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Let's say, in California, a Forbes 500 multi-billionaire wrongdoer has engaged and continues to engage in such fraudulent and/or malicious and oppressive conduct that has made plaintiff and continues to make plaintiff entirely disabled from, impossible or extremely difficult to (i) earn as it is sufficient for the basic necessaries of life and (ii) to afford even housing let alone an attorney, if for the purposes of pre-trial discovery or otherwise, the plaintiff shows that it is substantially probable that they will prevail in a certain cause of action, can that be used enjoined with a Four-Teenth Amendment argument to request reasonable attorney's fees to be provided for such cause of action to be brought before the court or be amended properly as otherwise it is impossible for plaintiff and plaintiff is disable to present his case in equity under Amendment Four-Teen?

If so, is there any close or remotely close authority?

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2 Answers 2

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Absent a divorce or termination of parental rights case (and certain cases of a probate/trust character), this would almost never happen.

In divorce, probate and trust cases, the party may have an equitable interest in property controlled by another which justifies a pre-merits determination award out of property that is really their's not due to the merits outcome.

In termination of parents rights cases, the right to fees in this litigation with the state is by analogy to the right to a state paid attorney in criminal matters established in the Gideon case.

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  • Could 28 U.S. Code § 1915 be pioneered maybe on the analogy of the Gideon case or by compelling a judge to ask action from the Legislation? (Your comments already made me love this forum, and be completely obsessed with it! 😅)
    – kisspuska
    Commented May 24, 2021 at 20:56
  • yes, in forma pauperis, under Government Code §§ 68630-68641, and yes, those do not provide for representation or even assistance. bdb484's comment though claims representative may also be appointed in federal court though I'm not* versed in the statute myself.
    – kisspuska
    Commented May 24, 2021 at 21:03
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    Sometimes a court can appoint counsel to a case when no party supports a position that needs to be defended, see, e.g., the Amistad case and some cases challenging the constitutionality of legislation that no party in the trial court defends. But, AFAIK, this isn't under 28 USC § 1915.
    – ohwilleke
    Commented May 24, 2021 at 21:07
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    I missed 28 USC § 1915(e)(1) at first glance. I suspect that this may be pro bono service until there is a post-trial award of fees. Not very familiar with it. Some related case law discussed at scotusblog.com/wp-content/uploads/2016/12/16-287-BIO.pdf
    – ohwilleke
    Commented May 24, 2021 at 21:09
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    On point: "28 USC 1915(e)(1) states that a federal court "may request an attorney to represent any person unable to afford counsel." The Supreme Court has said that this provision does not give a court the authority to "appoint" counsel, but rather can only ask an attorney to serve willingly. Mallard v. United States District Court, 490 U.S. 296 (1989). The statute also does not provide for compensation for appointed counsel."
    – ohwilleke
    Commented May 24, 2021 at 21:16
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This is not a thing that can happen.

If the case is in federal court, 28 U.S. Code § 1915 permits the court to appoint counsel to represent an indigent plaintiff. In state courts, my understanding is that California law only permits the court to appoint plaintiff's counsel in certain family-law matters.

If the defendant's case to avoid liability is frivolous, you can seek sanctions at basically any stage in the litigation, but you would be limited to collecting your legal fees up to that point; you would not be permitted to force the opposing party to fund your case in advance.

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  • Thank you for your answer! Would 28 U.S. Code § 1915 allow for such appointment before the filing of the complaint, filed confidentially, without the other party to look for information that would prejudice the causes or in any other ways without prejudice and case since filing would lead to an issue around Twombly and Iqbal which wouldn't apply in California Superior Courts?
    – kisspuska
    Commented May 24, 2021 at 20:52
  • An interesting question! Feel free to post it as a new question and I'll be happy to take a look.
    – bdb484
    Commented May 24, 2021 at 23:21
  • Thank you, thank you, I'll go right ahead!
    – kisspuska
    Commented May 24, 2021 at 23:22

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