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“If you are unable to afford a lawyer, one will be appointed for you.”
This guarantee of counsel – bedrock of the American criminal justice system – is conspicuously absent from the nation’s civil justice system. In civil cases, people of limited means have no such right – not even when a home is threatened or a child is taken away; not even when the complexity of the matter guarantees an unfair result; and not even when the other side has counsel. Publicly funded (or other “free”) counsel meet no more than 20% of the need, and the lack of counsel disproportionately affects families of color, families headed by women, children and the elderly. In our adversarial system, having a lawyer makes a difference, which is why those who can afford to hire lawyers usually do so.
Although the landmark case of Gideon v. Wainwright in the United States Supreme Court established the right to counsel in criminal cases, that right has not yet been recognized for civil cases. And in the state of Maryland, the system of legal services for the poor is so overburdened and underfunded that those in need of legal assistance usually have no choice but to represent themselves.
The Public Justice Center seeks to eradicate this injustice by seeking the recognition of a constitutional right of a poor person to be appointed counsel -- a "civil Gideon" right. In issues involving child custody, domestic disputes, access to healthcare, or other civil disputes involving fundamental interests and basic rights, to deny someone a lawyer is to deny him or her justice. Civil Gideon would grant those who cannot afford it the right to legal representation in these critical civil cases.
The PJC is aggressively committed to seeing Civil Gideon become a reality. Our attorneys -- in partnership with attorneys from Wilmer Cutler Pickering, LLP and led by the Honorable Stephen H. Sachs -- conducted research over several years that resulted in the filing of the case of Frase v. Barnhart before the Maryland Court of Appeals. It was the first appeal to seek the right to counsel in civil cases. By a 4-3 vote, the Court declined to reach the Civil Gideon argument.
The narrow margin of the decision is what makes it so important to keep fighting for this case. Justice should not be only for those who can afford it. To learn more, read the brief. To contribute to upcoming initiatives, visit our donor page.
Equal Access to Justice Means The Poor Must Have a Right to a Lawyer Too
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National Coalition for a Civil Right to Counsel NCCRC)
The PJC is a national leader in advocating for a civil right to counsel. In addition to seeking to establish a right to civil counsel under Maryland’s Declaration of Rights, the PJC organized and leads the National Coalition for a Civil Right to Counsel (NCCRC). The NCCRC’s mission is to “encourage, support and coordinate advocacy to expand recognition and implementation of a right to counsel in civil cases.” The PJC now partners with four other national organizations to provide leadership and technical assistance to the NCCRC: the Brennan Center for Justice at NYU School of Law, the Committee for Indigent Representation and Civil Legal Equity (CIRCLE) at the Northwest Justice Project, the Sargent Shriver National Center on Poverty Law, and the Standing Committee on Legal Aid and Indigent Defendants (SCLAID) of the American Bar Association (ABA). The overall coalition objectives are:
1. Conducting outreach and strategic planning;
2. Advancing campaigns through litigation, public policy advocacy, and public education;
3. Conducting social science research;
4. Continuing to strengthen the National Coalition for a Civil Right to Counsel; and,
5. Enlisting local, state, and national bar association support.
Each of the partner organizations has agreed to lead particular objectives. The PJC and Brennan Center lead advancing local campaigns, and the PJC leads in developing the coalition itself, including acting as fiscal agent for the whole coalition. During the past year, the PJC led in the following activities:
- Provided litigation support and strategizing assistance to local advocates;
- Provided litigation support and strategizing assistance in three cases around the country which presented issues involving civil right to counsel in termination of parental rights, dependency, and truancy proceedings;
- Provided assistance and technical support to civil right to counsel task forces formed by the state bars or Access to Justice Commissions;
- Provided input and support to the ABA Civil Right to Counsel Task Force's development of drafts of a Model Act and Basic Principles for implementation of a right to counsel;
- Continued to pursue recognition of a civil right to counsel under the Maryland Declaration of Rights, following the decision in Frase v. Barnhart, 379 Md. 100, 840 A.2d 114 (2003);
- Continued to utilize the help of law firms from around the country to produce authoritative memoranda of law analyzing constitutional, statutory, and case law in more than 40 states;
- Collaborated on an "informational memo" providing, in a Q&A format, answers to questions asked by civil justice activists about the consequences for local communities of embracing a civil right to counsel. Endorsed by the National Legal Aid and Defender Association;
- Published Lassiter Notwithstanding: The RIght to Counsel in Foreclosure Actions and Going Public: The State-Action Requirement of Due Process in Foreclosure Litigation, appearing in the January/February 2010 issue of Clearinghouse Review and authored by John Pollock, PJC's attorney who is the ABA Section of Litigation's Right to Counsel Fellow;
- Published an article for the ABA Young Lawyers Division January 2010 newsletter about the background of the civil right to counsel issue and the work of the National Coalition for the Civil Right to Counsel (NCCRC);
- Submitted testimony on the potential impact of a right to counsel on the affordable housing crisis in the U.S. to the U.N. Special Rapporteur on Adequate Housing at a conference by the National Law Center on Homelessness and Poverty;
- Helped to secure a unanimous resolution from the Maryland's Access to Justice Commission endorsing a civil right to counsel in basic human needs cases and engaged a subcommittee on a process of developing implementation best practices for Maryland.
- Served as panelists at a conference hosted by the University of North Carolina's Center on Poverty, Work, and Opportunity;
- Hosted and facilitated two right-to-counsel panels at the 2009 NLADA conference;
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