Family Law Civil Gideon: are free lawyers always the best approach?

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fencePainterS 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] 
  • ProfPointer 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)

SoapBox   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:

ESPMazeNS ”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:

  1. 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.
  2. houseG   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)
  3. 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.)
  4. It assumes that Assigned Counsel will competently and diligently represent their low income client (see discussion below).
  5. graphClimbS  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.]
  6. 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.

podium 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.

ProfPointerIn 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
  • graphClimbS  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

  thumbDown   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.” 

8 Comments

  1. 127001

    March 9, 2007 @ 4:18 pm

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    Okay…. I am eating crow, both feet, bald head bowed to the author of the best article I have read yet regarding what I believe “Civil Gideon” should! be about.

    The right to access to the courts, fair hearing, equitable treatment, and unnecessarily adding to the pockets of the legal community who, as we have already experienced with the criminal court-appointed counsel, ineffective counsel in most cases.

    Gideon v. Wainwright did guarantee right to counsel in criminal matters, but it did not limit that right to people based on financial or societal status. It guaranteed right to all regardless how that happened. For those without the financial means, that meant money. But what about those accused of something many attorneys would not want to represent? or political issues? The court did not discriminate those issues in the Gideon decision (although our current Administration now has!). That is what is equitable. And this is the point I disagreed on with in a conversation with Debra Gardner (Brennan Center) in 2004. Immediately after that conversation I purchased the domain names “Civil Gideon.”

    I’d say your stats are “optimistic” though regarding the 20%. Try more like 50-60%, adding those attorneys who dump their clients mid-case for various reasons.

    Burp! (the left foot)

  2. Paul Martinek

    March 9, 2007 @ 11:31 pm

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    Although I appreciate the thoughtful reaction to my piece in the Herald and the issue of unrepresented litigants, I respectfully disagree with the notion that domeestic relations law and the court process can be simplified in such a way that the average non-lawyer would be able to effectively represent him or herself, particularly when the other side has an attorney.

    The law is necessarily complex, as are the rules that are used to govern the process. The average person without legal training simply is not equipped to navigate the system in a way that will fully protect his/her rights. Go to any clerks office and you will see person after person who cannot fill out a simple form or comprehend how to serve the complaint on the opposing party. There may be some exceptional people who can represent themselves but the average person cannot do so — and expecting the sytem to be simplified is not realistic. It’s not going to happen because the issues involved are too nuanced, too reliant on caselaw interpreting common law and poorly drafted statutes.

    Although civil Gideon might sound to some like a “full employment act for lawyers,” many lawyers in fact are not in favor of it for a number of reasons. I myself am not convinced that civil Gideon is the answer but I do believe something must be done to help those who are incapable of protecting their fundamental rights without an attorney that at present they cannot afford. The average person can put on a band aid without the aid of a doctor but wouldn’t dream of performing surgery on him/herself — they would leave that to a surgeon. The law is no different.

    Paul J. Martinek

  3. Bonnie Russell

    March 10, 2007 @ 12:34 am

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    Was interviewed by New York’s WOR radio yesterday…mostly about Rudy alienating his own children, and the sad state of Family Court non-profits and how profitable Domestic violence has become.

    All these studies aside…much is said, little is done.

    Our government is broken. It’s up to us, not legislators to fix it.
    Attorneys and the public alike are making sure transparency is the answer at http://www.USAjudges.com

    Reports made there have already ended the efforts of one judge, up for re-election after eight years on the bench; overstayed his ability/desire to be impartial. He’s now free to return to private practice.

  4. david giacalone

    March 10, 2007 @ 12:38 am

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    Paul, Thank you very much for taking the time to make a thoughtful reply. With respect, however, the surgery analogy is inapt for most of the problems that most Americans bring to family court, and having lawyers repeat that cliche over and over won’t make it true. shlep is filled with information about the things that are being done across the nation to help regular folk navigate courts, with family courts receiving the most attention. Check out the National Council of State Courts state-by-state list of Self-Help/Information Resources and Centers, to see what’s available. And, take a look at our post what have they done for me lately?, as well as Best Practices Guide Issued by the Self-Represented Litigants Network.

    I’m happy to say that the experience of litigants, judges and pro se practitioners across the nation jibes with what I saw going to Family Court on perhaps a thousand mornings — average people, with a little guidance from court personnel and an appropriately receptive approach by the judges, making their cases and receiving a fair result without lawyers (and, often, against laweyrs). But, and this is very important, things are getting even better every day, thanks to growing and improving self-help assistance programs — and, much more can and should be done.

    Not only does pro se assistance give much more bang for the Access-to-Justice buck than hiring lawyers for every poor litigant, it also allows the non-poor to assert their right to have important everyday disputes resolved without involving lawyers. Some of the poor do not have the capacity to represent themselves. But the vast majority do, and it is not too much to expect that they will take advantage of self-help resources before asking the public to pay for a lawyer.

    The Chief Justice in your state recently said she was proud that Massachusetts is a leader in providing assistance to unrepresented litigants, but more must be done. Frankly, many states are doing much more than Massachusetts is, and I hope efforts will greatly increase across the Commonwealth.

    The court system belongs to the public, not to the legal profession, and should function in a way that serves the public’s interests first.  As I said on the shlep About page:

    The average American is not an illiterate serf who cannot understand and handle — with a little bit of guidance — most of his or her own everyday legal problems.   In other words, we shouldn’t have to shlep around with a lawyer on our backs in order to get justice. The best way to ensure that the non-rich also have access to necessary legal and judicial services is to give them the ability and the option to formulate adequate solutions themselves, including acting as pro se litigants in court. 

  5. shlep: the Self-Help Law ExPress » Blog Archive » the dis-accessed middle class of North America

    March 10, 2007 @ 11:56 am

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    [...] Just yesterday, in our post on Family Court Civil Gideon, I noted that the American who is non-poor (but not rich) very often cannot realistically afford a lawyer, but is not helped by the Civil Gideon movement.   By coincidence, the Chief Justice of the Supreme Court of Canada, Beverley McLachlin, warned on Thursday that the middle class in her country is also often denied effective access to justice due to the high cost of retaining counsel.  See “Access to justice is critical for Canadians: chief justice,” National Post/Canada.com and “Top judge sounds alarm on trial delays,”  The Globe and Mail,  (March 9, 2007) [...]

  6. 127001

    March 13, 2007 @ 6:13 pm

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    Great dialogue going here. I have to say I agree more than disagree with all the comments, including Paul Martinek’s.

    But respectfully, Paul, it is the consumer that is seeing the issues of representation (aka Civil Gideon) without blinders, not the legal community. There are so many things that the “average non-lawyer” can do not only to represent themselves in court, but with education and information, can act to prevent ending up in court in the first place! thereby not even needing a lawyer.

    I agree wholeheartedly with your comment about one side having an attorney and the other side non-represented though. One of my major issues is the “lack of level playing field” in the judicial system itself. Judges give preference and credibility to attorneys when one side is represented, to the point it is atrocious and blatant disregard for rights. Tell me why a judge would believe an attorney who states there is a court order, while the unrepresented litigant vigorously states there is not, and demands its production. The result: The judge responds “there must be one because an attorney wouldn’t lie about that.” (never produced or required either; the “system” won). You want to go to jail over something like that?

    It’s common, as are other issues that the legal community seems to not want to address because it involves their own adding to the failure of the system.

    I agree there are many who haven’t a clue how to navigate the system, but is that a reason to make a blanket decision to deny them the right to learn to? Or assistance from others to do so (where the State Bar Associations immediately jump in and charge UPL). My own interpreter of 15 years withdrew because she was charged with UPL for helping me read and manage my legal documents. She was also forcibly removed from a courtroom by a judge who “decided” I did not need one in her courtroom. Yeah. Equal justice all right.

    And Bonnie Russell brings out an excellent point about Domestic violence (always follow the money on any issue!). In Family Law, domestic violence extends into the courtroom, many times with the help of the system itself. The Minnesota Center Against Violence and Abuse had an excellent article published several years ago (and appeared in Lexis I believe; link and document not handy but will be going up on my site soon). I believe the title referenced “Stalking Through the Courts” or something like that. It was about how abusers are enabled by the court system (and attorneys and those involved in the system) to continue stalking and abusing their victims (especially the children) through the courts. How many attorneys in family law unknowingly play into this type of abuse and manipulation? Too many.

    The court system has become a bloody and brutal battlefield, with few left unscathed. In domestic relations, entire generations of children are scarred for their lifetimes. The system will change because, if we don’t change it now, they will later.

    Does anyone want it to be sooner? or later?

  7. PointOfLaw Forum

    April 15, 2007 @ 11:04 pm

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    Giacalone on “Civil Gideon”…

    As we’ve had occasion to note in the past (scroll), there’s a campaign underway to create a broad-based new entitlement for low-income persons (and perhaps others as well) to be provided with lawyers at public expense to handle a variety……

  8. Are Mediators in the Legal System Hindering a Civil Right to Counsel?

    June 14, 2007 @ 8:41 am

    8

    [...] This civil right to counsel is known as “Civil Gideon”, after the landmark U.S. Supreme Court decision, Gideon v. Wainwright, which affirmed the right of an indigent person to have the assistance of counsel in a criminal trial. (Retired mediator and attorney David Giacalone introduced me and other readers of the blog shlep to this movement.) [...]

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