In 1963, in the matter of Gideon v. Wainwright, the U.S. Supreme Court unanimously held that the Sixth Amendment to the U.S. Constitution mandated the right to counsel in criminal cases for defendants who were unable to afford an attorney.

The Supreme Court explained, “From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”

A movement to provide greater legal representation for the poor in certain civil cases — known as “Civil Gideon” — began to take shape in the 1990s and has recently gained increased attention and support. In August 2006, the American Bar Association House of Delegates unanimously passed Resolution 112A, which resolved:

“That the American Bar Association urges federal, state, and territorial governments to 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, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction.”

The Pennsylvania Bar Association followed suit one year later in September 2007, passing a resolution urging the commonwealth to provide a right to legal counsel to low-income persons in adversarial proceedings where basic human needs are at stake.

In early 2009, then-Chancellor Sadie Ladov of the Philadelphia Bar Association appointed a Task Force on Civil Gideon, and thereafter, in April 2009, the same group’s Board of Governors unanimously endorsed a resolution charging that task force with investigating and considering all aspects of an effective system of Civil Gideon.

YL Editorial Board

Peter Buckley
Kristine L. Calalang
Mary Doherty, chairwoman
Patrick Duffy
John Encarnacion
Clarissa Freeman
Eileen K. Keefe
Kassem Lucas
Michael O’Connor
Matthew Ryan
Djung Tran

The Editorial Board of Young Lawyer is composed of members of the legal profession. They serve voluntarily and are independent of Young Lawyer. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. Members of the legal community are invited to contribute signed op-ed pieces.

Just this week, the Philadelphia Bar Association hosted a Chancellor’s Forum on Civil Gideon featuring Professor Russell Engler, the Director of Clinical Programs at New England School of Law and an expert on the subject of Civil Gideon. As demonstrated by the “standing room only” crowd that attended the forum, the topic of Civil Gideon continues to gain momentum.

While we do not believe that every indigent litigant is entitled to appointed counsel in all civil lawsuits, as outlined below, we do believe that counsel should be appointed where basic human needs are at issue (particularly in certain housing, custody and immigration matters).

Civil Gideon supporters cite reports consistently showing that 70 to 90 percent of the legal needs of the poor go unaddressed because of their inability to afford representation. Those indigents who do participate in the judicial process often proceed alone and without adequate legal advice. In these circumstances, poor litigants routinely and unknowingly forfeit their legal rights, substantially increasing the risk that cases are decided not on the basis of the facts and the law, but instead on the basis of resources. In addition, the presence of unrepresented litigants in the court system causes tremendous burdens for judges, court staff and private counsel.

Criminal proceedings place one’s freedom at stake and, thus, in addition to specific constitutional safeguards, clearly justify the right to appointed counsel if one cannot afford to hire an attorney. Certain civil proceedings, however, likewise involve important rights, yet carry no guarantee of counsel.

For example, one’s parental rights may be altered or eliminated in child custody proceedings; one’s access to shelter may be impacted by eviction and foreclosure proceedings; and one’s right to remain in this country may be taken away through immigration enforcement actions. Are these rights no less deserving of protection?

The Civil Gideon movement is often faced with the question of where to draw the line. In view of the costs associated with the appointment of counsel, the line must be drawn with an eye toward budgetary constraints, which are especially sensitive during these difficult economic times, but also with an understanding that the appointment of counsel may save money in other areas. So often the “sliding scale” argument raised by opponents of change leads to inaction.

Engler explained during the recent forum that we should begin to more tangibly explore Civil Gideon using pilot programs in situations that clearly deserve the attention of counsel — for example, where basic human needs are at stake and an imbalance of power caused by the absence of representation has been shown to negatively effect outcomes. Once those instances are explored and Civil Gideon generates a track record of success and failure, we can more effectively sketch out the boundaries of the right to counsel in civil cases with greater context, consistent with societal priorities, rights, values and interests.

We agree with the American Bar Association that appointed counsel is most needed where basic human needs are at stake, particularly proceedings involving child custody and access to shelter. In these cases, access to trained counsel is often necessary to counter an imbalance of power in which an indigent litigant is opposed by the government or perhaps a lender or landlord with access to experienced representation. Where such power imbalances exist, indigent litigants often forfeit basic human rights and jeopardize basic human needs.

It is here where the expenditure of resources to appoint counsel is most warranted by not only the protection of these important rights but also by the inevitable cost savings to the system — for example, when fewer people lose their shelters to eviction or foreclosure, fewer resources are needed to care for the homeless or to manage bank-owned real estate.

We also believe that immigration proceedings involving deportation deserve the attention of a trained advocate, especially where children are involved. Once deportation is ordered, the consequences are life-changing. Should the government really be able to claim victory in these situations on the basis of a forfeiture of rights?

Microsoft Corp. has recently sponsored a program called “Kids in Need of Defense (KIND)” to provide pro bono representation to children in navigating the immigration system, recognizing the importance of counsel in immigration matters.

Pennsylvania already guarantees representation in some civil situations, ensuring counsel for people facing an involuntary mental health commitment and for children during proceedings involving the involuntary termination of parental rights if one or both of the parents contest the termination. But Pennsylvania’s low-income citizens are not guaranteed counsel in housing matters, in immigration removal proceedings, or in most child custody situations.

We call upon our state and federal legislators to expand the civil right to counsel for indigent litigants to custody proceedings involving the termination of parental rights, eviction proceedings and immigration removal proceedings.

The family and housing courts are overwhelmed with unrepresented litigants who are unfamiliar with the processes and their legal rights. Those litigants are at great risk of unknowingly waiving their rights and protections.

In some situations before those courts — for example, where a guardian ad litem is appointed for a child in connection with involuntary termination proceedings — a power imbalance is created. Even though guardians ad litem safeguard the best interests of the child and are not necessarily acting adversely to the parents, the decision not to provide counsel to their parents has created a power imbalance that likely affects the outcome of these important cases.

We believe that where this power imbalance occurs (e.g., where guardians ad litem are involved), counsel should be appointed for the child’s indigent parents. At this time, we are not prepared to call for legislation providing counsel where there is no appointed counsel otherwise involved (for example, where two parents merely litigate a custody dispute among themselves).

Regarding immigration cases, in its 2006 report to the ABA House of Delegates, the American Bar Association’s Commission on Immigration recommended that the ABA support the “due process right to counsel for all persons in removal proceedings.” In its recommendation, the commission cited the complexity of the proceedings, the disparity in case outcomes depending on whether the asylum seeker has legal representation, the hardships facing those seeking asylum, the systemic costs involved due to the lack of representation, and the potentially small number of persons eligible for relief. We agree with the commission’s recommendation.

We appreciate the reservations to the full embrace of Civil Gideon.

First, without conceding the issue, we realize that there might not be a constitutional right to counsel in civil lawsuits. There is a plainly expressed right in the Sixth Amendment limiting the government’s power to prosecute someone criminally. (Relatedly, if there is a constitutional right to counsel in certain civil cases, would unsuccessful litigants thereafter collaterally attack a loss as a constitutional violation, blaming inadequate counsel?)

Second, while statistics might show the involvement of counsel improves the results, one must wonder how precisely to interpret those statistics. All things being equal, does the mere presence of an attorney guarantee victory? Or is it fair to conclude that due to scarce resources and attorney time, the pro bono and legal aid societies focus their scarce resources on the more meritorious claims?

Third, it seems fair to presume that under the current system, the presence of counsel in such civil cases indicates to the court and to opposing counsel that there is some merit to the indigent litigant’s claim. What effect to those meritorious claims would be felt were the right to counsel to extend indiscriminately to civil cases? Would there be a flood of cases, meritorious and meritless alike, if legal access is suddenly costless to the client? (Although, we would certainly hope the attorneys would recall their professional ethical obligation not to pursue frivolous claims or defenses.) How would those litigants with meritorious claims signal to the court and opposing counsel that their action is different from the rest?

We believe, as Engler points out, that Civil Gideon must be considered in the context of a larger access to justice strategy. Appointed counsel is only one way to counter power imbalances in the court system, and an expensive one at that. Pro bono programs, self-help seminars and the outstanding work performed by legal services attorneys already play an important role in protecting the rights of the poor in the legal system. Where these programs work, they should continue to be funded and expanded. Where they fall short, appointed counsel should be considered as an option where it will make a difference in protecting basic human rights and needs.