Can You Get a Free Lawyer in Massachusetts Family and Probate Court? What is the Right to an Attorney?
Most people in the US are familiar with a phrase along the lines of, “you have the right to an attorney. If you cannot afford an attorney, one will be appointed to you.” But many are unsure about when this applies. In 1963, the US Supreme Court decided a case called Gideon v. Wainwright. In that case, a unanimous court decided that the 6th Amendment to the US Constitution guarantees a right to an attorney in any state or federal criminal case. The language of the Sixth Amendment is this, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” This right was provided under the reasoning that no person should have their liberty revoked without representation in legal proceedings.
The same does not apply in family court. There are no state or federal guarantees for counsel in most family law proceedings. In Massachusetts, there is an exception. If you are the parent or guardian in a care and protection case, where you face the removal of your children by the state, you are entitled to counsel by statute. This is an example of a critical feature of American law: state laws may provide protections greater than those provided by the federal government, but not less than. Accordingly, many activists have petitioned their state lawmakers to extend the right to counsel to civil proceedings. This is known as the “civil Gideon” movement, referencing the rights granted under Gideon v. Wainwright.
If you cannot afford an attorney in your divorce or custody proceeding, you will appear in front of the court pro se: representing yourself. Another difference between the criminal courts and the family courts in Massachusetts is that there are no juries. Divorce and custody trials are heard and decided by judges, not juries.
There are some agencies and organizations that offer pro bono (free) representation to people in need. Unfortunately these resources are limited and difficult to obtain. Some probate and family courts offer a “lawyer of the day” program. During certain days, a lawyer will be present at the courthouse to answer questions for free in person. To find out if your county has this program, you can call the register’s office at your county’s courthouse.