Transcript Welcome! [www.pabar.org]

Civil Gideon
2012 PBA Pro Bono Conference
•
•
Term refers to a growing national movement to
explore strategies to provide legal counsel, as a
matter of right and at public expense, to lowincome persons in civil legal proceedings where
basic human needs are at stake.
Takes its name from Gideon v. Wainright, 352 U.S.
335 (1963) (establishing a right to counsel in
criminal cases)
1981 Case
•
In 1981, the Supreme Court held in
Lassiter v. Department of Social
Services that while courts could
appoint counsel on a “case by case”
basis in cases involving termination
of parental rights, there is no
categorical right to counsel under
the federal constitution when
parents are in danger of having their
parental rights terminated. Then,
going further, the Supreme Court
created a presumption against
appointing counsel in any kind of
civil case in which physical liberty is
not at risk
2011 Case
•
The Supreme Court unanimously held
in Turner v. Rogers that a “deadbeat”
father has no automatic due process
right to counsel in a civil contempt
proceeding, even when he is facing
jail time for failing to pay child
support. However, Justice Stephen
Breyer’s decision for the Court, joined
by four other Justices, held that the
Fourteenth Amendment does provide
“substitute procedural safeguards” to
parents who have not paid child
support. For Failing to provide same,
the five Justice majority vacated the
civil contempt charge against him.
• Movement was first officially recognized in a 2006 ABA
Resolution, which stated in part:
− 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.
• After extensive additional research and evaluation, the ABA in
August 2010 reaffirmed its commitment to a Civil Gideon right to
counsel by adopting the:
− ABA Model Access to Justice Act, and the
− ABA Access to Justice Statement of Principles.
− The Model Act and the Statement of Principles affirm that the
scope and particular form of Civil Gideon should be determined
by state and local jurisdictions.
Study
• In 2007, the Pennsylvania Bar Association’s Legal Services
to the Public Committee conducted a study (“Study”) and
proposed that the Pennsylvania Bar Association adopt a
resolution endorsing the concept of Civil Gideon in principle.
• The Study recognized that adoption of such a resolution
was only the first step in a multi-layered, cumulative effort to
expand access to justice.
Study
• The Pennsylvania Bar Association then accepted the Study
and recommendation of the Legal Services to the Public
Committee, and endorsed a Civil Gideon Resolution (“PBA
Resolution”) stating in part:
− RESOLVED, That the Pennsylvania Bar Association
urges the Commonwealth of Pennsylvania to provide
legal services as a matter of right 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.
Statistics
• Legal aid professionals estimate that only 1 in 5 (20%) truly
needy people in the Commonwealth with civil legal aid
matters ever receive the assistance of a lawyer, whether
from a legal aid provider or through pro bono efforts
• More than half (over 50%) of the poor across the
Commonwealth who make it to a legal aid office are turned
away because of the limited resources, both public and pro
bono, available to serve the neediest.
PBA Resolution Is Just the Start
• Does not define which cases would be included
• Does not address many questions of implementation
• Expects that the right to counsel would be expanded in an
incremental fashion, prioritizing those most basic human
needs which are greatest
• Would expand upon the existing multi-tiered system of legal
aid and voluntary pro bono, incorporating this strong
foundation and building upon it
National Statistics
• Outlines basic findings relating to the state of access to
justice in Pennsylvania, and current limitations on access to
counsel.
• Provides a survey list, by substantive legal area, of those
states in which some form of statutory right to counsel in
civil proceedings currently exists.
• Identifies twenty different substantive areas from custody
and domestic violence to housing discrimination and school
attendance where some right to counsel has been
recognized.
National Statistics
• More than 35 states and the District of Columbia have
some form of statutory civil right to counsel in one or more
specific areas.
• There is a patchwork quilt of areas in which a civil right to
counsel is provided.
• The most common areas in which a statutory right exists
are custody and neglect and abuse (30 states).
• The least common areas are individuals under disability to
sue; SJIS petitions; release of mental health records, civil
rights claims and school attendance (1 state each).
• Currently, Pennsylvania provides a right to court-appointed
counsel for indigent people in a limited number of civil
proceedings, which include child dependency cases,
termination of parental rights, paternity, civil commitment
proceedings for sexually violent delinquent children, and
involuntary commitment pursuant to the Mental Health
Procedures Act. The creation of the right to counsel in these
cases was achieved through litigation or legislative action.
• State Access to Justice Commissions, state and municipal
bar associations and Civil Gideon working groups across
the country are studying not only the unmet need for
representation, but the impact of the recent economic
downturn on access to legal services.
• The worse recession since the Great Depression has
greatly increased the number of persons facing adversarial
legal proceedings involving basic human needs who need,
but cannot afford, counsel.
• Simultaneously, the same financial crisis that has led to the
loss of jobs and increased legal need has dramatically
reduced the funds available to legal services to represent
the poor.
– Agencies relying on Interest on Lawyer Trust Accounts
(IOLTA) revenue for staffing and operations have faced
dramatic cutbacks in the wake of lower interest rates
– Support from state and local governments has been
cut back, and looming budget shortfalls threatened
even greater cuts in the near future.
• The paradox of expanding demand for legal services
relating to basic needs such as housing and custody, and
ongoing cuts in funding resources for legal services
presents a daunting situation.
• Yet, this paradox also makes finding new ways to expand
access to justice through
– study of specific legal needs
– creative approaches to addressing varying needs
– expanding the involvement of all stakeholders all the
more compelling
Caveats
• In evaluating where legal representation is most needed,
and where creative strategies need to be developed that
incorporate stakeholders not previously involved, certain
principles should be honored, including
– Expanding the right to counsel should not interfere with
existing legal services and pro bono programs’ ability
to set their own priorities; Civil Gideon is not a critique
of the good work of existing under-resourced providers,
but rather an attempt to build on them.
Caveats
• Civil Gideon does not mean diverting existing funds from
current legal services to the poor. Simply shifting funds or
volunteers or administrative staff to new projects is not a
increase in services.
• The power of Civil Gideon efforts is the opportunity to move
beyond the existing public interest/legal services support
group and build new “buy in” and support from other
groups, such as the judiciary, the private bar and the public.
• Professor Russell Engler, New England College of Law and
a national Civil Gideon scholar, proposes the pursuit of Civil
Gideon as a component of an overarching access to justice
strategy, in which it is essential to improve our
understanding of precisely those scenarios in which counsel
Is most needed.
• This recognition is more important than ever when
resources to address the need are more scarce.
• Professor Engler suggests a three-prong approach.
– Prong 1 is to consider revising the roles of judges,
court-connected mediators and clerks;
– Prong 2 is to evaluate and implement various forms of
assistance short of full representation such as self-help
centers and advice-only clinics, for pro se litigants; and
– Prong 3 is to expand the right to appointed counsel in
those areas where Prongs 1 and 2 are insufficient.
Revising the Roles of Judges, Court-Connected
Mediators and Clerks
• Judicial canons often do not focus on cases involving pro se
litigants and so provide little direct guidance on how active
or passive judges should be; and
• The focus on fairness and justice, in substance and not
simply appearance, may require shifting the approach used
with pro se litigants.
Revising the Roles of Judges, Court-Connected
Mediators and Clerks
• The role of judges in advancing fairness and justice may
need to be shifted to require that they:
– Assist unrepresented litigants to make sure that all
relevant information is before the court
– Ensure that unrepresented litigants do not forfeit rights
due to the absence of counsel
Revising the Roles of Judges, Court-Connected
Mediators and Clerks
• Chief Justice Herbert P. Wilkins (ret.), Supreme Judicial Court of
Massachusetts, has cited the work of that court’s Steering Committee on
Self-Represented Litigants, and its recommendations, including:
– Further guidance to judges on ethical conduct and useful courtroom
techniques in cases involving pro se litigants
– Additional simplified forms and self-help materials
– Expanded use of technology
– Experimentation with court service centers
– A senior-level position to direct court-based policies
Revising the Roles of Judges, Court-Connected
Mediators and Clerks
• The Idaho Committee to Increase Access to the Courts (2002) developed
the following set of guidelines for judges handling hearings with pro se
litigants:
– Verify that the party is not an attorney; understands he is entitled to
use an attorney to represent him, and chooses to proceed pro se
– Explain the process
– Explain the elements
– Explain that the party bringing the action has the burden to present
evidence in support of the relief sought
Revising the Roles of Judges, Court-Connected
Mediators and Clerks
– Explain the kind of evidence that may be presented
– Explain the limits on the kind of evidence that may be considered
– Ask both parties whether they understand the process and the
procedure
– If non-attorneys are permitted to sit at counsel tables, they may
provide support but should not be permitted to argue or to question
witnesses
Revising the Roles of Judges, Court-Connected
Mediators and Clerks
– Questioning by the judge should be directed at obtaining general
information in order to avoid creating appearance of advocacy
– Whenever possible, the matter should be decided and the order
prepared immediately upon the conclusion of the hearing so it may
be served on the parties
Source: Idaho Committee to Increase Access to the Courts (2002)
http://www.ajs.org/prose/pdfs/idaho_protocol.pdf
Evaluate and Implement Various Forms of Assistance
Short of Full Representation
• This prong “captures an array of assistance programs
beyond the work of court personnel and short of full
representation.”
• Examples of such projects include:
– Help Desks that provide
 Information only
 Information and legal advice, and/or
 Limited representation.
Evaluate and Implement Various Forms of Assistance
Short of Full Representation
– Limited representation, where assistance becomes
representation, but only for part of a case, such as:
 Family court emergency custody hearings
 Family court custody hearings involving domestic
violence or abuse/neglect allegations
 Eviction hearings
 Mortgage foreclosure hearings
Evaluate and Implement Various Forms of Assistance
Short of Full Representation
– “Hybrid” models and pilot projects such as
 Custody Conciliation project (Allegheny County)
 Landlord Tenant Appellate Mediation program
(Philadelphia County)
 Family Court project (Lancaster County)
 Mortgage Foreclosure Diversion project
(Philadelphia County)
Expanded Right to Appointed Counsel/ Full
Representation
• Argues that where revised roles for judges and court
personnel, and the various limited representation or
assistance programs fall short, “we can no longer accept
the denial of access and routine forfeiture of rights as
acceptable outcomes” and
• In those situations, “we must recognize and establish a
right to counsel in civil cases.”
Expanded Right to Appointed Counsel/ Full
Representation
• Argues that three important realities shape the discussion
of when full representation is needed:
– The scope of the right to counsel is directly related to the
effectiveness of the first two prongs (revised roles of court
personnel; and various help desks, limited representation models
and hybrids); when these steps are effective, full representation
may not be needed
– The greater the imbalance of power between litigants, the more
extensive the assistance will need to be
– The status quo is not working, as litigants often forfeit important
rights due to absence of counsel
• Formed in 2009
• Endorsed development of pilot projects in eviction and
mortgage foreclosure defense, and custody cases
• Developed an education and communications plan
• Created a website to report developments across nation
• Created three working groups:
– Housing
– Family Law
– Education and Communications
• Composed of judges, public interest and private bar
attorneys, law professors and other interested parties
• Task Force meetings alternate with working group
meetings to ensure regular reporting and follow-up
• Activities locally and new developments nationally reported
and publicized in Bar media, including newspapers,
magazines and on-line
• Tracks pilot projects, studies, analysis of Civil Gideon
activities across the country
• Why a funded array of Civil Gideon services expands
access to justice
and
• Enhances the economic and social well-being of society as
a whole
• Building the case for Civil Gideon step by step
– Modeling (court projects; help desks; pilot projects)
– Analysis (what works well, what requires more)
– Education (legal community; general public)
– Persuasion (study results; cost-benefit analyses)
– (Ultimately) Funding
Process
• Creating a Civil Gideon right to counsel is likely to require a
combination of
– Short-term efforts, such as designing and implementing
help desks and pilot projects
– Intermediate-term efforts, such as tracking projects as
they unfold, collecting statistics and case reports and
analyzing effectiveness and impact
– Long-term efforts to educate, persuade and ultimately
gain funding, particularly for providing a genuine right
to counsel in those matters where it is essential (Prong
3 of the Russell Engler model)
Components
• Revised roles of court personnel and creation of courtbased pilot projects such as help desks
• Designing and implementing limited representation and
mediation hybrids in areas of fundamental need such as
housing and family law/custody
• Full representation where nothing less will work
Reaching All Stakeholders
• Attracting and cultivating the support of all other
stakeholders, such as:
– Municipal and state governments
– Community-based organizations
– Non-lawyer professionals (accountants, housing
counselors, social workers, etc.)
– Universities and law schools
– Private entities (such as banks, lenders and borrowers
in mortgage foreclosure)
Other Essential Elements of Successful Proposals
• Tracking projects as they unfold
– Statistics
– Case reports
• Analysis and evaluation
• Cost-benefit analysis
• Be concerned about the lack of access to justice
• Promote Civil Gideon as a benefit to society as a whole
• Let others—friends, representatives, media—know of your
concern!
Thank you for attending!