Rule 60.5. The court noted that a severe and adverse impact on fiscal or other governmental interests would be an overriding consideration that prevents expenditure of public funds for appointed counsel. It also said, “[W]hether an applicant has ‘sufficient means’ goes beyond a mere snapshot of the applicant’s financial status,” explaining that a poor person might have sufficient means to proceed without counsel when a contingency fee arrangement is available, or in small claims actions typically prosecuted and defended pro se even by people of means. The pauper counsel law has existed in its basic form since the early days of Indiana’s statehood, and was recently recodified as Indiana Code � 34-10-1-2, but it has been infrequently invoked. It was first raised in this case not by David Sholes, but by the Indiana Court of Appeals, when it vacated all proceedings that followed a trial court’s denial of David Sholes’ original pauper counsel petition and that court’s refusal to set aside the qualified domestic relations order entered against him. Remanding the matter, the state supreme court said the trial court had to consider the newly announced guidelines to determine whether appointment was appropriate. An appointment can be appealed by the county that has to pay for it. “The court’s decision is not going to cause any floodgates to open,” said David Sholes, who researched and wrote his own brief with the help of other inmates. “The law’s been around since the 1800s and there’s never been any abuse.” He claimed that the bulk of prisoner claims are federal, not state, so the Indiana law would not even be applicable. But Christine Sholes’ appellate attorney, David W. Stone of Anderson, Ind., said the cost of implementing the law, as interpreted by the court, would “create more problems and should be an impetus for the legislature” to make some changes, such as creating a payment mechanism and enunciating clearer instructions to judges. Such changes are being considered by the state’s Commission on Courts, said Jeffrey K. Baldwin, who filed an amicus brief for the Hendricks County Bar Association. Because of the large number of prisons in Hendricks County, the financial impact of the court’s decision may fall heavily there, but Baldwin opined that the court actually adopted a middle ground. Jamie Andre of Indiana Legal Services Inc., which also filed an amicus brief, noted that legal aid organizations that receive state or federal funding are prohibited from representing prisoners, so there should be an increase in representation for the incarcerated following the court’s ruling.

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