FAMILY LAW
Supreme Court of Alaska (2022)
Joseph Perry
In Matter of Office of Public Advocacy, 514 P.3d 1281 (Alaska 2022), the supreme court held that when a party in a child custody case is represented by a pro bono volunteer attorney through Alaska Legal Services Corporation (ALSC), that attorney is “provided by a public agency,” entitling an indigent opposing party to an appointed attorney through the Office of Public Advocacy (OPA). (Id. at 1288). In 2019, a wife sought a divorce from her husband, and contacted ALSC for legal help. (Id. at 1283). ALSC’s pro bono program matches eligible clients with private volunteer attorneys; the wife was matched with one of these attorneys. (Id.). The court informed the husband of his right to an attorney, and he proceeded to file a motion for assistance of counsel, given his indigent status. (Id. at 1284). Alaskan statute and prior supreme court precedent held that, in a child custody case, where one parent’s counsel is “provided by” a public agency, OPA is to provide counsel for an indigent opposing party. (See id. at 1285). The superior court ordered OPA to designate an attorney for the husband. (Id.). OPA challenged the order, arguing that the wife’s attorney was a private attorney volunteering through ALSC, and therefore not an attorney “provided by” a public agency. (Id.). The argument followed that OPA should not be required to provide an attorney for the husband. (Id.). The superior court denied the motion, and OPA reiterated this argument on appeal before the supreme court. (Id.). The supreme court affirmed the lower court’s denial of OPA’s motion, holding that an attorney assigned through ALSC, an organization receiving public funding, was “provided by a public agency,” regardless of whether the attorney is a volunteer or paid member of the ALSC staff. (Id. at 1288). The court reasoned that the right to counsel for parties like the husband in the instant case arises from the government’s one-sided support of the opposing party through a public agency. (Id. at 1286). Given the purpose of the rule to alleviate fairness concerns, it would be improper for a divorcing spouse to receive an attorney when the opposing party’s attorney is paid by ALSC, but not when said attorney is a volunteer through ALSC. (Id. at 1288). Affirming the superior court’s decision, the supreme court held that an attorney assigned through ALSC’s pro bono program should be considered “provided by a public agency,” thereby triggering the right to OPA-provided counsel for an opposing indigent party. (Id.).
