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State leads effort to restore right to counsel under common law

State leads effort to restore right to counsel under common law

May 19, 2006
Special to The Daily Record

Even the most casual watcher of Law & Order knows that anyone charged with a crime and facing jail will get a lawyer. That’s because the Constitution requires states to provide an attorney to those who can’t afford one.

So it follows that the right to counsel applies to those faced in similarly dire situations: the loss of a child over a charge of neglect, or their home through foreclosure, or their retirement pension and health benefits.

At least, that’s what 60 percent of Americans believe.

And they are 25 percent right: If they face jail time, they will get legal counsel. Otherwise, in most civil matters such a constitutional right has not been recognized — and usually they are on their own.

It wasn’t always this way. And a national movement is underway to restore the right to counsel in critical civil legal matters.

“The English common law right to appointed counsel, provided by the state to parties in civil matters, dates from an Act of King Henry VII in 1494,” said Debra Gardner, legal director of the Public Justice Center. “The rights of English subjects were transported to the American colonies. The Maryland legislature, after the Revolution, specifically adopted the English common law into the law of the new state.”

Yet the law requiring judges to appoint counsel to parties needing assistance in civil cases fell into disuse in Maryland and elsewhere. Why that happened is unclear, said Gardner, speaking at the 2006 Edward V. Sparer Symposium at the University of Pennsylvania Law School on March 28.

Her personal theory?

“It was not in the interest of those holding the reins of power for this right to be known and widely exercised,” she said. “And a right not known has no power.”

To rectify matters, more than 100 advocates in at least 35 states throughout the country are participating in the National Coalition for a Civil Right to Counsel. Gardner serves as a coordinator for the coalition, with funding from the Open Society Institute.

“Advocates around the country are variously focusing on state constitutional arguments of due process, equal protection, common law, and the inherent powers of the court to provide justice,” Gardner said.

Some proponents are seeking to establish a right to counsel through state legislation, such as the California Equal Justice Commission of the California State Bar. Nearly half the states have established broad-based access to justice commissions that are promoting “Civil Gideon” and other approaches to expand legal aid and access to justice for all persons within their states, Gardner added.

American Bar Association President Michael Greco, the keynote speaker at the Sparer Symposium, enthusiastically backs those efforts.

“We need a serious national discussion about the need for legal counsel in serious matters — family, shelter, health, sustenance and safety,” Greco said in his speech. “We must assure that everyone in our nation has an advocate at their side in these cases.”
Greco also addressed the issue of how much a system that provided civil counsel to low-income people would cost.

“We don’t know, but we’re looking at it,” he said. “What is most important is the principle — our highest ideals and values. It’s a matter of priorities. We think nothing about spending billions and billions and billions on a war. Let’s reorder our priorities to address a problem in our country that is as serious as creating a democracy abroad.”

Greco has created an ABA Presidential Task Force on Access to Justice with two Marylanders as members: Court of Appeals Chief Judge Robert M. Bell and former attorney general Stephen H. Sachs (lead counsel for the plaintiff on behalf of the Public Justice Center in Frase v. Barnhart, the 2003 decision which raised the issue of a right to counsel at the Court of Appeals; by a vote of 4-3, the court declined to reach the issue).
The ABA task force has two charges. The first is to promote and expand state-based access to justice commissions, which currently exist in 20 states (a figure the ABA president would like to see double over the next year).

The second charge is to explore the feasibility of establishing a right to counsel in certain critical civil areas. The task force will bring its recommendations to the ABA House of Delegates in August in Hawaii.

Lagging behind

Greco noted that the U.S. lags far behind many other industrialized nations which provide a right to counsel when an injustice would otherwise be likely to occur. He pointed to the Netherlands, Italy and South Africa, adding that Germany and France spend about two and a half times as much as the U.S. on civil legal services.

“To match Germany and France, the U.S. would need to spend approximately $1.6 billion annually — or about $10 billion annually to catch up with England, which spends about 17 times as much as the U.S. on civil legal services,” Greco said.

Many members of the Maryland bar and judiciary will learn more about England’s system next week at the Legal Aid Bureau’s annual awards and recognition breakfast. The guest speaker, Jonathan Lindley, is executive director of service design for the Legal Services Commission for England and Wales.

Lindley will discuss how the commission ensures that low-income people in England and Wales get the information, advice, and legal help they need to deal with a wide range of both civil and criminal problems.

He'll also talk about how the commission operates and is funded. The scheme provides totally government-funded private attorneys, advice bureaus, and other advice providers.
The glimpse at the U.K. model should provide fuel for thought and, perhaps, raise the question that it’s time for a second American revolution — this time to regain our former English right to counsel in civil cases.

Robert H. Rhudy, the former executive director of the Maryland Legal Services Corp., is a consultant and attorney in private practice in Baltimore. He can be reached at bobrhudy@yahoo.com. Joe Surkiewicz is communications director at the Legal Aid Bureau. He can be reached at jsurkiewicz@mdlab.org.

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