{"id":591,"date":"2007-03-09T15:29:33","date_gmt":"2007-03-09T19:29:33","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/shlep\/2007\/03\/09\/family-law-civil-gideon-are-free-lawyer"},"modified":"2007-03-10T12:00:32","modified_gmt":"2007-03-10T16:00:32","slug":"family-law-civil-gideon-are-free-lawyers-always-the-best-approach","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/shlep\/2007\/03\/09\/family-law-civil-gideon-are-free-lawyers-always-the-best-approach\/","title":{"rendered":"Family Law Civil Gideon: are free lawyers always the best approach?"},"content":{"rendered":"<p><img loading=\"lazy\" decoding=\"async\" height=\"34\" alt=\"fencePainterS\" src=\"http:\/\/blogs.law.harvard.edu\/shlep\/files\/2007\/01\/fencePainterS.jpg\" width=\"50\" \/>\u00a0In &#8220;<a href=\"http:\/\/news.bostonherald.com\/editorial\/view.bg?articleid=186421&amp;format=text\"><em>Family law not for amateurs<\/em><\/a>&#8221; (March 5, 2007), lawyer Paul J. Martinek used an op\/ed piece in the <em>Boston Herald<\/em> to introduce the Massachusetts public to the <em>Civil Gideon<\/em> concept, focusing on its relevance to family court matters.\u00a0 Martinek is the editor of <a href=\"http:\/\/www.masslawbrief.com\"><em>Massachusetts Law Brief<\/em><\/a>.\u00a0<\/p>\n<ul>\n<li>&#8220;<em>Civil Gideon<\/em>&#8221; is the right &#8212;\u00a0and the name of\u00a0the movement to obtain the constitutional or legislative right &#8212; of\u00a0low-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.\u00a0The name comes from\u00a0the analogy to the right to counsel in criminal cases, which was announced by the U.S. Supreme Court in <em>Gideon v. Wainwright<\/em>. [see our <a href=\"http:\/\/blogs.law.harvard.edu\/shlep\/2007\/01\/20\/schwarzenegger-wants-civil-right-to-counsel-pilot-project\/\">prior post<\/a> on a pilot project in California]\u00a0<\/li>\n<li><img loading=\"lazy\" decoding=\"async\" height=\"30\" alt=\"ProfPointer\" src=\"http:\/\/blogs.law.harvard.edu\/shlep\/files\/2007\/02\/pointerDudeNegF.gif\" width=\"40\" \/>\u00a0On August 8, 2006, the House of Delegates of the American Bar Association unanimously passed the following Civil Gideon\u00a0<a href=\"http:\/\/www.abanet.org\/media\/docs\/112Arevised.pdf\">Resolution<\/a>: &#8220;RESOLVED, That the American Bar Association urges federal, state, and territorial governments to <em>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<\/em>, such as those involving shelter, sustenance, safety, health or child custody as determined by each jurisdiction.&#8221; (emphasis added) See &#8220;<a href=\"http:\/\/www.abanet.org\/journal\/daily\/am8house.html\"><em>A Civil Law Gideon<\/em><\/a>,&#8221; <em>ABA Journal<\/em>, Aug 8, 2006 (via <a href=\"http:\/\/trialadnotes.blogspot.com\/2006\/08\/civil-gideon.html\"><em>Trial Ad Notes<\/em><\/a>)<\/li>\n<\/ul>\n<p><strong><img loading=\"lazy\" decoding=\"async\" height=\"59\" alt=\"SoapBox\" src=\"http:\/\/blogs.law.harvard.edu\/shlep\/files\/2007\/02\/SoapBoxDude.gif\" width=\"40\" \/><\/strong>\u00a0\u00a0<strong>\u00a0Warning<\/strong>: <em>I&#8217;m about to\u00a0upset some of my\u00a0usual allies<\/em>:\u00a0 I agree with the fundamental &#8212; and I hope uncontroversial &#8212; assertion made by those in the Civil Gideon movement\u00a0that our\u00a0government must ensure fair and effective access to justice for all, including the poor, and especially in matters related to basic needs and rights.\u00a0 But, &#8220;<a href=\"http:\/\/news.bostonherald.com\/editorial\/view.bg?articleid=186421&amp;format=text\"><em>Family law not for amateurs<\/em><\/a>&#8221;\u00a0underscores 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\u00a0circumstances in which they are likely to find themselves in court.\u00a0\u00a0<\/p>\n<p>Like the proponents of the ABA&#8217;s Civil Gideon Resolution (<em>e.g.<\/em>,\u00a0<a href=\"http:\/\/www.abanet.org\/journal\/daily\/am8house.html\">here<\/a> and <a href=\"http:\/\/www.law.com\/jsp\/nlj\/PubArticleNLJ.jsp?id=1154682259240\">here<\/a>) Martinek argues that no lawyerless\u00a0litigant can get a fair hearing when the other side has a lawyer &#8212; <em>and<\/em> that having a lawyer will ensure such fairness.\u00a0 Although he mentions that there are &#8220;some practical downsides&#8221; with Civil Gideon (such as its\u00a0&#8220;staggering&#8221; cost, difficulties telling who is eligible,\u00a0and disincentives to settle when you have a free lawyer), Martinek concludes that &#8220;something&#8221; must be done and:<\/p>\n<blockquote><p><img loading=\"lazy\" decoding=\"async\" height=\"67\" alt=\"ESPMazeNS\" src=\"http:\/\/blogs.law.harvard.edu\/shlep\/files\/2007\/03\/ESPMazeNS.jpg\" width=\"60\" \/>\u00a0&#8220;The issues that are litigated in family courts &#8211; especially those involving the right to see and help raise one\u2019s children &#8211; are too important to be dealt with by emotionally overwhelmed mothers and fathers with no training in the law.&#8221;<\/p><\/blockquote>\n<p>I believe we need to ask whether it makes more sense to increase the importance of lawyers in family and housing courts <em>or <\/em>to\u00a0work\u00a0much harder\u00a0to structure the judicial system so that\u00a0most individuals\u00a0can achieve fair and effective justice <em>without<\/em> lawyers.\u00a0 (see our <a href=\"http:\/\/blogs.law.harvard.edu\/shlep\/About\">About page<\/a>)\u00a0\u00a0Based on my experience as a self-help law proponent, a legal ethics watchdog,\u00a0and an observer of the legal profession&#8217;s attitude toward access to justice, and after spending a decade in a law practice focused on Family Court, here\u00a0are some of the problems that I have with the lawyers-for-all-style Civil Gideon: <!--more--><\/p>\n<ol>\n<li>It looks far too much like an Attorney Employment Assurance Plan for underemployed members of the Main Street bar. \u00a0In 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.<\/li>\n<li><img loading=\"lazy\" decoding=\"async\" height=\"43\" alt=\"houseG\" src=\"http:\/\/blogs.law.harvard.edu\/shlep\/files\/2007\/02\/houseG.jpg\" width=\"35\" \/>\u00a0\u00a0\u00a0It assumes that lawyers can\u00a0do a better job than reasonably-informed laypersons in presenting cases\u00a0that involve their families (or sustenance and housing conditions).\u00a0This infantilizes litigants and denigrates the intelligence of the vast majority of <em>pro se<\/em> litigants, who know far better than any lawyer the facts of their situation and are capable of telling their stories to receptive judges.\u00a0 It also contradicts studies of family court lawyers; see below)<\/li>\n<li>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.)<\/li>\n<li>It assumes that Assigned Counsel will competently and diligently represent their low income client (see discussion below).<\/li>\n<li><img loading=\"lazy\" decoding=\"async\" height=\"28\" alt=\"graphClimbS\" src=\"http:\/\/blogs.law.harvard.edu\/shlep\/files\/2007\/03\/graphClimbS.jpg\" width=\"35\" \/>\u00a0 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 &#8212; and, unlike self-help programs, Civil Gideon\u00a0makes no accommodation for these people. [<em>update<\/em>: March 10, 2007: see our post &#8220;<a href=\"http:\/\/blogs.law.harvard.edu\/shlep\/2007\/03\/10\/the-dis-accessed-middle-class-of-north-america\/\">the dis-accessed middle class of North America<\/a>,&#8221; which discusses the situation in Canada, as seen through the eyes of their Chief Justice.]<\/li>\n<li>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 &#8212; and that self-help centers and <em>pro se<\/em> programs for judges and court staff are spreading and becoming more and more effective.<\/li>\n<\/ol>\n<p><img loading=\"lazy\" decoding=\"async\" height=\"50\" alt=\"podium\" src=\"http:\/\/blogs.law.harvard.edu\/shlep\/files\/2006\/08\/podiumSF.gif\" width=\"30\" \/>\u00a0Before you buy into the proposition that publicly-funded counsel &#8212; which will, in most communities,\u00a0mean Assigned Counsel, who are lawyers in private practice who ask to receive Civil Gideon clients\u00a0from the courts &#8212; please take a look at two postings that I wrote at <em><a href=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/2004\">f\/k\/a<\/a><\/em> and its predecessor <em>ethicalEsq<\/em>.\u00a0 In the post\u00a0<a href=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/2004\/02\/03\/too-many-assigned-counsel-just-dont-give-a-damn\/\">Too many assigned counsel just don&#8217;t give a damn<\/a> (Feb. 3, 2004), for example, I pointed to\u00a0numerous assigned counsel scandals, and quoted a <a href=\"http:\/\/www.courts.state.ny.us\/press\/old_keep\/1ad-rep-poor.shtml\">2002 New York study<\/a>, which found:<\/p>\n<blockquote><p>\u201cNotwithstanding the valiant efforts of many lawyers, too many of New York City\u2019s 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.\u201d<\/p>\n<p>\u201cThe outmoded, underfunded, overburdened, and organizationally chaotic system in operation today dishonors New York\u2019s long-standing commitment to an individual\u2019s 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.\u201d<\/p><\/blockquote>\n<p>In addition, I noted a <a href=\"http:\/\/www.abanet.org\/child\/challenge.html\">1997 ABA study<\/a> discovered that:<\/p>\n<ul>\n<li>\u00a0\u201cIn child abuse and neglect cases, the legal representation of parents, children, and child protection agencies is often seriously deficient,\u201d\u00a0with many lawyers apparently not understanding that \u201ddiligent representation\u201d included obligations such as \u201cto meet with clients well in advance of each substantive hearing, to investigate disputed facts, and to be present in court.\u201d\u00a0 Take a look <a href=\"http:\/\/www.nysda.org\/Defense_Services\/defense_services.html\">here<\/a> for more studies with similar sad conclusions.<\/li>\n<\/ul>\n<p><img loading=\"lazy\" decoding=\"async\" height=\"30\" alt=\"ProfPointer\" src=\"http:\/\/blogs.law.harvard.edu\/shlep\/files\/2007\/02\/pointerDudeNegF.gif\" width=\"40\" \/>In the post, I acknowledge\u00a0that 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.\u00a0 Nonetheless, I declared:\u00a0this much seems clear to me after years observing and participating in the assigned counsel system:<\/p>\n<ul>\n<li>many assigned counsel make no meaningful effort to provide meaningful, diligent representation<\/li>\n<li>a very large percentage take assigned cases solely because they have no other sources for clients<\/li>\n<li>they have no other sources because they do not have the respect of their colleagues, judges, or former clients<\/li>\n<li><img loading=\"lazy\" decoding=\"async\" height=\"28\" alt=\"graphClimbS\" src=\"http:\/\/blogs.law.harvard.edu\/shlep\/files\/2007\/03\/graphClimbS.jpg\" width=\"35\" \/>\u00a0\u00a0they are unlikely to work harder if pay levels are increased, and may even do less per case<\/li>\n<li>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<\/li>\n<li>disciplinary committees totally avoid these issues of competence and diligence<\/li>\n<li>the mainstream bar holds its nose and pretends the ne\u2019er do wells don\u2019t exist<\/li>\n<\/ul>\n<p>\u00a0 <img loading=\"lazy\" decoding=\"async\" height=\"49\" alt=\"thumbDown\" src=\"http:\/\/blogs.law.harvard.edu\/shlep\/files\/2007\/01\/thumbDown.gif\" width=\"40\" \/>\u00a0\u00a0\u00a0In conclusion, I\u00a0asked: What percentage of assigned counsel fit my very negative picture?\u00a0\u00a0 Of course, I can\u2019t say for sure, but it\u2019s certainly at least 20%, and probably a significantly larger figure.\u00a0 Too damn many of them.<\/p>\n<p>Similarly, in <a href=\"http:\/\/blogs.law.harvard.edu\/ethicalesq\/2004\/01\/04\/no-bull-lawyers-need-cle\/\">No Bull Lawyers Need CLE<\/a> (Continuing Legal Education), Jan. 4, 2004,\u00a0I quoted the findings by an ABA working group concerning the deficient representation received by parties in many family court matters.\u00a0 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 \u201cImproving Legal Representation in Cases Involving Children, Youth and Families.\u201d\u00a0 Cooper called upon state and local bar leaders to sign a pledge that:<\/p>\n<blockquote><p>\u00a0\u201cWe 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.\u201d\u00a0<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"<p>\u00a0In &#8220;Family law not for amateurs&#8221; (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.\u00a0 Martinek is the editor of Massachusetts Law Brief.\u00a0 &#8220;Civil Gideon&#8221; is the right &#8212;\u00a0and the name [&hellip;]<\/p>\n","protected":false},"author":437,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[900],"tags":[],"class_list":["post-591","post","type-post","status-publish","format-standard","hentry","category-viewpoint"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/posts\/591","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/users\/437"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/comments?post=591"}],"version-history":[{"count":0,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/posts\/591\/revisions"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/media?parent=591"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/categories?post=591"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/tags?post=591"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}