In “Family law not for amateurs” (March 5, 2007), lawyer Paul J. Martinek used an op/ed piece in the Boston Herald to introduce the Massachusetts public to the Civil Gideon concept, focusing on its relevance to family court matters. Martinek is the editor of Massachusetts Law Brief.
- “Civil Gideon” is the right — and the name of the movement to obtain the constitutional or legislative right — of low-income individuals to the appointment of a lawyer when basic human needs (such as those involving shelter, sustenance, safety, health or child custody) are at stake in a court proceeding. The name comes from the analogy to the right to counsel in criminal cases, which was announced by the U.S. Supreme Court in Gideon v. Wainwright. [see our prior post on a pilot project in California]
- On August 8, 2006, the House of Delegates of the American Bar Association unanimously passed the following Civil Gideon Resolution: “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.” (emphasis added) See “A Civil Law Gideon,” ABA Journal, Aug 8, 2006 (via Trial Ad Notes)
Warning: I’m about to upset some of my usual allies: I agree with the fundamental — and I hope uncontroversial — assertion made by those in the Civil Gideon movement that our government must ensure fair and effective access to justice for all, including the poor, and especially in matters related to basic needs and rights. But, “Family law not for amateurs” underscores my growing discomfort with the notion that access to justice can best be achieved in our society by giving publicly-funded lawyers to low-income Americans in most of the circumstances in which they are likely to find themselves in court.
Like the proponents of the ABA’s Civil Gideon Resolution (e.g., here and here) Martinek argues that no lawyerless litigant can get a fair hearing when the other side has a lawyer — and that having a lawyer will ensure such fairness. Although he mentions that there are “some practical downsides” with Civil Gideon (such as its “staggering” cost, difficulties telling who is eligible, and disincentives to settle when you have a free lawyer), Martinek concludes that “something” must be done and:
“The issues that are litigated in family courts – especially those involving the right to see and help raise one’s children – are too important to be dealt with by emotionally overwhelmed mothers and fathers with no training in the law.”
I believe we need to ask whether it makes more sense to increase the importance of lawyers in family and housing courts or to work much harder to structure the judicial system so that most individuals can achieve fair and effective justice without lawyers. (see our About page) Based on my experience as a self-help law proponent, a legal ethics watchdog, and an observer of the legal profession’s attitude toward access to justice, and after spending a decade in a law practice focused on Family Court, here are some of the problems that I have with the lawyers-for-all-style Civil Gideon:
- It 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.
- 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)
- 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.)
- It assumes that Assigned Counsel will competently and diligently represent their low income client (see discussion below).
- 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.]
- 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.
Before you buy into the proposition that publicly-funded counsel — which will, in most communities, mean Assigned Counsel, who are lawyers in private practice who ask to receive Civil Gideon clients from the courts — please take a look at two postings that I wrote at f/k/a and its predecessor ethicalEsq. In the post Too many assigned counsel just don’t give a damn (Feb. 3, 2004), for example, I pointed to numerous assigned counsel scandals, and quoted a 2002 New York study, which found:
“Notwithstanding the valiant efforts of many lawyers, too many of New York City’s poor are receiving thoroughly inadequate legal representation in such important court proceedings as those relating to child custody and visitation, child abuse and neglect, termination of parental rights, domestic violence, and criminal prosecution, often with serious adverse consequences.”
“The outmoded, underfunded, overburdened, and organizationally chaotic system in operation today dishonors New York’s long-standing commitment to an individual’s right to meaningful and effective representation, often with devastating effects on the thousands of children and indigent adults who pass through that system each year.”
In addition, I noted a 1997 ABA study discovered that:
- “In child abuse and neglect cases, the legal representation of parents, children, and child protection agencies is often seriously deficient,” with many lawyers apparently not understanding that ”diligent representation” included obligations such as “to meet with clients well in advance of each substantive hearing, to investigate disputed facts, and to be present in court.” Take a look here for more studies with similar sad conclusions.
In the post, I acknowledge that lack of money is an important source of the problem, and that there are both excellent and uninspired-but-competent lawyers who act as assigned counsel. Nonetheless, I declared: this much seems clear to me after years observing and participating in the assigned counsel system:
- many assigned counsel make no meaningful effort to provide meaningful, diligent representation
- a very large percentage take assigned cases solely because they have no other sources for clients
- they have no other sources because they do not have the respect of their colleagues, judges, or former clients
- they are unlikely to work harder if pay levels are increased, and may even do less per case
- local bar associations often oppose creating better-organized, and more effective institutional entities to provide legal services to the poor, because private practice attorneys fear losing the work, despite all their cries of being scandalously underpayed
- disciplinary committees totally avoid these issues of competence and diligence
- the mainstream bar holds its nose and pretends the ne’er do wells don’t exist
In conclusion, I asked: What percentage of assigned counsel fit my very negative picture? Of course, I can’t say for sure, but it’s certainly at least 20%, and probably a significantly larger figure. Too damn many of them.
Similarly, in No Bull Lawyers Need CLE (Continuing Legal Education), Jan. 4, 2004, I quoted the findings by an ABA working group concerning the deficient representation received by parties in many family court matters. In response to the study, in February, 1997, American Bar Association President N. Lee Cooper issued his Challenge to State and Local Bar Organizations on “Improving Legal Representation in Cases Involving Children, Youth and Families.” Cooper called upon state and local bar leaders to sign a pledge that:
“We will work to establish clear standards for attorneys in the representation of children, parents, and child protection agencies in child abuse and neglect cases (and related termination of parental rights and adoption cases), including clarifying basic ethical obligations of diligent representation by attorneys in these cases, such as obligations to meet with clients well in advance of each substantive hearing, to investigate disputed facts, and to be present in court.”