The Case for Civil Gideon: A Response to David Giacalone
This post is a response to David Giacalone’s “Family Law Civil Gideon: are free lawyers always the best approach” on the Self-Help Law ExPress.
With all due respect to an experienced supporter of pro se litigants, I take great issue with David Giacalone’s characterization of civil Gideon and the effects that it would have on those who can’t afford lawyers in important civil proceedings.
Surprisingly, Giacalone has aligned himself with Walter Olson (or Olson aligned himself with him) in apparently opposing the creation of civil Gideon (a right to civil counsel in important civil proceedings). In Olson’s words, civil Gideon is not only just a bad idea, but “actually quite scary in its implications.”
Who knew that giving low-income persons an attorney and not requiring them to litigate their basic human needs without professional legal assistance was something that could be characterized as “scary.”
Last fall, the American Bar Association ("ABA") took the first historic step to correct this problem by passing a resolution endorsing a right to counsel for low-income persons whose basic human necessities are put in jeopardy.
RESOLVED, That the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody as determined by each jurisdiction. (link)
Here, the right endorsed by the ABA is not a right to an attorney if you get a paper cut, but is targeted specifically at low-income persons whose basic human needs are at stake. Olson (of the conservative Manhattan Institute) and Giacalone sit on the opposing side of the ABA’s resolution and apparently oppose this reasonable right. Indeed, the right is seen by the American public as so reasonable that almost 80% of Americans assume that it already exists.
To see the issue otherwise embraces the rather absurd proposition that one should be entitled to an attorney when they risk spending even just a day in jail, but should not have this same entitlement to a lawyer to defend against an eviction that may throw them and/or their family into permanent homelessness.
Taking Olson and Giacalone’s position further also requires accepting the proposition that an unrepresented pro se litigant can (on average) better litigate their interests than a trained attorney who at the very least went through three years of specialized training in law school and passed the state’s bar exam (the caveat being that it is still true that the attorney’s motivation to do an excellent job is affected by other factors as discussed in more detail below).
However, given Giacalone’s background and expertise in assisting unrepresented clients his specific arguments are very much worth real consideration and debate.
Here are Giacalone’s major concerns, and my point by point response to each.
1) Giacalone: “[Civil Gideon] looks far too much like an Attorney Employment Assurance Plan for underemployed members of the Main Street bar. In addition, Civil Gideon is backed by some groups that resisted court-based self-help centers, for fear they would undermine legal aid budgets, as well as by private lawyer groups who resisted both self-help centers and alternative dispute programs at courts, for fear that they might lose clients or have cases shortened by settlements.”
Me: The internal politics of support for self-help funding is unfortunate, but have little to do with the validity, morality, necessity, and importance of a right to civil counsel (let alone any right at all). Unfortunately, because Legal Aid funding is constantly under threat, those supporting Legal Aid had a significant basis for concern that the funding for these services might be reduced by increased funding for self-help legal support. Pointedly, in inflation adjusted dollars, today Legal Aid receives just 49% of what it received in 1981. But even if a side effect of civil Gideon is that more lawyers have more work, so be it. The point is that unrepresented people not be dragged into court and asked to defend their interests without an attorney. In any event, surely the creation of a right to counsel can be supplemented by maintaining or slightly increasing self-help funding for those who are too well off to qualify for the assistance or for those low-income person who waive their right to counsel. Moreover, it should be the low-income person who makes the choice to waive a right to counsel, not those who provide self-help assistance who decide for them that counsel is not helpful.
2) Giacalone: It assumes that lawyers can do a better job than reasonably-informed laypersons in presenting cases that involve their families (or sustenance and housing conditions). This infantilizes litigants and denigrates the intelligence of the vast majority of pro se litigants, who know far better than any lawyer the facts of their situation and are capable of telling their stories to receptive judges. It also contradicts studies of family court lawyers; see below)
Me: I have to say that I find this argument similarly strange. Knowing “the facts of your situation” and being able to “tell your story” are different than navigating the procedures and technicalities of the legal system, and is even more different still than successfully gaining one’s desired outcome. Nothing keeps you from telling your story when you also have an attorney and/or doing so in a way that might help your legal case be effective. It’s rather "infantilizing" and "denigrating" to their intelligence to say that low-income lay persons can’t decide for themselves if they’d rather have a lawyer or not. The great weakness of the above point is that it for some reason assumes that self-help and being guaranteed a right to counsel are somehow inherently incompatible (perhaps Giacalone ironically feels this way because of a fear that civil Gideon will in turn take away funding from self-help services). Persons with lawyers are just as able to educate themselves about the legal system and direct their appointed attorney to take the appropriate actions in a more informed manner. Lastly, self-help also assumes that the pro se litigant has the time, energy, and resources to access to educate themselves of the law and relevant procedures. This reality means that the most desperate and least resourced persons are the least able to take advantage of self-help services. The fact that the assigned lawyers don’t have the pay incentives to care in many instances in civil and criminal cases is not a reason to reject civil Gideon, but a reason to increase the minimum pay of assigned counsel (as occurred in New York for criminal defense attorneys after this problem was publicized through the efforts of Chief Judge Judith Kaye). It "infantilizes" low-income persons to assume that they don’t want an attorney and would rather educate themselves about the law on the go.
3) Giacalone: It assumes that two opposing lawyers will more quickly and fairly settle a case than will unrepresented parties. (As Law Guardian for hundred of children in family court, I saw far too many cases where lawyers dragged out cases, inflamed conflict, misunderstood the basic needs of the parties.)
Me: This point speaks to instances where there are two counsel involved and the quality of their legal representation, but does not speak in any way to the issue of major concern of civil Gideon: when one person has to be in court against somebody with a lawyer. This circumstance is the most ripe for abuse and unfair results. Perhaps the most telling example of this phenomenon is NYC Housing Court:
“In New York City’s Housing Courts, the justice system is seriously out of balance: estimates show that about 90% of tenants face eviction alone, while about 98% of landlords have lawyers. Unrepresented tenants are far more likely to experience an unfavorable outcome than those who have lawyers.” (link)
Giacalone may be right (although in most instances if the parties could work it out on their own query why they would be in court) when no lawyers are involved, but he’s certainly not right when only one side has a lawyer. He's also even less right (at least about fairness) when one side doesn't even have the option to have one. It would be one thing if Giacalone was also arguing that both parties should agree to not use attorneys (and query again if they can agree to that why they couldn’t work out their conflict out of court), but he’s not. Instead he’s arguing for the status quote in which one side often goes in with a lawyer and the other does not.
4) Giacalone: It assumes that Assigned Counsel will competently and diligently represent their low income client (see discussion below).
Me: The cause of this problem of less than stellar representation is the low pay, high case load, and/or at times, the lack of specialization and experience of assigned counsel. These concerns are easily addressed. In a short policy brief drawing from the experience of the right to counsel in the criminal context, Laura K. Abel, Associate Director of the Brennan Center for Justice, addresses how to insure that civil Gideon be implemented in a way that maximizes the competence and diligence of the attorneys who fulfill this role (A Right to Counsel in Civil Cases: Lessons from Gideon v. Wainwright).
By drawing on the lessons of the implementation of a right to counsel in the criminal context Abel addresses the concern that Giacalone alludes to above. In short, the solution is: provision of adequate funding, exclusive use of institutional providers such as legal aid, appointment of counsel by an independent agency or board, establishment and enforcement of minimal standards for counsel, creation of a uniform system of representation across the state. If her recommendations are implemented the above point becomes mute.
5) Giacalone: It overlooks the fact that hiring an attorney virtually impoverishes, or is simply beyond the financial ability of, a very large portion of Americans who are not considered poor, but are far from rich — and, unlike self-help programs, Civil Gideon makes no accommodation for these people. [update: March 10, 2007: see our post “the dis-accessed middle class of North America,” which discusses the situation in Canada, as seen through the eyes of their Chief Justice.]
Me: If anything this point further supports the need for civil Gideon. If hiring an attorney virtually impoverishes middle-class persons, the impoverishment of low-income persons is not just “virtual,” but undeniable. Some European nations not only provide counsel to low-income persons, but also subsidize middle-class individuals for the reasons stated above. Giacalone’s observations argue in favor of the further extension of support for civil counsel beyond low-income persons, not the non-existence of the right for low-income persons. Ironically, the above cited post “the dis-accessed middle class of North America” includes quotes from the Canadian Chief Justice that argue against the effectiveness of self-representation as a primary tool.
“Injustice is, at times, compounded when people choosing to represent themselves are without the proper legal knowledge to do so. . . .”
“The Chief Justice also pointed out that “Putting the facts and the law before a judge [instead of use of a lawyer] may be an insurmountable hurdle. The trial judge may try to assist, but this raises the possibility that the judge may be seen as helping or partial to that person. The proceedings adjourn or stretch out, adding to the public cost of running the court.”
In addition the post includes:
To no one’s surprise, Chief Justice Beverley McLachlin of the Canadian Supreme Court was voicing her concerns recently over the numbers of self-represented litigants throughout the court system. (see, Canada.com, “Chief Justice warns of ‘epidemic’ of self-representation in courts,” Aug. 13, 2006; cbcNews, “Self-representation creating chaos in courts:chief justice,” Aug. 12, 2006)6) Giacalone: It overlooks the fact that every single day thousands of low-income Americans are able to receive a fair hearing of their disputes in Family (and other people-oriented) Courts — and that self-help centers and pro se programs for judges and court staff are spreading and becoming more and more effective.
Me: As has been found by the great majority of studies only about 20% of the civil legal needs of low-income persons are currently being met. See American Bar Association, Task Force on Access to Civil Justice, 14 (Unanimously Approved by ABA House of Delegates August 7, 2006). Of course there are thousands who are able to get counsel or self-represent, but there are millions who are not. As mentioned before self-representation itself is also most helpful to the most self-empowered and resourced low-income persons. Those who are truly on the brink will face the greatest difficulty finding the time and resources to educate themselves about and in court. For example, it would be hard to argue that fair results are being reached in NYC Housing Court.
See report on NYC housing court evictions: Results From Three Surveys of Tenants Facing Eviction in New York City Housing Court
In conclusion, I find Giacalone’s opposition to civil Gideon to be rather strange. If one supports empowering persons without attorneys to be able to better self-represent themselves, it would seem to follow they would also support getting competent lawyers to lend a hand as well. These two goals are not mutually exclusive.