Vol. 63, No. 4 | April 2006
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Trumpeting Civil Gideon:
An Idea Whose Time Has Come?

Despite precedents grounded in English common law, the Magna Carta, and contemporary European human rights law, the right to counsel in civil cases has yet to be fully established in American law.  While many challenges to implementing such a right remain, the costs of its absence, to both litigants and the justice system, argue powerfully in its favor.

By Mary Deutsch Schneider

Imagine being a domestic violence victim after a brutal beating.  Counsel has been appointed to defend your abuser against criminal charges, but you cannot get counsel to end your relationship and protect yourself and your children from future abuse.  Or consider: when someone breaks into a home and steals an expensive television set, that individual is entitled to attorney representation; by contrast, a poor person whose housing is wrongfully being taken from him is not entitled to counsel, even though the result may be homelessness for an entire family. Contemplate the confusion of a disabled Minnesota man living in a substandard converted motel unit, unable to pay past-due monthly rent.  Police, brandishing the innkeeper statute, threatened to arrest and jail him.  If they had, at least he would have had shelter and an attorney.  When those law enforcement officers were informed the matter was a civil landlord-tenant case, however, he was evicted without either.

Most Americans believe, erroneously, that indigent people already have a guaranteed right to counsel, regardless of whether an action is civil or criminal. Sixty-nine percent of Californians surveyed, and 79 percent of citizens in a national survey responded “yes” when asked whether a poor respondent would have a right to free counsel if sued in a civil court.1  In both polls, this was the question about constitutional guarantees that was most often answered incorrectly.  Another study showed that although 89 percent of the public polled agreed that legal help in civil matters should be provided for low-income people, only a third thought that low-income people have a very difficult time getting that legal help.2

Serious Unmet Legal Needs

The continuing need for civil legal assistance for low-income Americans remains, unfortunately, massive.  With the establishment of the Legal Services Corporation (LSC) in 1974, there was a common belief that government had recognized a duty to provide for the civil legal needs of the poor. The mission of LSC is to provide equal access to justice for low-income people.  It currently provides funds to 140 independent local legal aid programs throughout the nation, five of those in Minnesota. The promise of equal justice, however, has proved greater than the reality.  A recent LSC study showed at least 80 percent of the civil legal needs of the poor are not being met.3  “There is a serious justice gap in America,” said LSC President Helaine M. Barnett; “stagnant federal funding and an increased poverty population have served to increase the unmet demand.” The LSC “Unable to Serve” study, the first comprehensive national statistical study ever undertaken, established that 50 percent of the potential clients requesting assistance from an LSC grantee were turned away for lack of resources, according to Barnett. Far more potential clients never find their way to a legal services office.  There is one lawyer providing personal civil legal services for every 525 people in the general population, according to the study, but there is only one legal aid lawyer (including all sources of funding) for every 6,861 low-income people in the United States.

Early Right to Civil Counsel

The notion that poor people should have access to justice is not a new one.  The Magna Carta, in 1215, assured that “to no one will we sell, to no one will we refuse or delay, right or justice … .” The rule of English common law in place when the United States Constitution was signed in the late 18th century was that parties in civil cases and persons accused of misdemeanors were entitled to the full assistance of counsel.  The colonies expanded that to include representation in the most serious offenses.

Elihu Root, a lawyer who served as a diplomat, a United States Senator, Secretary of State, and president of the Carnegie Foundation in the late 19th and early 20th centuries affirmed government’s obligation to secure justice for the poor when he wrote:

No one … doubts that it is the proper function of government to secure justice.  In a broad sense, that is the chief thing for which government is organized.  Nor can anyone question that the highest obligation of government is to secure justice for those who, because they are poor, and weak, and friendless, find it hard to maintain their own rights.4 

Although nearly 800 years have passed since the Magna Carta, and 87 since Root’s comments, there is still no established right to civil counsel in the U.S. That is not true elsewhere in the world.

Right to Counsel Internationally

Among western democracies, the United States stands nearly alone in failing to acknowledge a right to counsel in civil cases.  Countries such as England, France, Germany, Norway, Sweden, Denmark, Belgium, Netherlands, Austria, Spain, Italy, Portugal, Switzerland, New Zealand, the Australian states, and Canada provide poor people civil counsel in litigation, either through statute, by constitution, or both.5  “The United States is the only major western nation that does not provide a right to counsel in civil matters.”6

Funding for legal services is radically different in the U.S., too.  The annual per capita government expenditure for civil legal assistance in the United States is $2.25, while the equivalent figure for England is $32.00.7  According to Justice Earl Johnson Jr. of the California Court of Appeals, if the United States were to match the French and German approach, we would be spending about $1.6 billion annually on legal services for the poor; if we followed the lead of Tony Blair’s government, we would be spending about $10 billion annually. In contrast, federal funding for LSC’s FY 2005 appropriation was originally $335.3 million; that amount was subsequently reduced to $330.8 million by two across-the-board rescissions.

While the U.S. Congress struggled with funding, last year marked the 25th anniversary of Airey v. Ireland8 which established the right to civil counsel in Europe.  Airey was an indigent woman seeking a legal separation, support, and the settlement of property issues.  Ireland was almost unique in Europe in 1979 in having no established legal aid program, so when Airey asked the court for assistance, she was denied. The Irish government contended that it should not be responsible, since the matter did not arise from governmental action and because it was not preventing Airey from appearing to handle her own case.

The European Court of Human Rights did not agree.  The court was interpreting and enforcing the European Convention on Human Rights and Fundamental Freedoms, which is similar to our Bill of Rights. It held a country cannot simply remain passive on fair trial requirements because it did not cause the problem, but rather has an affirmative obligation which necessitates positive action. In deciding that effective access to counsel is needed for a fair trial in the Airey case, the court considered factors similar to those justifying a right to counsel in Gideon v. Wainwright, 372 U.S. 335 (1963), the landmark case that established the right to criminal counsel in the U.S.

Right to Criminal Counsel

Clarence Gideon, poor and poorly educated, was charged with breaking into and entering a pool hall to commit a misdemeanor, which amounted to a felony in Florida. Gideon requested counsel, but Florida appointed attorneys only in capital offense cases.  After being convicted and sentenced to five years in prison, Gideon brought a habeas corpus petition on the grounds that the right to counsel was “guaranteed by the Constitution and the Bill of Rights by the United States Government.” Although Florida denied his petition, Gideon wrote a letter to the Supreme Court.  Treating the issue as properly before it, the Court considered whether it should overturn Betts v. Brady, 316 U.S. 455 (1942). Betts held appointment of counsel was not a fundamental right essential for a fair trial, so a refusal to appoint counsel for an indigent defendant charged with a felony did not necessarily violate the Due Process Clause of the 14th Amendment.

Minnesotans were formidable in urging the Gideon Court to overrule Betts. Walter Mondale, Minnesota Attorney General at the time, took a lead role in submitting an amicus brief supporting Gideon’s right to counsel on behalf of the attorneys general of 22 states. Professor Yale Kamisar, a distinguished criminal law scholar and University of Minnesota Law School professor from 1957-64, originally informed Mondale of the effort to file an amicus brief on Gideon’s behalf.  “I believe he told me that Eddie McCormack, the Massachusetts Attorney General, was developing a brief at the Harvard Law School and that he was involved. I agreed to sign on and help solicit support from other attorneys general across the country,” Mondale said. Minnesotans were generally supportive. “Because Minnesota had long had a statute providing legal counsel in indigent felony cases, as had many other states, I could argue that I was simply implementing a good Minnesota idea that should be national policy. I got some guff but I believe the public accepted what I had done,” Mondale said.  “I was glad to have been involved and I was very heartened by the Supreme Court case,” said Mondale.  “It reminds me of the wonderful Court that then occupied our highest bench.”

Writings by Kamisar, critical of Betts, were raised in oral argument by Gideon’s attorney, Abe Fortas, and cited by the Gideon Court as it extended the right to counsel to indigent defendants in state courts through the 14th Amendment. Justice Hugo Black, speaking for the Court, wrote:

Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person hailed 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.

Limited Right to Civil Counsel

The need for counsel was not as obvious in the civil context, however, in Lassiter v. North Carolina, 452 U.S. 18 (1981), decided 18 years later.  A 5-4 decision in a parental status termination case, Lassiter set out a presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.  Three elements are to be evaluated and their weight set against the presumption in deciding what due process requires:  the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions.  Dissenters took issue with the “presumption” against a right to counsel where indigent litigants have something other than their physical liberty at stake, e.g., their family rights and obligations, their livelihood, their shelter, their property, etc.  Lassiter, which involved the government taking control of Lassiter’s children, has been both criticized and avoided for its unworkable test. 

Tracey, a low-income Minnesota mother, can empathize with Lassiter.  Her daughters were removed from her home and placed with their father, over 1,500 miles away, after sexual abuse allegations which arose, she says, because their stepfather grounded the girls. Tracey’s husband was charged and acquitted, but Dad refused to return the girls, and brought a custody action outside Minnesota. Tracey tried to get legal aid in both states, but Minnesota attorneys could not represent her elsewhere, and the other state did not have sufficient resources, its staff said. Tracey pleaded with the court to appoint counsel for her, but was told the court does not do that in civil cases.  Tracey said she does not have the knowledge, education, or training to represent herself, “especially when the police and social services were involved and may come in to testify.”  Because of the distance and cost involved, she has not been with the girls, or a young son who was not involved in the allegations, in over a year.

States May Afford Greater Right

For those pursuing state litigation involving the need for appointed civil counsel, Lassiter may not prove a barrier.  In most states there are statutory or constitutional provisions that arguably provide relief.  States may consider that federal constitutional rules represent a floor rather than a ceiling.  Many states already recognize rights to civil counsel in involuntary commitment proceedings, paternity actions, juvenile delinquency and dependency matters, civil support contempt cases, and in parental rights termination. As with Gideon, where up to 45 states provided some form of court-appointed criminal counsel at the time the case was heard, a future landmark Supreme Court case may articulate what is already common practice at the state level.

State courts are often finding it appropriate to appoint civil counsel in a variety of ways. They may interpret their own statutory and constitutional provisions more expansively than Lassiter.  They may also use their administrative powers to set out criteria for court appointment, finding a broad right to appointed counsel is essential to the proper functioning of the court system.  Others look at the needs of a party and determine whether communication barriers, disability, or age may warrant or require appointment.  Nor would it be surprising for a court to find that a “threat to liberty,” which triggers a right to counsel, is much more expansive than incarceration.  Civil cases such as contempt actions also provide some crossover since deprivation of physical liberty is often a threat in such cases.  Some states even have the ability to base determinations on common law principles.

The Maryland case of Frase v. Barnhart,9 an action involving custody, presented access to counsel issues under the state constitution. That constitution has an “open courts” provision, similar to many state constitutions, including Minnesota’s. Maryland, as a former colony, could also look to common law and an English statute in force in 1776 that provided for indigent counsel in civil cases.  The Maryland Court of Appeals narrowly avoided making a determination on a right to civil counsel, finding the claim moot by a 4-3 decision. Three judges urged the court to hold that “in cases involving the fundamental right of parents to parent their children, especially when the parent is a defendant and not a plaintiff, counsel should be provided for those parents who lack independent means to retain counsel.” 

In a concurring opinion, Justice Cathell said:

While I certainly cannot speak for individual judges of this court, it is my belief that there is no judge on this court that believes in his or her heart or mind, that justice is equal between the poor and the rich — even in the tradition-hallowed halls of our appellate courts.  Each of us knows, I believe, that an unrepresented parent involved in the appellate process in respect to custody, visitation, or parental termination issues, when opposed by competent counsel for the opposing party (sometimes opposed by an organ of the state with its legions of lawyers), is normally not afforded the equal protection of the laws, i.e., an equal access to justice to which all citizens are entitled…

Actions are pending in other states and more may be on the way. Civil law has not had its Gideon case yet, but there is movement in that direction. 

National Civil Gideon Movement

Individual attorneys and judges have been working in the right to civil counsel arena for decades. Some places, such as Maryland and Washington, have organized regional or statewide projects and coalitions. Washington State is home to a strong access-to-justice project with many facets.  Advocates from the private bar work with legal services programs and the state’s three law schools toward judicial recognition of a state constitutional right to counsel.  The Public Justice Center in Baltimore started its Civil Gideon campaign in 2000 when it began a right-to-counsel program as part of its Appellate Advocacy Project.  Advocates elsewhere are demonstrating strong interest.

Two panel discussions on the subject at the December 2003 annual conference of the National Legal Aid and Defender Association in Seattle drew unexpected overflow crowds, and from that a national coalition was born.  Maryland’s Public Justice Center in January 2004 began hosting a national conference call of advocates collaborating on issues and approaches. In this national Civil Gideon discussion group, private and public attorneys, and representatives of law schools, state bar associations, state access to justice commissions, and national policy centers do information-sharing, training, networking, and research assistance, while coordinating with, and supporting, litigation and special projects. There are currently about 120 advocates from over 30 states.

ABA Support

The American Bar Association (ABA) has long held society’s obligation to provide equal access to justice as a core value.  It has also recognized the legal profession’s special obligation to advance the national commitment to provide that equal justice.  In 1965 the ABA endorsed federal funding of legal services for the poor, and in the 1970s the ABA was prominently involved in the creation of Legal Services Corporation.  In the 1980s, the ABA was a strong voice in the struggle to obtain and maintain adequate federal funding for legal services.  In its amicus brief in Lassiter, the ABA favored the appointment of counsel for indigent parents in termination proceedings, urging:

Skilled counsel is needed to execute basic advocacy functions:  to delineate the issues, investigate and conduct discovery, present factual contentions in an orderly manner, cross-examine witnesses, make objections and preserve a record for appeal … Pro se litigants cannot adequately perform any of these tasks.

Even before assuming the helm of the ABA, current President Michael Greco articulated his concern for access to justice by the poor: 

No one in our nation should have to go unassisted into court when the integrity of his or her family is at stake, when he or she and their children may be thrown out of their home, when they may suffer other grievous harm at the hands of a system they cannot navigate or even understand on their own.10

Since taking office President Greco has appointed the ABA Task Force on Access to Civil Justice to help expand access to justice in communities throughout America. Recalling the eloquent promise above the door to the United States Supreme Court in his remarks announcing the task force, Greco said:

It is unacceptable that 70 to 80 percent of the legal needs of lower-income Americans go unaddressed year after year … I will also ask the task force to consider an idea whose time has come — the idea of a defined right to counsel in certain serious, civil cases: those that threaten the integrity of one’s family, or housing, or health.  It is time to fulfill the promise of ‘Equal Justice for All.’

The Future

There are certainly many major challenges ahead for a successful Civil Gideon effort. Who should get counsel and in what types of cases, how counsel would be funded, how much it would cost, where funding would come from, who should provide representation and how appointments should be made and administered — these are a few of the hurdles. But change sometimes comes in small steps, making the big leaps less necessary, less traumatic.

Mondale, a big supporter of civil legal services since the Office of Equal Opportunity poverty law programs that preceded LSC, admits that while the Gideon principle should perhaps be applied to civil cases, in today’s environment he is skeptical of success, at least at the federal level. “Nevertheless, the disheartening and tragic consequences of undefended civil litigants should be made far better known than it is today.  Sometimes, I am sure, the distinction between criminal and civil law can seem to be some kind of legal construct unrelated to real circumstances,” Mondale said.

Over 20 years ago California appellate Justice Earl Johnson wrote that he then had difficulty telling whether the right to counsel in civil cases, which he described as glimmering on the horizon, “is a reality marching inexorably toward us, or only a mirage, forever dangling before the poor citizens of this land.”11 Paul Marvy of the Committee for Indigent Representation and Civil Legal Equality, in Seattle, is more positive:

Civil Gideon’s time will come.  The individual and social costs of losing housing, healthcare, and family are enormous — and often far greater than the threat of incarceration.  But it’s the cost to our justice system if we deny counsel that will eventually make Civil Gideon a reality.  “‘Justice for all” was never meant to be “justice for all who can afford it.”

Notes
1 California State Bar Report, “Bar Survey Reveals Widespread Legal Illiteracy,” 11 Cal. Lawyer 68, 69 (1991); Association of Trial Lawyers of America, 1991-1992 Desk Reference Supplement, commemorating the 200th anniversary of the signing of the Bill of Rights (Karen D. Horsley et al., eds., 1991)

2 Belden Russonello & Stewart, A National Message for Civil Legal Aid, 3 (2000).

3 Legal Services Corporation, Documenting the Justice Gap in America:  The Current Unmet Civil Legal Needs of Low-income Americans (2005).

4 Elihu Root, “Forward,” in Reginald Heber Smith, Justice and the Poor:  A Study of the Present Denial of Justice to the Poor and of the Agencies Making More Equal Their Position Before the Law, with Particular Reference to Legal Aid Work in the United States (1919).

5 Joan Grace Ritchey, “Limits on Justice: The United States’ Failure to Recognize a Right to Counsel in Civil Litigation,” 79 Wash. U. L.Q. 317, 331-332 (2001).

6 Earl Johnson, Jr., “The Right to Counsel in Civil Cases: An International Perspective,” 19 Loy. L.A.L. Rev. 341, 352-353 (1985).

7 Allen W. Houseman & Linda E. Perle, Securing Equal Justice for All:  A Brief History of Civil Legal Assistance in the United States, 43 (2003).  See also, Earl Johnson, Jr., “Equal Access to Justice: Comparing Access to Justice in the United States and Other Industrial Democracies,” 24 Fordham Int’l L.J. (2000).

8 Airey v. Ireland, 2 Eur. Ct. HR Rep. 305 (1979).

9 Frase v. Barnhart, 379 Md. 100, 141 (2003).

10 Michael S. Greco, Speech to the Fellows of the Alabama Law Foundation Annual Dinner (Jan. 28, 2005).

11 Earl Johnson Jr., “The Right to Counsel in Civil Cases:  An International Perspective,” 19 Loy. L.A.L. Rev. 341 (1985).  See also Johnson & Elizabeth Schwartz, “Beyond Payne:  The Case for a Legally Enforceable Right to Representation in Civil Cases for Indigent California Litigants,” 11 Loy. L.A.L. Rev. 249 (1978).


MARY SCHNEIDER has been the executive director of Legal Services of Northwest Minnesota for 15 years.  She received her J.D. from Emory University in Atlanta, and her L.L.M from the Irish Centre for Human Rights at the National University of Ireland Law School in Galway, where she was a Bush Foundation Leadership Fellow. 


Civil Gideon CLE

Whether an indigent person should have the right to appointed counsel in a civil case is a question that is gaining national attention. Minnesota attorneys will have an opportunity to examine Civil Gideon concepts June 23 when California Court of Appeals Justice Earl Johnson Jr., a longstanding authority on access to civil counsel and a leading author on Civil Gideon issues, offers continuing legal education on the topic at the MSBA Convention in Brainerd.  Justice Johnson will be returning to Minnesota, where he spent time during his youth, to talk about the need for representation and how other countries, unlike the United States, have established a civil right to counsel.  “Poor people have access to the American courts in the same sense that the Christians had access to the lions when they were dragged into a Roman arena,” Justice Johnson, has said.