Access to Justice: Is Civil Gideon A Piece of the Puzzle?

Volume 32 Number 6

By

As president-elect of the American Bar Association, Michael Greco thought he was on uncertain, untested ground in early 2005 when he stood before the Alabama Law Foundation to call on the profession to support the civil right to coun-sel—often known as “civil Gideon."

“I didn’t know what kind of reception I would get,” he recalls. “This had never been put out there [formally] by the ABA before."

He got a standing ovation.

Less than two years after that momentous speech, Greco helped lead the ABA House of Delegates to pass a unani-mous resolution outlining the ABA’s strong support for the civil right to counsel. To many in the profession, that was a critical moment in the push for civil Gideon.

Since the passage of that 2006 resolution, several state and metropolitan bars have passed similar measures or are contemplating them. Task forces have been created, pilot projects launched, and discussions held, all in the vein of vastly improving access to justice for indigent citizens in many high-stakes civil court proceedings.

While many questions remain in regard to the funding, administration, and implementation of civil Gideon programs na-tionwide, many advocates say the time is right for such discussion at bar associations and foundations. Spiraling home foreclosure rates, increasingly complex child custody cases, and a lack of legal services funding and lawyers continue to make it unlikely that many indigent citizens will get the legal help they need, supporters say.

It is an issue, they say, that goes to the heart of the mission of most bars. And thanks to a growing network of active, information-sharing associations and foundations, it is an issue that continues to gather momentum.

Watershed moments

Use of the term “civil Gideon” goes back at least a decade, when advocates searched for a way to promote the need for an approximate civil equivalent to Gideon v. Wainwright, the 1963 U.S. Supreme Court case whose decision provided for mandatory criminal representation for the poor.

The nascent interest in addressing the issue grew out of a 1994 ABA study that found that about four of every five civil legal needs for low-income families were not being met. Several subsequent state surveys found similar results. In one of the most recent surveys, in 2005, the national Legal Services Corp. determined that for every client who received service, a second client was turned away.

“I supervised an office that turned away people every day because we didn’t have the staff to take on even their most dire cases,” says Debra Gardner, a former legal aid attorney in Maryland who now serves as legal director of the Public Justice Center, a poverty rights advocacy group in Baltimore. She is also the coordinator of the National Coalition for a Right to Civil Counsel.

A white paper issued last year by the Brennan Center for Justice at the New York University School of Law stated that the problem is worsening “because of chronic funding shortages, state and federal restrictions, shortfalls in pro bono help, and a rollback of financial incentives for attorneys in private practice to bring critical cases."

In a speech in May at the ABA Equal Justice Conference, New Hampshire Chief Supreme Court Justice John Broder-ick said that the fast-growing number of civil litigants representing themselves in his state and across the country is a clear indication that more must be done to provide better opportunities for civil legal counsel, for both the indigent—perhaps through civil Gideon—and for those of moderate means.

“The self-represented are no longer just the poor, but their ranks now include more members of the middle class and a rising number of small businesses,” said Broderick, a member of the Conference of Chief Justices and a former board director of Legal Services Corp. “The vast majority of the self-represented enter our courthouses without lawyers because they can’t afford one, not because they don’t want or need one."

Greco was familiar with the growing number of such tales when he embraced the issue of the right to civil legal counsel in his presidential year, appointing the ABA Task Force on Access to Civil Justice. “I didn’t really use the term civil Gideon until much later,” he notes, “when it provided a quick snapshot to lawyers and judges of what we were doing."

What the task force did, with Greco’s support and advocacy, was to craft a resolution that spelled out the ABA’s affir-mation of the right to civil legal counsel for low-income citizens in areas of “adversarial proceedings where basic human needs are at stake.” The resolution noted that such needs include shelter, sustenance, safety, health, and child custody.

“The ABA resolution really was a watershed moment,” Gardner says. “It has gotten a lot of people talking and thinking."

Bar leaders lend support

As one of the first members of the National Coalition for a Right to Civil Counsel, Jayne Tyrrell, director of the Massa-chusetts IOLTA Committee, remembers when a handful of members used a Listserv as their primary means of communi-cation. Today, the five-year-old coalition includes more than 100 organizations and individuals in more than 30 states and the District of Columbia who talk monthly to share thoughts and ideas.

“There has been an increased awareness of people who aren’t being served. It’s been dramatic,” Tyrrell says. “All over the country, as a result of the [ABA] resolution, there have been bar leaders who have taken access to justice through civil Gideon as part of their platform."

One such president, Anthony Doniger of the Boston Bar Association, named Tyrrell vice chair of the BBA Task Force on Civil Right to Counsel in 2007. A month after the task force was announced, the voluntary Massachusetts Bar Associa-tion passed a resolution patterned after the ABA resolution, supporting civil Gideon in the state.

The BBA and MBA are working jointly on educational programs in the legal community, Tyrrell says. The BBA task force met in May to establish short- and long-term goals, she adds, with an eye toward promoting civil Gideon in family law, housing, juvenile proceedings, and immigration.

“These issues really require a great deal of collective thought,” says Edward McIntyre, president-elect of the Massa-chusetts bar. “We’re working [with the BBA] and looking for one or two pilot projects where the need is most critical for civil counsel."

In a similar cooperative effort, the Pennsylvania Bar Association and the Philadelphia Bar Association held a plenary session in April that featured Gardner and other civil legal service experts. Both bars have passed resolutions similar to the ABA resolution and have established committees exploring promotion of civil Gideon in the city and state.

“It’s a statewide commitment, and we’re encouraging [state] legislators to become sensitive to the question [of civil Gideon],” says Karen Forman, pro bono counsel at Saul Ewing in Philadelphia and chair of the Philadelphia bar’s civil Gideon committee. “We’re studying the question, and it’s in everybody’s forefront."

The New York State Bar Association, the largest voluntary bar in the country, made civil Gideon a state and regional issue with its first civil Gideon conference in March, attracting academic and bar leaders throughout New York, Connecticut, Penn-sylvania, and Massachusetts. Like the ABA and the Pennsylvania and Massachusetts bars, NYSBA passed its own resolu-tion in support of civil legal services for the poor.

As part of the bar’s public outreach effort, then-President Kathryn Grant Madigan was featured on 60-second radio spots throughout the state earlier this year, advocating the need for civil right to counsel. In the fall, the bar’s journal will be devoted completely to civil Gideon.

“The sense within the legal services community is that there seems to be this critical mass for civil Gideon,” Madigan says. “The bar is really stepping up."

Members of the North Carolina Bar Association got a sampling of the need for civil legal services on April 4 when the bar’s “4ALL” campaign held a daylong, statewide Public Service Day, which featured more than 500 lawyer volunteers answering about 7,000 legal questions. The service day was the culmination of a year full of events and programs.

“One of the first things people said to the attorneys was, ‘We’re so thankful you’re doing this,’ ” says Janet Ward Black, now immediate past president of the NCBA. “I think people don’t have an understanding of poverty unless they see it themselves."

The yearlong aim of 4ALL was a four-pronged effort to raise the public’s—and attorneys’—awareness of the shortage of civil legal services for poor North Carolinians, Black says. The four principles were: educate, legislate, donate, and par-ticipate.

As part of the attorney education component of the campaign, a seven-minute video detailing the work and importance of Legal Aid in North Carolina was played before every CLE event over the last year, Black says, reaching some 10,000 NCBA members.

Thanks to the program’s popularity among the public and lawyers, the NCBA’s 4ALL task force will continue to address civil legal service issues, and the Statewide Service Day has been scheduled again for next April 4. “We will continue to raise funds for operational support and endowment of legal services,” Black says. “There needs to be somebody there answering questions."

Bar Association of San Francisco President Jim Donato has also made civil Gideon part of his presidential year initiatives in 2008. The topic was featured in a recent issue of the bar’s magazine, and Donato has pledged to work with the State Bar of California to find a civil Gideon solution in the state.

The concept of improving civil legal access for the poor is just getting off the ground in Texas, according to Andrew Strong, who chairs the Legal Services to the Poor in Civil Matters Committee at the State Bar of Texas.

“There’s no real understanding of where the gaps are” in civil legal service, Strong says. “We want to show where the needs are. We can’t take a political position [as a unified bar], but we can present the data.” To that end, the committee is planning a roundtable discussion with experts on civil counsel for the poor, as well as with the “people on the ground—the service providers,” he adds, to get a better picture of the issue in Texas.

Trying to open the door

While many bar associations focus their efforts on education and awareness of the need for civil legal services for the poor, states such as Maryland, Washington, Wisconsin, and California are also exploring legal cases and amicus briefs as a way to move civil Gideon forward. Thus far, such efforts haven’t met with success, other than in raising awareness of the issue.

In 2003, Maryland’s Supreme Court was just one vote shy of creating the first state civil Gideon ruling in Frase v. Barn-hart, a child custody case brought by the Public Justice Center’s Debra Gardner. She and others in Maryland continue to look for another similar case to bring to the court.

“We hope there would be a national consensus in these sorts of cases,” she says. “To get there, we need to achieve some of those advancements in the states—states where there are people working on civil legal services for the poor."

Last year, the Washington State Bar Association filed an amicus brief in support of Brenda King, a woman with a ninth-grade education who lost custody of her three children while representing herself in a divorce from her husband, who had counsel. Despite the supporting brief from the WSBA and pro bono legal representation, King lost her appeal.

Twice in the last few years, John Ebbott of Legal Aid of Wisconsin has made unsuccessful attempts to get the state courts to consider cases that could open the door to civil legal counsel.

Rather than see a civil Gideon case head to the U.S. Supreme Court, Greco and others would like to see a state high court tackle the issue—and eventually set a legal precedent. “A judicial decision would make other states take notice,” Greco says. “With a court victory, other states would follow in a domino effect."

Saving money and time

Despite the decisiveness that could come from a court victory, Greco and others know it could still be several years before the concept of civil Gideon takes root in many states. That is where pilot projects and an emphasis on pro bono support and bar association and foundation activity can play roles in gaining public and political support for the civil right to counsel.

In New York City, the city council is considering legislation backed by the state and city bars to have the city provide lawyers for low-income residents 62 and over who are facing eviction. NYSBA’s Madigan has been supportive of the measure.

“They’ve shown that for every dollar spent on pre-eviction legal services, the city will save $4” that won’t be spent on other city services, such as housing the homeless, Madigan notes. “By paying for preventive legal services now, you save money."

When she oversaw landlord-tenant disputes in Philadelphia, city Judge Lisa Rau saw that at least half of the tenants and landlords were self-represented because they could not afford lawyers—and that bogged down the system. “We’re expecting them to know the rules in court. They don’t even know what pro se means,” she says. “It can be exhausting for a judge."

So Rau began working with several veteran landlord-tenant attorneys to develop a program that better explained court procedures and terms—including all Latin phrases. The result? “It was exciting to be in court,” she says. “We had fewer and fewer cases that had to be continued."

Rau says her experiences and those of other judges who regularly deal with pro se litigants make it vital for the judici-ary to participate in finding better civil legal service solutions for the poor, which could include both civil Gideon and better information for pro se litigants.

“We have to make our courts accessible to everyone,” she says. “Whenever you get the bar and the bench together, that’s when you can make things happen."

Not a cure-all

While civil Gideon efforts move ahead in hopes of increased access to justice for the poor, hurdles and challenges re-main. One of the thorniest issues is funding. While many legislators at varying levels across the country have expressed some support for the concept of civil Gideon, paying for it is another matter.

“We’re in a deficit budget [in Massachusetts], and money is hard to come by,” McIntyre says. “Perhaps there is a way we can provide people access to the courts without using a lawyer."

In Wisconsin, Ebbott has conservatively estimated it would take an additional $40 million to $50 million a year in the state budget to provide adequate civil legal services for the poor.

Pro bono is also a key component of any civil Gideon effort, and as McIntyre points out, “many lawyers just don’t have the time,” because of increasing work commitments, large student loans, and family and home commitments.

Chicago Bar Foundation Executive Director Robert Glaves still has many of the same reservations toward civil Gideon—at least as a total solution—that he expressed in 2006 at the time the ABA resolution was introduced.

“Who does the [eligibility] screening? That’s a big decision for anyone to make,” he says. “And the demand for services far outstrips the supply."

In his memo to ABA delegates before the vote on the resolution, Glaves indicated that the Chicago Bar Association and Chicago Bar Foundation supported it because of the “broad principle” at hand—the need to increase access to civil justice for the poor—but had some serious concerns regarding how civil Gideon would be implemented and whether it would be seen as a total solution rather than one piece of the puzzle.

Screening was one of those concerns; another was the CBA and CBF’s belief that the overall solution requires a mul-titiered pro bono and legal aid delivery system, in which civil Gideon can play a part but shouldn’t be seen as a cure-all. Further, Glaves wrote, that complex system suffers “a chronic lack of sufficient resources,” and “the only way to solve this problem is to develop adequate resources so that each of the multiple tiers of this system is fully funded."

Provided civil Gideon cases were carefully screened for merit and the principle were seen as just one of many meas-ures to improve access to justice, Glaves wrote, the CBA and CBF supported the resolution and believed that “a more broadly available appointed counsel system could significantly improve access to justice in civil cases."

Education is key

Whatever they think of civil Gideon itself, Glaves and others readily agree that bar associations and foundations have a vital role to play in advancing the discussion on how best to provide more civil legal services to the poor.

Forman says one such area is increased CLE, with the aim of making more lawyers aware of the issue and what they can do to help. In Philadelphia, she says, concerns among lawyers who were not familiar with family law issues have been eased by bar-provided training to help such lawyers take on different pro bono initiatives.

Still more needs to be done with public awareness, Gardner adds. Surveys have shown that many people—perhaps influenced by television shows such as Law & Order—don’t distinguish between civil and criminal matters and believe they already have access to free civil representation. Bar leaders such as Doniger, Donato, Madigan, and McIntyre—who have made civil Gideon a priority in their leadership initiatives and have led legislative and public outreach ef-forts—hope to change some of those misperceptions at the same time that they work toward solutions.

“Certainly, it’s critical for bar associations to have a place in educating people,” Greco says. “Lawyers are critical in ad-vancing this, both individually and collectively. That has to happen for this to continue to advance."

Greco and others are optimistic that the time is right for the dialogue, the court cases, and the pilot projects to continue, and say much has been accomplished in the last decade.

“I’m excited about the momentum around the country,” Gardner says. “Back in 2000, we were told that this was pie-in-the-sky and really unattainable. Now, it’s attainable.” BL

 

SPEAKING OF FUNDING …

There may be some disagreement among bar leaders regarding whether civil Gideon can effectively close the gaps in access to civil justice, but when it comes to increased funding for legal services, leaders seem to be unanimous.

This spring, the presidents of all 50 state bar associations, the District of Columbia, and two U.S. territories sent a letter asking Congress to respond to tough economic times and “the current justice gap in America” by appropriating at least $400 million for Legal Services Corp. The appropriations act currently in effect includes $350.5 million for LSC.

In the letter, which was sent to the chairs of the House and Senate subcommittees tasked with setting LSC fund-ing, the bar presidents urged Congress to put the funding increase in the 2009 Commerce, Justice, Science and Re-lated Agencies bill and noted that if the budget were funded at 1995 levels adjusted for inflation, it would total some $176 million more than the $400 million request.

The letter was also signed onto by the National Conference of Bar Presidents and the National Association of Bar Executives. The letter to the House is at www.abanet.org/poladv/abaday08/resources/StateBarToHouse.pdf; the letter to the Senate is at www.abanet.org/poladv/abaday08/resources/StateBartoSenate.pdf. BL

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