Access to Counsel = Access to Justice: Discussing the Right to

Counsel in Civil Cases

Access to Counsel = Access to Justice: Discussing the Right to

Counsel in Civil Cases

By John PollockCoordinator, Nat’l Coalition for a Civil Right to Counsel

Univ. of MS School of Law – Access to Justice Symposium2/8/13

By John PollockCoordinator, Nat’l Coalition for a Civil Right to Counsel

Univ. of MS School of Law – Access to Justice Symposium2/8/13

Why is RTC Important?Why is RTC Important?

• Focus on 5 “basic human needs”: shelter, sustenance, safety, health, child custody

• Difference that counsel makes in outcomes

• Providing equity in proceedings• Increasing belief in judicial system• Financial benefits of providing

counsel

• Focus on 5 “basic human needs”: shelter, sustenance, safety, health, child custody

• Difference that counsel makes in outcomes

• Providing equity in proceedings• Increasing belief in judicial system• Financial benefits of providing

counsel

Arguments Against A Right to Counsel, and ResponsesArguments Against A Right to Counsel, and Responses

• “It’s too costly.”• “Criminal cases are more important, and we don’t

have enough resources for those cases as it is.”• “The only pragmatic solution is more pro se

assistance / court simplification / nonlawyer programs.”

• “It would deprive legal aid programs of their autonomy because they’d have to litigate every housing/custody/etc. case.”

• “If you give everyone a lawyer, people will abuse the system” or ”It’s just something the ABA wants to create more employment for lawyers.”

• “It’s too costly.”• “Criminal cases are more important, and we don’t

have enough resources for those cases as it is.”• “The only pragmatic solution is more pro se

assistance / court simplification / nonlawyer programs.”

• “It would deprive legal aid programs of their autonomy because they’d have to litigate every housing/custody/etc. case.”

• “If you give everyone a lawyer, people will abuse the system” or ”It’s just something the ABA wants to create more employment for lawyers.”

US. Supreme Court’s View on Criminal Cases:Trending Upward

US. Supreme Court’s View on Criminal Cases:Trending Upward

• Powell v. Alabama (1932)

• Johnson v. Zerbst (1938)

• Betts v. Brady (1942) and Gideon v. Wainwright (1963)

• Argersinger v. Hamelin (1972)

• Powell v. Alabama (1932)

• Johnson v. Zerbst (1938)

• Betts v. Brady (1942) and Gideon v. Wainwright (1963)

• Argersinger v. Hamelin (1972)

U.S. Supreme Court’s View

on Civil Cases:Trending Downward

U.S. Supreme Court’s View

on Civil Cases:Trending Downward

Details on LassiterDetails on Lassiter TPR case: fundamental right

Apply Mathews v. Eldridge factors to type of case

Presumption

Troublesome points of law, determinative difference

Lassiter only applies to federal constitution

TPR case: fundamental right

Apply Mathews v. Eldridge factors to type of case

Presumption

Troublesome points of law, determinative difference

Lassiter only applies to federal constitution

Right to Counsel Post-Lassiter: Majority of States

* = right exists in Mississippi

Parents and/or children* in abuse/neglect (dependency) and TPR cases: statutory or constitutional

Civil contempt: statutory or constitutional* Involuntary commitment for mental health*: statutoryQuarantine: statutoryJudicial bypass*: statutory (1 constitutional)Guardianship: statutory

Right to Counsel Post-Lassiter: Many States

* = right exists in Mississippi

Adult protective proceedings*: statutoryPutative father in paternity proceedings: statutory and

constitutionalNonconsensual adoption: statutory/constitutionalSDP/SVP: statutory/constitutionalParole revocation or other postconviction: mostly

statutory

Right to Counsel Post-Lassiter: One or two states (sometimes only

discretionary)

Custody (parents or child) Domestic violence Public benefits Special immigrant juvenile status Prisoners failing to defend Police officers sued in civil action Compliance with livestock disease prevention Out-of-state owners of cars seized for illegal explosives

transportation

Right to Counsel Post-Lassiter

1. Shelter

2. Sustenance

3. Safety

4. Health

5. Child custody (private)

What’s missing?

Taking Action: Legislation Pt 1Taking Action:

Legislation Pt 1Family law

Adults in abuse/neglect cases: MT (DHHS)

Children in abuse/neglect cases: GA (3 nonprofits), CT, FL, WA

Contested adoptions: LA (private bar), TN

Taking Action: Legislation Pt 2Taking Action:

Legislation Pt 2 Housing: TX (Naishtat bill), NYC (legal services)

Guardianship: MA (legal services)

Juvenile RTC: OH (waiver), PA (waiver), TN (truancy)

Misc: NC (general discretionary via ATJC subcommittee), San Francisco (“RTC city”), WA (RTC as reasonable accommodation)

Taking Action: LitigationTaking Action: Litigation

Family law

Parents: In re CM (NH dependency), Couturier (MT guardianship), In re I.B. (IN TPR), In re J.B.B. (OH adoptions), Rhine v. Deaton (TX private TPR), OPS v. ACS (AK custody), Lucas (AR adoptions), S.G.E. (TX private TPR)

Children: In re MSR (WA TPR), In re KAS (WA dependency), S.S. (NJ TPR), Kenny A (GA dependency), S.G.E. (TX private TPR)

Taking Action: LitigationTaking Action: Litigation

Truancy: Bellevue v. E.S. (WA)

Contempt: Turner v. Rogers (SC), Miller v. Deal (GA)

Protective orders: Leone v. Owen (OH Δ), J.L. v. G.D. (NJ π), D.N. v. K.M. (NJ π and Δ)

Sex offenders: Merryfield v. State (KS), State v. Ontiberos (KS)

Immigration: Franco-Gonzalez (federal)

General discretionary: § 1915 (federal)

Taking Action: PilotsTaking Action: Pilots California:

Funded by legislature ($11 million/yr for 6 yrs)

8 sitesRange of topics

Massachusetts:Privately fundedEvictions in 2 kinds of courts

Elsewhere: TX (evictions; IOLTA funding), IA (DV; privately funded), NY (immigration)

California:Funded by legislature ($11 million/yr for 6

yrs)8 sitesRange of topics

Massachusetts:Privately fundedEvictions in 2 kinds of courts

Elsewhere: TX (evictions; IOLTA funding), IA (DV; privately funded), NY (immigration)

Taking Action: Bar AssociationsTaking Action:

Bar AssociationsABA: 2006 Resolution (10 state

cosponsors), Model Act, Basic Principles

California Model ActsCRTC subcommittees: AK,

Boston/MA, NY, MN, Philly/PA, TXMoot courts, symposia, articles

ABA: 2006 Resolution (10 state cosponsors), Model Act, Basic Principles

California Model ActsCRTC subcommittees: AK,

Boston/MA, NY, MN, Philly/PA, TXMoot courts, symposia, articles

From the Pennsylvania Lawyer

Taking Action: Access to Justice

Commissions

Taking Action: Access to Justice

CommissionsMD Implementation ReportAR, CA, HI, MD, NH, NM, NC, SC,

TX have RTC subcommitteesAR, MD, MA, NC, WI endorsed

ABA Resolution

MD Implementation ReportAR, CA, HI, MD, NH, NM, NC, SC,

TX have RTC subcommitteesAR, MD, MA, NC, WI endorsed

ABA Resolution

Taking Action: Other Efforts

Taking Action: Other Efforts

Wisconsin petitionNY Chief Judge Lippman’s efforts

re: counsel in foreclosureDignity in Schools Campaign:

Model Education CodeModel Act for DependencyShadow reporting on U.S. treaties

Wisconsin petitionNY Chief Judge Lippman’s efforts

re: counsel in foreclosureDignity in Schools Campaign:

Model Education CodeModel Act for DependencyShadow reporting on U.S. treaties

Questions?Questions?