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  1. Civil Gideon Welcome! 2012 PBA Pro Bono Conference

  2. Civil Gideon • Term refers to a growing national movement to explore strategies to provide legal counsel, as a matter of right and at public expense, to low-income persons in civil legal proceedings where basic human needs are at stake. • Takes its name from Gideon v. Wainright, 352 U.S. 335 (1963) (establishing a right to counsel in criminal cases)

  3. The Supreme Court on Civil Gideon… • 2011 Case 1981 Case • The Supreme Court unanimously held in Turner v. Rogers that a “deadbeat” father has no automatic due process right to counsel in a civil contempt proceeding, even when he is facing jail time for failing to pay child support. However, Justice Stephen Breyer’s decision for the Court, joined by four other Justices, held that the Fourteenth Amendment does provide “substitute procedural safeguards” to parents who have not paid child support. For Failing to provide same, the five Justice majority vacated the civil contempt charge against him. • In 1981, the Supreme Court held in Lassiter v. Department of Social Services that while courts could appoint counsel on a “case by case” basis in cases involving termination of parental rights, there is no categorical right to counsel under the federal constitution when parents are in danger of having their parental rights terminated.  Then, going further, the Supreme Court created a presumption against appointing counsel in any kind of civil case in which physical liberty is not at risk

  4. American Bar Association Resolution • Movement was first officially recognized in a 2006 ABA Resolution, which stated in part: • 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.

  5. ABA 2010 Model Act and ABA 2010 Statement of Principles • After extensive additional research and evaluation, the ABA in August 2010 reaffirmed its commitment to a Civil Gideon right to counsel by adopting the: • ABA Model Access to Justice Act, and the • ABA Access to Justice Statement of Principles. • The Model Act and the Statement of Principles affirm that the scope and particular form of Civil Gideon should be determined by state and local jurisdictions.

  6. Pennsylvania Bar Association Resolution • Study • In 2007, the Pennsylvania Bar Association’s Legal Services to the Public Committee conducted a study (“Study”) and proposed that the Pennsylvania Bar Association adopt a resolution endorsing the concept of Civil Gideon in principle. • The Study recognized that adoption of such a resolution was only the first step in a multi-layered, cumulative effort to expand access to justice.

  7. Pennsylvania Bar Association Resolution • Study • The Pennsylvania Bar Association then accepted the Study and recommendation of the Legal Services to the Public Committee, and endorsed a Civil Gideon Resolution (“PBA Resolution”) stating in part: • RESOLVED, That the Pennsylvania Bar Association urges the Commonwealth of Pennsylvania to provide legal services as a matter of right 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.

  8. Study • Statistics • Legal aid professionals estimate that only 1 in 5 (20%) truly needy people in the Commonwealth with civil legal aid matters ever receive the assistance of a lawyer, whether from a legal aid provider or through pro bono efforts • More than half (over 50%) of the poor across the Commonwealth who make it to a legal aid office are turned away because of the limited resources, both public and pro bono, available to serve the neediest.

  9. Study • PBA Resolution Is Just the Start • Does not define which cases would be included • Does not address many questions of implementation • Expects that the right to counsel would be expanded in an incremental fashion, prioritizing those most basic human needs which are greatest • Would expand upon the existing multi-tiered system of legal aid and voluntary pro bono, incorporating this strong foundation and building upon it

  10. Study • National Statistics • Outlines basic findings relating to the state of access to justice in Pennsylvania, and current limitations on access to counsel. • Provides a survey list, by substantive legal area, of those states in which some form of statutory right to counsel in civil proceedings currently exists. • Identifies twenty different substantive areas from custody and domestic violence to housing discrimination and school attendance where some right to counsel has been recognized.

  11. Study • National Statistics • More than 35 states and the District of Columbia have some form of statutory civil right to counsel in one or more specific areas. • There is a patchwork quilt of areas in which a civil right to counsel is provided. • The most common areas in which a statutory right exists are custody and neglect and abuse (30 states). • The least common areas are individuals under disability to sue; SJIS petitions; release of mental health records, civil rights claims and school attendance (1 state each).

  12. Pennsylvania • Currently, Pennsylvania provides a right to court-appointed counsel for indigent people in a limited number of civil proceedings, which include child dependency cases, termination of parental rights, paternity, civil commitment proceedings for sexually violent delinquent children, and involuntary commitment pursuant to the Mental Health Procedures Act. The creation of the right to counsel in these cases was achieved through litigation or legislative action.

  13. Access to Justice In Tough Financial Times • State Access to Justice Commissions, state and municipal bar associations and Civil Gideon working groups across the country are studying not only the unmet need for representation, but the impact of the recent economic downturn on access to legal services. • The worse recession since the Great Depression has greatly increased the number of persons facing adversarial legal proceedings involving basic human needs who need, but cannot afford, counsel.

  14. Access to Justice In Tough Financial Times • Simultaneously, the same financial crisis that has led to the loss of jobs and increased legal need has dramatically reduced the funds available to legal services to represent the poor. • Agencies relying on Interest on Lawyer Trust Accounts (IOLTA) revenue for staffing and operations have faced dramatic cutbacks in the wake of lower interest rates • Support from state and local governments has been cut back, and looming budget shortfalls threatened even greater cuts in the near future.

  15. Access to Justice In Tough Financial Times • The paradox of expanding demand for legal services relating to basic needs such as housing and custody, and ongoing cuts in funding resources for legal services presents a daunting situation. • Yet, this paradox also makes finding new ways to expand access to justice through • study of specific legal needs • creative approaches to addressing varying needs • expanding the involvement of all stakeholders all the more compelling

  16. Access to Justice In Tough Financial Times • Caveats • In evaluating where legal representation is most needed, and where creative strategies need to be developed that incorporate stakeholders not previously involved, certain principles should be honored, including • Expanding the right to counsel should not interfere with existing legal services and pro bono programs’ ability to set their own priorities; Civil Gideon is not a critique of the good work of existing under-resourced providers, but rather an attempt to build on them.

  17. Access to Justice In Tough Financial Times • Caveats • Civil Gideon does not mean diverting existing funds from current legal services to the poor. Simply shifting funds or volunteers or administrative staff to new projects is not a increase in services. • The power of Civil Gideon efforts is the opportunity to move beyond the existing public interest/legal services support group and build new “buy in” and support from other groups, such as the judiciary, the private bar and the public.

  18. Access to Justice Strategy • Professor Russell Engler, New England College of Law and a national Civil Gideon scholar, proposes the pursuit of Civil Gideon as a component of an overarching access to justice strategy, in which it is essential to improve our understanding of precisely those scenarios in which counsel Is most needed. • This recognition is more important than ever when resources to address the need are more scarce.

  19. Access to Justice Strategy • Professor Engler suggests a three-prong approach. • Prong 1 is to consider revising the roles of judges, court-connected mediators and clerks; • Prong 2 is to evaluate and implement various forms of assistance short of full representation such as self-help centers and advice-only clinics, for pro se litigants; and • Prong 3 is to expand the right to appointed counsel in those areas where Prongs 1 and 2 are insufficient.

  20. Prong 1 • Revising the Roles of Judges, Court-Connected • Mediators and Clerks • Judicial canons often do not focus on cases involving pro se litigants and so provide little direct guidance on how active or passive judges should be; and • The focus on fairness and justice, in substance and not simply appearance, may require shifting the approach used with pro se litigants.

  21. Prong 1 • Revising the Roles of Judges, Court-Connected • Mediators and Clerks • The role of judges in advancing fairness and justice may need to be shifted to require that they: • Assist unrepresented litigants to make sure that all relevant information is before the court • Ensure that unrepresented litigants do not forfeit rights due to the absence of counsel

  22. Prong 1 • Revising the Roles of Judges, Court-Connected • Mediators and Clerks • Chief Justice Herbert P. Wilkins (ret.), Supreme Judicial Court of Massachusetts, has cited the work of that court’s Steering Committee on Self-Represented Litigants, and its recommendations, including: • Further guidance to judges on ethical conduct and useful courtroom techniques in cases involving pro se litigants • Additional simplified forms and self-help materials • Expanded use of technology • Experimentation with court service centers • A senior-level position to direct court-based policies

  23. Prong 1 • Revising the Roles of Judges, Court-Connected • Mediators and Clerks • The Idaho Committee to Increase Access to the Courts (2002) developed the following set of guidelines for judges handling hearings with pro se litigants: • Verify that the party is not an attorney; understands he is entitled to use an attorney to represent him, and chooses to proceed pro se • Explain the process • Explain the elements • Explain that the party bringing the action has the burden to present evidence in support of the relief sought

  24. Prong 1 • Revising the Roles of Judges, Court-Connected • Mediators and Clerks • Explain the kind of evidence that may be presented • Explain the limits on the kind of evidence that may be considered • Ask both parties whether they understand the process and the procedure • If non-attorneys are permitted to sit at counsel tables, they may provide support but should not be permitted to argue or to question witnesses

  25. Prong 1 • Revising the Roles of Judges, Court-Connected • Mediators and Clerks • Questioning by the judge should be directed at obtaining general information in order to avoid creating appearance of advocacy • Whenever possible, the matter should be decided and the order prepared immediately upon the conclusion of the hearing so it may be served on the parties • Source: Idaho Committee to Increase Access to the Courts (2002) http://www.ajs.org/prose/pdfs/idaho_protocol.pdf

  26. Prong 2 • Evaluate and Implement Various Forms of Assistance • Short of Full Representation • This prong “captures an array of assistance programs beyond the work of court personnel and short of full representation.” • Examples of such projects include: • Help Desks that provide • Information only • Information and legal advice, and/or • Limited representation.

  27. Prong 2 • Evaluate and Implement Various Forms of Assistance • Short of Full Representation • Limited representation, where assistance becomes representation, but only for part of a case, such as: • Family court emergency custody hearings • Family court custody hearings involving domestic violence or abuse/neglect allegations • Eviction hearings • Mortgage foreclosure hearings

  28. Prong 2 • Evaluate and Implement Various Forms of Assistance • Short of Full Representation • “Hybrid” models and pilot projects such as • Custody Conciliation project (Allegheny County) • Landlord Tenant Appellate Mediation program (Philadelphia County) • Family Court project (Lancaster County) • Mortgage Foreclosure Diversion project (Philadelphia County)

  29. Prong 3 • Expanded Right to Appointed Counsel/ Full • Representation • Argues that where revised roles for judges and court personnel, and the various limited representation or assistance programs fall short, “we can no longer accept the denial of access and routine forfeiture of rights as acceptable outcomes” and • In those situations, “we must recognize and establish a right to counsel in civil cases.”

  30. Prong 3 • Expanded Right to Appointed Counsel/ Full • Representation • Argues that three important realities shape the discussion of when full representation is needed: • The scope of the right to counsel is directly related to the effectiveness of the first two prongs (revised roles of court personnel; and various help desks, limited representation models and hybrids); when these steps are effective, full representation may not be needed • The greater the imbalance of power between litigants, the more extensive the assistance will need to be • The status quo is not working, as litigants often forfeit important rights due to absence of counsel

  31. Philadelphia Bar Civil Gideon Task Force • Formed in 2009 • Endorsed development of pilot projects in eviction and mortgage foreclosure defense, and custody cases • Developed an education and communications plan • Created a website to report developments across nation • Created three working groups: • Housing • Family Law • Education and Communications

  32. Philadelphia Bar Civil Gideon Task Force • Composed of judges, public interest and private bar attorneys, law professors and other interested parties • Task Force meetings alternate with working group meetings to ensure regular reporting and follow-up • Activities locally and new developments nationally reported and publicized in Bar media, including newspapers, magazines and on-line • Tracks pilot projects, studies, analysis of Civil Gideon activities across the country

  33. What Cost-Benefit Analysis May Ultimately Show • Why a funded array of Civil Gideon services expands access to justice • and • Enhances the economic and social well-being of society as a whole

  34. Recap • Building the case for Civil Gideon step by step • Modeling (court projects; help desks; pilot projects) • Analysis (what works well, what requires more) • Education (legal community; general public) • Persuasion (study results; cost-benefit analyses) • (Ultimately) Funding

  35. Recap • Process • Creating a Civil Gideon right to counsel is likely to require a combination of • Short-term efforts, such as designing and implementing help desks and pilot projects • Intermediate-term efforts, such as tracking projects as they unfold, collecting statistics and case reports and analyzing effectiveness and impact • Long-term efforts to educate, persuade and ultimately gain funding, particularly for providing a genuine right to counsel in those matters where it is essential (Prong 3 of the Russell Engler model)

  36. Recap • Components • Revised roles of court personnel and creation of court-based pilot projects such as help desks • Designing and implementing limited representation and mediation hybrids in areas of fundamental need such as housing and family law/custody • Full representation where nothing less will work

  37. Recap • Reaching All Stakeholders • Attracting and cultivating the support of all other stakeholders, such as: • Municipal and state governments • Community-based organizations • Non-lawyer professionals (accountants, housing counselors, social workers, etc.) • Universities and law schools • Private entities (such as banks, lenders and borrowers in mortgage foreclosure)

  38. Recap • Other Essential Elements of Successful Proposals • Tracking projects as they unfold • Statistics • Case reports • Analysis and evaluation • Cost-benefit analysis

  39. What Can Citizens Do? • Be concerned about the lack of access to justice • Promote Civil Gideon as a benefit to society as a whole • Let others—friends, representatives, media—know of your concern!

  40. Questions & Answers Thank you for attending!