For more than half a century, those going through the criminal courts have been given access to legal representation, no matter their wealth or social status. In contrast, last year in Connecticut, almost 25 percent of all civil cases had at least one self-represented litigant.
The conversation about how to tackle the issue has been discussed for years, and this year a plan to address the problem may become a reality.
State Sen. Martin Looney, D-New Haven, introduced a bill during the 2016 legislative session that would create a task force to determine the best way to address the increasing number of people representing themselves. An idea that has gained traction nationwide is for states to launch “Civil Gideon” initiatives that would guarantee parties in civil cases legal representation, just as the U.S. Supreme Court’s 1963 ruling in Gideon v. Wainwright guaranteed lawyers for all criminal defendants.
“The task force is designed to pull together and look at the issue of whether we in Connecticut, being the progressive state that we are, should establish a civil right to counsel,” said William Clendenen, president of the Connecticut Bar Association. If the answer is “yes,” the group will tackle how it should be done, according to Clendenen.
The bill, HB 426, would assemble a task force of more than 30 people, including representatives from the Attorney General’s Office, the Office of the Public Defender, big and small law firms, towns and cities, and the deans of each of the state’s law schools.
Steven Eppler-Epstein, executive director of Connecticut Legal Services, said the task force’s purpose would be to “look at the broader picture for those who aren’t the absolute poorest and people whose lives are not at stake, but still have significant legal issues and are losing simply because they don’t have a lawyer. … That’s not the system anyone wants to see.”
According to the bill’s language, the task force’s recommendations would include ways to “secure access to justice and legal representation in civil matters by increasing the availability of legal assistance with civil matters throughout the state; and encourage increased pro bono service by the state’s legal community.”
The task force would be charged with creating a report and presenting their recommendations to the General Assembly no later than Dec. 15.
“There are huge numbers of people who can’t afford lawyers and have very significant problems,” Eppler-Epstein said. “Legal services programs try to help those who are very poor, but we can’t help all of those people. We try to triage and help people where they have the biggest crises and can make the biggest difference.”
According to data from the Judicial Branch, in fiscal year 2005-06, 19 percent of all civil cases involved at least one person representing themselves. Over the last decade, that has increased to 24 percent. The instances of one pro se litigant in family cases is much higher, however, and in fiscal year 2012-13, the last year with available data, 85 percent of cases involved one self-represented party. In housing matters, 75 percent of the time at least one party is self-represented.
According to Looney, the Senate president, these include cases of the “utmost importance, where decisions are being made with regard to the rights of individuals that carry the utmost gravity.”
“Each and every day, in housing court without a lawyer, Connecticut families face the prospect of eviction and potential homelessness,” Looney said in a statement. “Each and every day, in family court without a lawyer, restraining order applicants are striving to be made safe, yet are left to fill out the complicated legal applications by themselves, and navigate the legal system without representation. … As things now stand, the unmet needs of Connecticut residents for legal representation have outstripped the intensely dedicated efforts of the Judicial Branch and the Connecticut Bar Association to meet that demand.”
Clendenen points toward the recession in 2008 as a reason for the increase. “The economic conditions have worsened for many people in Connecticut and have not recovered from the 2008 recession,” he said. “All of these things have an impact on the citizens, particularly people in urban areas, but also places like Putnam and Danielson in the rural areas.”
A Judicial Branch report found that Connecticut Legal Services were only able to open 3,400 new cases of the 19,000 requests received in 2013-14.
There is another bill before the legislature that would immediately expand funding for legal services to the poor by increasing funding for Connecticut’s legal aid programs so they may be able to assist more people.
According to Clendenen, the work done by legal aid programs and attorneys who give “thousands of hours” of pro bono work is “just a drop in the bucket” compared to all those who need legal assistance.
Clendenen and Timothy Fisher, dean of the University of Connecticut School of Law, agree that by the state committing to provide more legal aid to those who need it, work will also be created for young lawyers just out of law school.
Since the 1963 Gideon ruling, the right to counsel has been a guarantee for those in the criminal courts, but there is no such guarantee for those wading through the complex civil courts. More and more, states across the country have been discussing the Civil Gideon proposals, according to the National Coalition for a Civil Right to Counsel, which tracks legislative action in each state.
“The issue in Connecticut is that there is a crisis in lack of representation for economically disadvantaged people and it has been getting worse,” Clendenen said. “The need is increasing and the resources are decreasing.”
According to Clendenen, paying for representation in civil cases would ultimately save taxpayers money. He pointed to eviction proceedings as an example, noting that those with representation are far more successful in avoiding eviction than those who go it alone.
“Then you don’t have foster care costs, you don’t have homeless shelter costs, you don’t have disruption in the school system with the kids,” Clendenen said.
Fisher said he hopes the task force comes away with a consensus by the end of the year “that we are hurting our state’s economic future by leaving people as victims without the help that our wealthy citizens and companies rely on.
“If there is a consensus on that fundamental point, we will then be able to find a pathway to identify where the areas of greatest needs are,” Fisher said. •