PDF Ebook The Tipping Point on The Scales of Civil Justice
The right to counsel in civil cases—metaphorically known as Civil Gideon1 has gained traction in segments of the legal community. State legislatures enact limited rights to counsel.2 Academics debate and discuss the right in their traditional forums—lectures, classrooms, and law reviews.3 Bar associations and other legal groups hold conferences and issue policy statements.4 Lawyers litigate, proposing seemingly persuasive legal theories, although with modest success.5 With very few exceptions, courts as an institution have lagged behind in recognition of the right.
The gains in right to counsel in civil matters have thus far been legislative, and while significant, adoption has been slow, less than cohesive or thematic, and inconsistent across the country. Patchwork recognition and implementation by legislatures form a fragile and uneven safety net. Lawyers are available for appointment in some jurisdictions formatters such as child custody, orders of protection, civil contempt, involuntary commitment, and guardianship. The availability of counsel is far from comprehensive. The preferred path to a comprehensive right to counsel in civil matters goes through the United States Supreme Court. The Court refused to recognize a due process based constitutional right to counsel in a civil matter in Lassiter v. Department of Social Services6 and has not spoken on the issue since. The conventional wisdom within the community of Civil Gideon supporters is to avoid federal courts.7 The assumption underlying this cautionary admonition is that the current Supreme Court is too “conservative” for such a “liberal” idea.
Despite this conventional wisdom, a singular holding by the Supreme Court identifying a right to appointed counsel in civil matters in the United States Constitution would change the landscape in an instant. The question in the states would turn from “why” to “how,” as implementation of the right would be the order of the day. Although the process of execution would vary, the direction would be more uniform across the states. We are not without a model, as states created systems for providing counsel in criminal cases since the Gideon decision in 1964. This is not to infer the task would be easy; we continually work to improve indigent criminal defense services in this country.8 We have failed to create and implement cost-effective public defense systems that consistently meet standards of competency, let alone standards of excellence. While legitimate debate following a right to counsel holding would address the difficulty of accomplishing such a daunting task which has been left uncompleted on the criminal side for more than forty years, this alone is not a sufficient reason for burying the concept of civil right to counsel. Without the first step—establishing the legitimacy of right to counsel the debate is academic.
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PDF Ebook The Tipping Point on The Scales of Civil Justice
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