Right to Civil Counsel (“Civil-Gideon”)
The Problem: Americans Without Access to Representation in Important Civil Legal Matters
“It is self evident to judges, practicing attorneys, and thoughtful persons, that in most instances indigent persons without counsel are not receiving the same quality of justice as those with counsel and are effectively deprived of meaningful access to the courts.” --In re the Marriage of Michael Steven King v. Brenda Leone King, Brief Amicus Curiae of Retired Washington Judges in Support of Appellant(1)
Currently, American citizens are guaranteed a lawyer if they run the risk of being sentenced to prison, but not if they face the threat of eviction or of losing public benefits that help them feed their families. The Supreme Court’s decision in Gideon v. Wainwright established a right to counsel for defendants in criminal matters where their liberty is at stake.(2) Unlike our criminal justice system, access to our civil justice system is more or less dependent on an individual’s economic means; it is largely a “pay-to-play” system. While courts have considered whether litigants who cannot afford a lawyer should be entitled to one in important matters, a 1981 Supreme Court case, Lassiter v. Department of Social Services, established that the presumption is that they do not.(3) This creates a gross injustice for people entwined in critically important civil legal matters who cannot afford legal representation.
When contingency and pro bono arrangements are impossible, and when legal aid is unavailable, the lack of access to counsel can have devastating effects on people’s lives. People are evicted from their homes, lose health benefits, lose child custody, and lose their source of sustenance, not because of legal wrongdoing but sometimes solely because they did not have a lawyer.(4) According to a group of retired Washington State judges who advocate for a right to representation in important civil matters:
[I]ndigent persons without counsel receive less favorable outcomes dramatically more often than those with counsel. The disparity in outcomes is so great that the conclusion is inescapable—indigent pro se litigants are regularly losing cases that they should be winning if they had counsel.(5)
The Sixth Amendment to the United States Constitution guarantees all Americans a right to counsel in criminal cases in which their liberty is at stake.(6) The Fourteenth Amendment’s Due Process Clause requires all states and state courts to honor this right. In the Supreme Court’s words:
[Reason] and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.(7)
However, no such guarantee has been recognized for individuals needing representation in civil cases, even those in which basic human needs — “such as those involving shelter, sustenance, safety, health, or child custody.”—are at stake.(8) Eighty percent of low-income persons and between 40 and 60 percent of middle-income persons in this country who need a lawyer cannot access one.(9) Without access to a lawyer, people facing legal crises must choose between self-representation and not going to court at all; and when the person is a civil defendant, such as in eviction actions, his or her only option is to go to court unrepresented and thus at a serious disadvantage regardless of the strengths of his or her claims or defenses.
A few avenues allow individuals who cannot afford a lawyer to obtain representation, but they are insufficient to meet the need. People whose legal claims hold the potential for large awards can obtain a lawyer on a contingency fee basis, an agreement wherein the person does not pay unless he or she prevails in court. But many people do not have the option of a contingency agreement because they are involved in legal claims in which no significant monetary award is likely. Other people seek legal assistance through legal aid or pro bono representation, but there is not nearly enough of it to meet the need, especially in communities that have fewer lawyers and resources, such as in rural America.(10)
The federal government helps pay for legal aid to low-income communities through Legal Services Corporation (LSC) funding. Legal aid programs provide a tremendous resource to people who would otherwise be unable to afford a lawyer, but these programs are stretched thin due to the inadequacy of the funding.(11) As of 2003, about 45 million low-income Americans met financial qualifications for legal aid, but LSC-funded programs, at their present level of funding, can only provide services to 1.4 million people.(12)
The Policy Proposal: Establish a Right to Counsel in Important Civil Matters
The nation’s next President can make access to justice attainable regardless of a person’s income by urging Congress to establish a civil version of the right established in Gideon v. Wainwright. He or she can urge Congress to establish what supporters call a “Civil Gideon” right to counsel in important civil legal matters for those who cannot afford it.(13) Under Civil ¬Gideon, if a person’s basic human needs—relating to health, housing, child custody, or the ability to obtain food—are at stake, and he or she cannot afford representation, he or she would be entitled to a court-appointed lawyer. Almost 80 percent of Americans believe that a Civil Gideon right already exists.(14) This suggests that the challenge of establishing Civil Gideon lies in its implementation and not in shaping public will.
Many other countries, including Canada and almost fifty countries that participated in the European Convention for the Protection of Human Rights and Fundamental Freedoms, have already established a right to counsel in important civil matters for indigent people.(15) Some states have provided for a right to counsel in certain civil matters. But to the extent that counsel is provided in discrete areas of the law, it is unevenly applied throughout the fifty states, creating a system in which one’s rights depend on where one resides and what type of important legal claim one has.(16)
The best way to implement Civil Gideon is to convince Congress to pass federal legislation providing a right to civil counsel when basic human needs are at stake. The Civil Gideon right to counsel would be available in a uniform matter across the fifty states.(17) This federal legislation should be complemented by reinforcing state laws across the fifty states, along with guidelines on the qualifications, training, role, and compensation of attorneys who provide free counsel to indigent defendants.(18) The next President should take the following steps to establish Civil Gideon rights:
1) Advocate for federal legislation. Advocate for legislation requiring the provision of counsel in all civil cases in which basic human needs are at stake, “such as those involving shelter, sustenance, safety, health, or child custody.”(19)
2) Advocate for Increased funding to the Legal Services Corporation. The Legal Services Corporation already funds the provision of legal aid to individuals who cannot afford attorneys, and if equipped with more funding and support, it could be the appropriate vessel for providing Civil Gideon. Current LSC spending levels are approximately $600 million per year, including both state and federal spending as well as Interest on Lawyer Trust Accounts (“IOLTA”) funding.(20) LSC funding must be increased dramatically in order to implement a right to counsel in important civil matters.(21) The President must commit to increasing federal appropriations for the Legal Services Corporation.
3) Urge a stronger nationwide commitment to Interest on Lawyer Trust Accounts (IOLTAs). IOLTAs are interest-bearing bank accounts that hold clients’ money in trust during litigation. Each individual client’s account, if stored separately, accrues only negligible interest, but when pooled with other clients’ accounts, these funds generate significant income through interest, which is then used to support legal services work. Clients keep all the money they put into the account, and only the interest earned off of that money goes to LSC funding. All states have IOLTA programs but only 32 states require lawyers’ participation and most states do not require banks to offer interest rates for IOLTA accounts that are comparable to other accounts.(22) Requiring participation and comparable interest rates would increase IOLTA-derived funding dramatically. The next President should promote legislation requiring that all states participate in an IOLTA program and that all banks offer comparable interest to IOLTA accounts.
4) Eliminate restrictive “physical separation requirement” for legal aid providers. The federal government has placed harsh restrictions on the use of federal funding for civil legal aid.(23) It prohibits organizations that receive LSC funding from pursuing class actions, engaging in outreach to potential clients, and assisting many different classes of immigrant groups, unless these organizations maintain a separate physical space and separate funding sources for these activities. This requirement increases the overhead costs for already financially-strained legal service providers, making it unreasonably burdensome for the organizations to use even privately donated legal funds for the prohibited services.
(1) In re the Marriage of Michael Steven King v. Brenda Leone King, Brief Amicus Curiae of Retired Washington Judges in Support of Appellant. Available at http://www.brennancenter.org/dynamic/subpages/download_file_48463.pdf.
(2) Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
(3) See Lassiter v. Dept. of Soc. Svcs., 452 U.S. 18 (1981) (Child custody case where the Court found under the Due Process Clause that a balancing analysis must be used to determine if counsel is necessary for a given party in a given trial, but imposed a presumption against providing counsel).
(4) See, Russell Engler, Shaping A Context-Based Civil Gideon From the Dynamics of Social Change, 15 Temp. Pol. & Civ. Rts. L. Rev. 697, at 714 (2006) (Finding dramatically improved outcomes for represented litigants as opposed to those who are unrepresented in matters including petitions for protective orders against domestic abusers and tenants in eviction actions).
(5) In re the Marriage of Michael Steven King v. Brenda Leone King, Brief Amicus Curiae of Retired Washington Judges in Support of Appellant. Available at http://www.brennancenter.org/dynamic/subpages/download_file_48463.pdf.
(6) This does not extend to the right to an appeal of a decision.
(7) Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (emphasis added). (“From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with a crime has to face his accusers without a lawyer to assist him.”).
(8) Lassiter v. Dep't of Social Services, 452 U.S. 18 (1981). (Finding that the Due Process Clause requires judges to use a balancing analysis during child custody proceedings to determine if counsel is necessary for a given party in a given trial. The Court imposed a presumption against the provision of counsel.); This “basic human needs” language and definition are commonly employed by a variety groups that advocate for Civil Gideon.
(9) American Bar Association, Task Force on Access to Civil Justice, 14 (Unanimously Approved by ABA House of Delegates August 7, 2006) (“Most needs studies conclude the U.S. is already meeting roughly 20 percent of the need.”), available at http://www.abanet.org/legalservices/sclaid/downloads/06A112A.pdf.
(10) See, Struggling to Meet the Need: Communities Confront Gaps in Federal Legal Aid, 20 (Brennan Center for Justice, 2003). (“As valuable as pro bono is, the hours contributed by the private bar have never been enough to meet the need. There is a particular shortage in rural areas, where there are few lawyers, and where the few lawyers who do exist rarely work for the sort of large firms that can afford to contribute to vast amounts of pro bono time.”); In re the Marriage of Michael Steven King v. Brenda Leone King, Brief Amicus Curiae of Retired Washington Judges in Support of Appellant, supra note 5 (“Efforts to provide pro bono representation for indigent litigants in civil cases have not come close to meeting the need.”).
(11) See, Struggling to Meet the Need: Communities Confront Gaps in Federal Legal Aid, supra. note 10.
(13) American Bar Association, Task Force on Access to Civil Justice, supra note 9, 1.
(14) See Mary Deutsch Schneider, Trumpeting Civil Gideon: An Idea Whose Time Has Come?, 63 Bench & Bar of Minn., 4 (2006) (citing California State Bar Report, “Bar Survey Reveals Widespread Legal Illiteracy,” 11 Cal. Lawyer 68, 69 (1991)).
(15) See ABA Task Force on Access to Civil Justice, “Report to the House of Delegates,” at 3, 8, (Aug. 2006); Fifth Periodic Report: Canada, 18/11/2004, CCPR/CAN/2004/5 (State Party Report) at 22. (Canadian court decision requiring government “to provide an indigent party with state-funded counsel.”).
(16) See Laura K. Abel and Max Retig, State Statutes Providing for a Right to Counsel in Civil Cases, CLEARINGHOUSE REV., 245-270 (Jul.-Aug. 2006).
(17) See Id. (finding a lack of uniformity due to uneven local implementation of Civil Gideon, and that this can prevent effective and equal access to counsel sometimes even within the same state.).
(18) See Id. (noting the lack of such guidance on a national level)
(19) This is the commonly employed language used by a variety of groups that advocate for Civil Gideon.
(20) See Struggling to Meet the Need: Communities Confront Gaps in Federal Legal Aid, supra at 5
(21) American Bar Association, Task Force on Access to Civil Justice, supra note 9 (“Most needs studies conclude the U.S. is already meeting roughly 20 percent of the need.”). Based upon the ABA Taskforce’s finding that “most needs studies conclude the U.S. is already meeting roughly 20 percent of the need.”
(22) Status of IOLTA Programs (Commission on Interest in Lawyers’ Trust Accounts, Jan. 18, 2007), available at http://www.abanet.org/legalservices/iolta/ioltus.html.
(23) For more information on the physical separation requirement, visit the Brennan Center’s Access to Justice web page, available at http://www.brennancenter.org/subpage.asp?key=413&tier3_key=9544.