A litigant has a better chance in court when represented by a lawyer than when representing themselves. That’s a fact. For just that reason, a person charged with a crime has a right to a lawyer. A civil litigant does not. Over the years, many in the legal profession have supported the notion of a civil Gideon, a right to free lawyers for civil litigants.
Gideon refers to a 1963 Florida criminal case, Gideon v. Wainwright, in which Gideon was charged with breaking and entering with the intent to commit a misdemeanor, which was a felony. At the time, lawyers were available only to defendants in capital cases. Gideon, who represented himself, lost and was sentenced to 5 years in prison. The US Supreme Court overturned the case, ruling that the Sixth Amendment’s guarantee of counsel is a fundamental due process right.
It’s easy to see why a “civil Gideon” is supported in criminal cases–because someone’s liberty is at stake. Yet other important things, like housing and child custody, are threatened in civil cases. That’s why so many litigants without the means to hire a lawyer represent themselves.
Courts though aren’t enthusiastic about self-representation by non-lawyers.
You’ve heard it before. Self-represented litigants are difficult to deal with. They’re unprepared for court and can be rude. Their numbers are huge and growing. They don’t do a good job of navigating the country’s inscrutable legal system. It goes on, but you get the point. Self-represented litigants are a problem for the legal system.
These statements are very familiar to lawyers and pro se litigants in the United States. However, the insights were gleaned from an article regarding the Canadian legal system, not that of the US. The difference is that in Canada, in May of 2017, the Canadian judiciary did something about it, or at least made a statement.
In Pintea v. Johns, a unanimous decision by Canada’s highest court endorsed principles which state in part that judges “should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.”
Is this a civil Gideon? No. It falls short of the goals espoused by proponents of a civil Gideon. There is no right to civil legal counsel in Canada, but the decision opens the door for other more effective means of justice for self-represented litigants.
Yet, the all-or-nothing approach whereby every low income litigant has an attorney has its disadvantages. An article published by the American Enterprise Institute listed three main points regarding a right to legal counsel for civil litigants:
- A Civil Gideon Would Be Expensive and Wasteful. Hiring lawyers for every indigent unrepresented criminal litigant vastly increased the expense of prosecution, including the number of attorneys hired and multiple appeals. In civil cases, the legal system is expected to respond similarly.
- A Civil Gideon Would Increase the Demand for Lawyers. If the costs to obtain a lawyer are lowered, there will be a greater demand for them. Attorneys will take on more meritless cases, further clogging the court system.
- Real Innocence May Be Lost With the Implementation of A Civil Gideon. Because of a predicted vast increase in meritless cases, parties with meritorious cases will have a more difficult time distinguishing theirs from the rest.
Whether true or not, these are big hurdles in a money-focused society like the U.S.
To some degree, states already provide assistance for low income people representing themselves. In New York, thirty-seven percent of low income civil litigants receive legal assistance. But what happens to:
- civil litigants who can’t afford a lawyer but aren’t considered low income,
- those who lose in court before they can gain access to a free attorney,
- the other fifty-three percent of low-income people who give up waiting for a lawyer, or even
- people who can’t get help from relatives and friends for fear of running afoul of laws regarding the unlicensed practice of law?
The notion of free lawyers for civil cases sounds good, and there are people that truly need it. Others, however, might simply need guidance or a lawyer to pop in on a one-time basis and write a difficult brief or speak at a hearing. In short, there should be a way to make self-representation less difficult.
Lawyers make a big difference in the success and fairness of a court case. It’s time that the judiciary gives self-represented litigants the tools to close the gap. Whether that comes in the form of a supporting set of principles, as exemplified by Canada’s highest court, technology or free lawyers, just get it done.
Fund Indigent Civil Defense With Increased Filing Fees
New models are needed to fund indigent civil defense. While the Sixth Amendment to the U.S. Constitution guarantees the right to counsel when you’re arrested for a crime, there is no similar guarantee when you’re sued. You can be wrongfully impoverished by court order simply because you can’t afford a lawyer, and these days, there’s a slippery slope between poverty and imprisonment.
Nearly every state provides some level of funding for legal aid programs to help the least wealthy defend themselves in court, and many law firms encourage their lawyers to volunteer a few hours a month. But you won’t find an agency or law firm anywhere that claims the demand for indigent defense has been met. The explosion in pro se litigation over the last decade suggests the demand is large and growing.
Florida was one of the first states to fund legal aid programs through the interest earned on client funds held in lawyer trust accounts. As interest rates plummeted, legal aid funding fell nearly 90% over the last five years. Earlier this year, former Florida Supreme Court justice Raoul Cantero and over 500 other lawyers asked the court to let the Florida Bar increase its annual dues by up to $100 to help close the gap.
The primary opposition? The Florida Bar, which believes society at large should bear the cost of indigent legal defense, not the profession.
I feel little sympathy for the Bar’s “poor me” rationale, but I agree lawyers shouldn’t bear the cost. There’s a better idea. Why not add a little to the cost of filing a lawsuit, especially for corporations that clog the courts with numerous cases? Some companies use the courts as debt collectors. They view civil litigation as a regular cost of doing business. Let’s impose the added fee on the 10th or 15th case filed by any one party in any 12-month period. Make those plaintiffs who abuse the system fund lawyers for poor defendants.
A Civil Gideon For New York City’s Housing Court
The legal profession has worked for decades to create an indigent right to counsel in certain civil cases — what they call a “civil Gideon.” This would ensure that everyone facing a serious civil claim, like loss of housing or other property, would get a lawyer when they couldn’t afford one. The goal is named after the Florida drifter whose prison sentence created a right to counsel in all criminal cases.
In 1961, Clarence Earl Gideon stood accused of stealing a few dollars from a pool hall cash register in Panama City. He couldn’t afford a lawyer. And with an 8th-grade education, he didn’t feel he could defend himself in court. So he asked the judge to appoint a lawyer to defend him. The judge declined, saying Florida law offered free lawyers only to poor defendants in capital cases. Gideon defended himself, badly, and was sentenced to five years in prison. But he learned the law fast, at least enough to appeal his case. His five-page handwritten petition for a writ of certiorari arrived at the U.S. Supreme Court in early 1962, and the court agreed to hear his case.
In Gideon v. Wainwright, 372 U.S. 335 (1963), the highest court in the land found that trying a criminal defendant without a lawyer when he faced a prison sentence violated his 14th Amendment rights. Gideon won a new trial. This time, with a lawyer appointed to defend him, he was acquitted. Fast forward 50 years, and we now know that civil claims against poor people grease their skids into the criminal justice system. For example, people who’ve been evicted and made homeless are at high risk of taking desperate measures that could get them arrested. They’re also at risk of being swept off the streets on trumped-up charges.
The need for a civil Gideon is growing fast as gentrification takes hold in big cities. In fact, New York City is part of a national pattern of rising rents that are forcing low-income people out of their homes. The city’s Housing Courts are a landlord’s playground, where 90% of tenants show up without a lawyer. Local community groups have fought this scourge for many years, and they’ve found a partner in Mayor Bill DeBlasio.
The city currently spends $60 million a year on lawyers and other services for tenants threatened with evictions. In what must rank as the best news so far this year, the New York City Council passed legislation early this month to mandate a low-income right to counsel in its Housing Courts. The City will spend an additional $33 million to ensure people get a fair shake during eviction proceedings. We can only hope the rest of the nation takes note. Numerous studies have shown that providing access to justice offers economic benefits to state budgets nationally.
This new policy will certainly slow down the process of gentrification, which could also help to stabilize the most vulnerable neighborhoods. At a minimum, it will provide a voice for tenants and make landlords more fair. And that’s good for all of us.