Through litigation and legislation, a growing number of private and public interest lawyers across the country are pushing to secure those with low incomes the right to counsel in civil matters, including foreclosures, evictions and child custody cases.
Legal aid groups are under-funded and overworked, they argue, and pro bono services aren’t enough to fill the gap for the millions who go unrepresented.
“We can’t do it alone,” said Kathryn Grant Madigan, immediate past president of the New York State Bar Association, who for the past year has been hitting the radio airwaves with public service announcements calling for a civil right to counsel.
“No one should lose their child because they did not have effective counsel,” said Madigan, partner at Levene Gouldin & Thompson in Binghamton, N.Y. “This is a significant social movement, and it has spread indeed all over the country. We’ve been beating this drum for so long and hard, and we’ve gotten to the place now where everyone is starting to pay attention.”
On the litigation front, attorneys are asking the Ohio Supreme Court to rule that an elderly, low-income couple facing loss of their home through foreclosure has a state constitutional right to counsel at state expense. Hill v. Myers, No. 08-1141.
The Alaska Supreme Court is considering whether the state has to provide an attorney for a mother involved in a custody dispute because the woman is poor and the father has a lawyer. A lower court granted the attorney, but the case was appealed. Gordanier v. Jonsson, No. 3AN-06-8887.
In Washington state, the Supreme Court ruled in December that there is no right to legal representation in divorce cases. The case involved a woman who couldn’t afford a lawyer at her divorce trial and lost primary custody of her children. Her husband had an attorney. King v. King, 174 P.3d 659 (Wash. 2007).
LEGISLATIVE ACTION
On the legislative front, Louisiana’s governor signed a law in July that provides legal counsel to parents facing termination of parental rights in intrafamily adoption disputes.
In New York City, a proposed bill is pending that would give low-income seniors the right to an attorney in eviction cases and foreclosures.
Right-to-civil-counsel statutes have also been proposed in recent years in California, Georgia, Maryland, Texas, Washington and Wisconsin. Several bar associations, including those in Hawaii, Massachusetts, Minnesota and New York, are also establishing task forces to establish a civil right to counsel, answering a call from the American Bar Association.
In 2006, the ABA adopted a resolution urging governments to provide lawyers in civil cases where “basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody.” Mary Ryan, a partner at Boston’s Nutter McClennen & Fish, was one of many who heeded that call. “All of us want to find a way to ensure that poor people get access to justice,” Ryan said. “That can mean the difference between living comfortably and living on the streets or losing kids.”
Ryan is co-chairwoman of the Boston Bar Association’s newly formed Task Force on Civil Right to Counsel, which is seeking private funding and grants for nine pilot projects that would provide free lawyers to litigants in housing, juvenile, family and immigration law cases. The goal is to demonstrate the value of the projects before seeking public funding.
“I think most people believe they have a right to a lawyer if they’re getting evicted,” Ryan said. “They watch TV and see that, if a poor person is charged with a crime, a lawyer will be provided.”
True for criminal matters, not for civil ones.
That was decided by the U.S. Supreme Court in Gideon v. Wainwright, 372 U.S. 335 (1963), in which the high court said that individuals charged with crimes had a right to counsel. In 1981, the high court was asked to recognize a right to counsel in civil cases in Lassiter v. Department of Social Services, 452 U.S. 18, in which a mother who faced permanent loss of her parental rights argued that she was entitled to counsel. The justices held that, although courts could appoint a lawyer on a “case by case” basis, there is no categorical right to counsel in civil cases.
