August 6, 2011
Civil Gideon: An Idea Whose Time Should Not ComeBy Lawrence J. Siskind
The U.S. Supreme Court recently revisited the heavily disputed territory of "Civil Gideon" -- the doctrine delineating when, if ever, indigent civil litigants are legally entitled to counsel appointed and paid for by the state. The name "Civil Gideon" comes from the 1963 landmark decision of Gideon v. Wainwright, which held that the Sixth Amendment grants indigent defendants the right to state-appointed and state-paid counsel in criminal cases.
In Turner v. Rogers, the high court confronted the case of Michael Turner, a deadbeat dad with a drug problem. After repeatedly failing to pay child support, Turner was sentenced to serve a 12-month sentence for civil contempt. At the contempt hearing, Turner did not have counsel. Neither did Rebecca Rogers, the mother of their child, who sought the hearing and asked the court to confine Turner because of his pattern of nonpayment.
In its 5-4 decision, the court vacated the South Carolina judgment. The court acknowledged that the Sixth Amendment right to counsel established in Gideon v. Wainwright was inapplicable because Turner was sentenced to civil, not criminal, contempt, and in such cases, the defendant "holds the keys of his prison in his pocket." Once he complies with the order, he is discharged. If he is financially unable to pay, he cannot be held in contempt. Nevertheless, because Turner did not receive clear notice that his ability to pay was a critical question, the majority found that his incarceration violated the Fourteenth Amendment's Due Process Clause.
The dissenting justices maintained that the Due Process Clause never provides a constitutional right to appointed counsel in civil contempt hearings, even if those hearings may lead to incarceration. Justice Clarence Thomas pointed out that reading the Due Process Clause to provide a right to appointed counsel for indigent defendants facing incarceration would render the Sixth Amendment superfluous.
In the wake of its narrow holding, the court seems closely divided between those who believe that the Due Process Clause never provides a Civil Gideon right, and those who would cite the captain of HMS Pinafore: "What never? Well, hardly ever."
The closeness of the decision suggests that the Civil Gideon issue is likely to remain hotly debated in the legal profession and in the states. The ABA House of Delegates has passed a resolution urging the states "to provide legal counsel as a matter of right at public expense where basic human needs are at stake, such as ... shelter, sustenance, safety, health or child custody." The Alaska Bar Association Board of Governors and the Conference of Delegates of California Bar Associations (now known as the Conference of California Bar Associations) have passed similar resolutions. Many other state bar associations have set up committees to study the issue, as have local organizations, such as the San Francisco and Alameda County Bar Associations.
The California legislature has enacted a pilot program, funded by increased court cost fees, that is expected to funnel about $11 million to legal aid societies that provide counsel to civil litigants.
The idea of providing free legal counsel to poor civil litigants sounds not only idealistic, but also eminently sensible, at least at first blush. Our adversarial system rests on the notion that truth and justice will emerge from the crucible of a carefully structured contest, conducted under legal procedures and principles. Arming the litigants with professionals trained to utilize those procedures and principles should render the crucible more likely to generate fair results.
But even if providing poor civil litigants with counsel is a good idea, should it be a government entitlement program? Those who agree with the ABA House of Delegates and contend that counsel should be provided to poor litigants "at public expense" argue that privately funded legal aid societies aren't up to the task because their resources are limited. But limited resources are exactly why legal aid societies are a better solution than a government entitlement program.
Civil Gideon proponents inhabit a world in which every indigent is a deserving litigant. She is a tenant about to be evicted by a greedy landlord, or a loving parent denied access to his child. That is not reality. Legal aid societies, precisely because their resources are limited, are adept at choosing their cases carefully, screening out the frivolous and the undeserving.
Criminal Gideon illustrates the shortcomings of a system that lacks the screening mechanism.
At the trial level, because every indigent is entitled to free counsel, few if any receive competent representation. Attorney General Eric Holder, Jr. recently described a Missouri county where the public defender office refused to accept more criminal cases after its caseload exceeded 395 cases per lawyer per year. He mentioned a Tennessee public defender office where six attorneys were assigned to handle 10,000 misdemeanor cases in a single year. It is simply impossible to imagine the system providing adequate representation under those circumstances. The New York Civil Liberties Union is pursuing a class action against the state, alleging that its public defenders are so overwhelmed that they routinely fail to investigate their cases or make basic legal arguments.
Considering the sorry state of Criminal Gideon, one would expect proponents of a government entitlement program for poor civil litigants to have chosen a different title from "Civil Gideon." It's a badly tarnished brand.
Providing criminal counsel at public expense has ensured that deserving cases are lost in the sea of undeserving ones. The same will happen in the civil sphere if Civil Gideon proponents have their way, and the screening function now provided by legal aid societies is removed.
Apart from a lack of screening, a government entitlement program is also a bad idea because of plain economics. Economists may not agree on much, but they do agree on one basic idea. If you price a good or service below the market rate, people will want more of it. If civil litigation is free, there will be more of it. And that's not necessarily good for the litigants themselves, or for society as a whole.
Consider Turner v. Rogers, the case recently reviewed by the high court. On at least four occasions, Turner refused to pay child support until threatened with contempt. Then he somehow found the money to provide for his child. Had Turner been provided with counsel, free of charge, to oppose the mother's efforts to obtain child support, is it more likely he would have paid -- or that he would have taken advantage of the system to dodge his responsibilities?
Thousands of marital, landlord-tenant and debtor-creditor disputes are resolved every year by informal negotiation and settlement. Perhaps the results are not always "fair," a difficult term to define in these circumstances. But the fact that one or both parties cannot afford counsel ensures that there will be pressure to reach a quick and efficient resolution. Making counsel available for free, to any party below a certain income level, ensures that many ordinary disputes, once settled by discussions, will become clogs in an increasingly overloaded justice system.
A government-funded entitlement program is also problematic because such programs have to draw lines, and those lines are seldom fair. Take the California pilot program. To qualify for a state-appointed attorney, the litigant must earn under twice the federal poverty line, which comes out to roughly $44,500 for a family of four. Imagine two immigrants, one of whom has been here longer than the other, and has saved up enough to purchase his residence and rent out a room. In a landlord-tenant dispute between the two, why should one party earning $44,000 per year receive free legal service while his opponent making $45,000 pays full freight? That leads to a related question: Why should the public, through their tax dollars, take sides in any civil dispute? That may make sense in the Criminal Gideon context, where the resources of the state are mobilized against the defendant, and taking sides tends to level the playing field. But why should the public take sides in a private dispute between two neighbors?
Finally, Civil Gideon is a bad idea today because the states cannot afford it. The California court system has seen a 30-percent reduction in its resources over the past three years. The legislature has slashed the current $3.5-billion budget by $350 million. San Francisco has been particularly hard-hit. The court has sent layoff notices to 40 percent of its employees, and officials predict a five-year wait for lawsuits to get to trial. The situation is not much better in other states.
When the ABA House of Delegates passed its resolution urging the states "to provide legal counsel as a matter of right at public expense," it did not bother to calculate what that expense might be, or how the states might pay for it. Lawyers providing advice in other circumstances with such blithe indifference to the consequences might face malpractice charges. The lack of foresight is particularly galling when one considers that the ABA was asking the public to fund a program that would generate revenue and create employment for its own members. Of course, that apparent self-interest, by itself, should not bar the organization from taking a stand in favor of Civil Gideon. But it should at least motivate the ABA to explore and disclose all the potential pitfalls of the proposal.
In 2007, the California State Bar's 2007 Commission on Access to Justice Report found a $394-million gap in unfunded civil legal services. Ironically, that figure is about the same size as the recent budget cut. If California cannot afford its current legal budget, where is it going to find the money for a new legal entitlement program?
In an ideal economic climate, Civil Gideon would be problematic. In today's financial emergency, it is a non-starter.
There are measures the states can take, short of accepting the ABA's invitation to create a new entitlement program at public expense, to address the problem. States can encourage and expand clinics and help-lines which provide advice to pro se litigants. They can reduce our profession's monopoly by allowing non-lawyers, such as paralegals, to represent indigent parties in certain cases. They can expand the jurisdiction of small claims courts, where neither side is allowed to use counsel. They can increase opportunities for prevailing parties to recover attorney fees, so that deserving indigent parties will have a greater chance of attracting private counsel.
Ultimately, however, it falls on the shoulders of our own profession to address the problem. Helping poor people navigate the civil justice system remains a laudable goal, one which private attorneys should support. They should do so on their own time and on their own nickel. Thousands already do. A government entitlement program is not the solution.
Lawrence J. Siskind, of San Francisco's Harvey Siskind, chairs the ABA Intellectual Property Law Section's Pro Bono Committee.
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