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In the 1963 case Gideon v. Wainwright, the U.S. Supreme Court held for the first time that criminal defendants who are too poor to afford a lawyer are entitled to free court-appointed counsel. But in the 40 years since the Gideon ruling, no U.S. court has ever found that indigent citizens have a constitutional right to an attorney in a civil case — even in a case in which they could lose their job, their home, or custody of their child. That could change soon. On Oct. 7, Maryland’s highest court heard arguments in Frase v. Barnhart, a case in which a team of public interest advocates and pro bono lawyers have asked the court to find that Marylanders have precisely that right. The advocates’ rallying cry is that they want to establish a “civil Gideon.” “The heart of the argument is access to justice,” says Stephen Sachs, the Wilmer, Cutler & Pickering counsel who is handling the case pro bono on behalf of Deborah Frase, an indigent single mother who lives in Preston, Md., a small town in Caroline County. “The guiding hand of counsel is just as relevant to someone who’s about to lose a child as to someone who’s about to spend 30 days in jail.” But to some observers, it’s not that simple. Although liberal public interest lawyers say ensuring a right to a lawyer in civil cases is fundamental to a just society, others say it would amount to an expensive boondoggle that would foster needless litigation without actually helping the poor. “The idea is almost a formula for a meltdown of the economy,” says Philip Howard, a partner in the New York office of Covington & Burling who has written extensively on civil litigation. “Any time anyone gets angry, they will say, ‘I want a lawyer.’ If a lawyer is available without cost, well, heaven help us.” There is certainly one crucial legal difference between Gideon and Frase. Gideon, a Supreme Court ruling based on the due process clause of the 14th Amendment to the U.S. Constitution, laid down a national rule that all states had to follow immediately. But in a 5-4 decision in Lassiter v. Department of Social Services in 1981, the Court rejected the contention that the U.S. Constitution guarantees indigents a right to counsel in civil cases. In light of Lassiter, Sachs, a former Maryland attorney general, tailored his arguments in Frase on provisions of the Maryland Declaration of Rights, a basic law of the state, and not on the federal constitution. If the Maryland Court of Appeals accepts Sachs’ arguments, such a ruling, as an interpretation of state law by the highest court of a state, would not be subject to appeal to the U.S. Supreme Court and would only be binding in Maryland. Even so, public interest advocates are watching the Maryland matter very closely. No state court anywhere has faced the issue as broadly and directly as it is being posed in this case. A similar case is currently percolating in the courts of Washington state. In 2001, the Supreme Court of Indiana held that an Indiana statute grants the right to free counsel, but the state legislature quickly amended the law to say that a judge may appoint a lawyer for an indigent person, but does not have to do so. “This conversation is taking place in virtually every state,” says Jonathan Smith, executive director of the Legal Aid Society of the District of Columbia and one of the chief strategists behind Frase. “If Maryland were to become the first state to find this right, that would be very, very significant on a nationwide basis.” SELF-REPRESENTATION Deborah Frase, a 32-year-old woman with four children, was locked in a battle for custody of her 3-year-old son with a family that temporarily took care of him while she was in jail awaiting trial on marijuana charges. Frase was unable to afford a lawyer. She tried to get free help from the legal aid bureau in Caroline County and from other legal services programs, but was told that they were understaffed. Frase ended up representing herself at trial. She had had a history of alcohol and drug use, but was nonetheless found fit to be a parent and won custody of her child. But the court attached conditions to its ruling: Frase had to apply to live at a homeless shelter and also allow visitation rights to the other family, which was unrelated to her. Frase found those conditions humiliating and unacceptable — and Sachs says she never would have been subjected to them if she had been represented in court. Meanwhile, Smith says, a pro bono team of lawyers was already in search of the perfect case in which to establish a civil Gideon. That effort was touched off by Wilmer, Cutler’s long-standing pro bono work on the issue and by a grant in 2000 from philanthropist George Soros’ Open Society Institute to the Public Justice Center in Baltimore. The justice center, then headed by Smith, used the money to establish an appellate project in poverty law. Lawyers at the public interest law firm reviewed dozens of cases in which an indigent person had not been represented by a lawyer — until they found Frase’s case, whose facts, they thought, presented their arguments in the best possible light. Frase had filed appeal papers last November at the Maryland Court of Appeals, and the pro bono team took over the case in early 2003. “It was a matter of looking for the proper case,” says Smith, who left the Baltimore public interest firm to take over D.C. Legal Aid in 2002. Frase, a mother arguing with limited success for custody of her son but too poor to afford a lawyer, was a natural choice. In addition to pushing for a right to counsel, Sachs is arguing that the lower courts misapplied U.S. Supreme Court precedent on visitation rights and that a court-appointed master had a conflict of interest because she once represented a party in the case in opposition to Frase. The court could decide the case on those issues without reaching the civil Gideon question. Timothy Bradford, a partner in Kent, Cizek & Treff in Denton, Md., represents the family seeking custody of Frase’s son. He filed a six-page brief in the appeals court, citing Lassiter and also contending that Frase is not ripe for appeal. “My clients are more concerned about the visitation issue and about the best interests of the child than about the pro bono issue,” says Bradford, who himself worked pro bono on the appeal. “At the appellate court, I felt it was one person against a million.” The Maryland attorney general’s office did not enter an appearance or file an amicus brief in the case. ENGLISH LAW Frase’s team spent months researching the Maryland Declaration of Rights and ended up making two basic arguments. One arcane contention under Article 5 of the declaration is that when Maryland became a state, it adopted all English law that was effective on July 4, 1776. Since the days of Henry VII in the 16th century, England had granted a right to counsel for the indigent in civil cases. This right would then apply up to the present day, the Frase team argued. Another contention is that Article 19 of the Declaration of Rights guarantees Marylanders access to justice under an “open courts” provision similar to that found in the constitutions of many other states. The Maryland Court of Appeals, Sachs wrote in his brief, “should apply the logic of Gideon in order to fulfill Article 19′s unredeemed promise of equal access to the courts.” Julia Gordon, a former senior counsel at the Center for Law and Social Policy who attended the Oct. 7 session, says the judges took these arguments seriously. “They could have left this aspect of the case on the cutting-room floor,” says Gordon, an advocate who has been working on poverty law issues for decades. “It seemed that each one of the judges had spent time thinking about these issues.” Gordon says Chief Judge Robert Bell was particularly active at the argument, posing questions to both sides, indicating his interest in the civil Gideon issue. Many think the case may have major implications for D.C. law as well. “I care a lot for Maryland, but I am also trying to pursue solutions to access-to-justice problems in D.C.,” says Gordon. “The timing is good for those of us who are looking to solve the dire needs in our own city.” Still, some observers think it may not be a good idea to enshrine a new right in American law, one whose contours may be unclear and one that some say will be very expensive and will bring more lawsuits to an already litigious nation. “Family law cases, by themselves, will make a good-sized government program, especially if you assume that often, both sides of the case will be indigent,” says Walter Olson, a senior fellow and legal scholar at the conservative Manhattan Institute. “Many of those who want a civil Gideon want it simply because it will give Legal Aid a permanent charter and a constitutional status. That helps if you work for Legal Aid and are competing for budget with other programs.” Covington’s Howard also says that experts, including many liberals, say family courts worked better many years ago when they were “less adversarial,” and that society would benefit from a return to that mode. The Public Justice Center’s Smith says he sees the right as extending not to all civil cases but to those “similar to criminal cases,” when a citizen’s basic rights or necessities of life are jeopardized. Sachs’ brief pointedly does not deal with the issues of the potential cost to Maryland taxpayers, saying they “are subjects for another day in another place.” The point of the case, he writes, is to establish the right to civil counsel, not to figure out who is going to pay for it.

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