A Civil Gideon? Let the Debate Begin
Thomas M. Burke
The Hullverson Law Firm
St. Louis
“. . . our time of standing pat, of protecting narrow interests, and putting off unpleasant decisions, that time has surely passed. Starting today, we must pick ourselves up, dust ourselves off and begin again the work of remaking America.”(President Barack H. Obama Inaugural Address, January 20, 2009)
“....let both sides join in creating a new endeavor ... a new world of law where the strong are just and the weak secure ... all of this will not be finished in the first 100 days, nor will it be finished in the first 1000 days, nor in the life of this administration, nor in our lifetimes ... but let us begin.” (President John F. Kennedy Inaugural Address, January 20, 1961)
“Still the question recurs ‘Can we do better?’ The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise with the occasion. As our case is new, so must we think anew, and act anew.” (Abraham Lincoln, Annual Message to Congress, December 1, 1862)
The mission of The Missouri Bar, as outlined in its long-range plan, is to advance justice for all and to promote access to legal services for everyone. The challenge, of course, for our bar and our nation, is how this can be best accomplished. As with most public policy issues, at the end of the day the answer lies in setting priorities and committing resources. Despite a variety of efforts to provide access to justice – from extensive volunteer lawyer programs to mandatory pro bono projects to an extensive network of free legal clinics to pre-paid legal services, and finally a federally-funded Legal Services Corporation – we are still only able to reach a small percentage of those citizens who are in need of counsel in civil court proceedings.
In many ways, it seems ludicrous or hopeless to have a discussion about expanding the right to counsel to include civil cases when we are struggling mightily to effectively fund legal services offices and our public defender system. Yet, despite the gloomy picture and the great economic challenges we face as a nation, there seems to be a growing sense of community and cooperation, and a desire to turn away from a focus on self, toward the commonweal. It is in that spirit that I believe we must begin to address whether low-income persons should be provided legal counsel as a matter of right in those categories of adversarial civil proceedings where basic human needs are at stake, such as those involving housing, sustenance, benefits, healthcare or child custody.
Currently, citizens are guaranteed a lawyer if they run the risk of being sentenced to prison, pursuant to the United States Supreme Court’s 1963 decision in Gideon v. Wainwright. Unlike our criminal justice system, access to our civil justice system is more or less dependent on an individual’s means. In cases where contingency fee arrangements are not feasible and pro bono services or legal aid is unavailable, the lack of counsel can have devastating effects on people’s lives, including loss of homes, loss of health benefits, and loss of child custody. Under a “civil Gideon,” if an individual’s basic human needs related to health, housing, child custody or the ability to obtain food are at stake, and the individual cannot afford legal representation, the individual would be entitled to counsel.
The right to counsel in civil cases is already provided in many western countries, including England, Canada and Australia. In the United States, individual attorneys have been working to establish the civil right to counsel for many years. Several states have organized regional or statewide projects to address this issue. In the last few years, the American Bar Association passed a unanimous resolution outlining its strong support for the civil right to counsel.
Obviously, the idea of a civil Gideon – the right to counsel in civil cases – faces enormous challenges and hurdles, not the least of which include who should get counsel and in what types of cases, how much such a program would cost, and a source of funding. Nonetheless, it is never too early to begin a conversation. Though the costs and commitment would be significant, the greater cost, both individually and collectively, is in failing to provide counsel in cases involving housing, healthcare and child custody.
Clearly our current approach to providing access to justice is not working. There are large gaps between services provided and services needed. A new approach seems necessary. New ideas and a broader vision are required, and although the goal seems both unattainable and unfeasible, we must begin the process of looking at the problem in new ways that will provide new solutions.
Hopefully, in the not-too-distant future, when access to counsel for all is a reality and not a pipe-dream, we will be reminded of other grand ideas that were at first summarily dismissed, such as the internal memo at Western Union in 1876 that concluded “this ‘telephone’ has too many shortcomings to be seriously considered as a means of communication. The device is inherently of no value to us.” Then there was the Yale professor who commented that Fred Smith’s thesis proposing an overnight delivery service was a concept that “is interesting and well informed, but in order to earn better than a ‘C’ the idea must be feasible.” (Smith went on to found Federal Express.)
As with the above examples, the concept of a civil right to counsel may seem far-fetched to many. Only time and thoughtful discourse will tell. But one thing is clear: As members of this noble profession and officers of the court, we have the ongoing obligation to consider any and all avenues that lead to access to justice for all citizens.
Let the debate begin.