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Giacalone on "Civil Gideon"

As we've had occasion to note in the past (scroll), there's a campaign underway to create a broad-based new entitlement for low-income persons (and perhaps others as well) to be provided with lawyers at public expense to handle a variety of civil matters, and not just criminal defense matters as provided in the Supreme Court's decision Gideon v. Wainwright. David Giacalone's critique of the idea is worth reading:

Like the proponents of the ABA�s Civil Gideon Resolution (e.g., here and here) [attorney Paul] Martinek argues that no lawyerless litigant can get a fair hearing when the other side has a lawyer � and that having a lawyer will ensure such fairness. Although he mentions that there are �some practical downsides� with Civil Gideon (such as its �staggering� cost, difficulties telling who is eligible, and disincentives to settle when you have a free lawyer), Martinek concludes that �something� must be done and:
�The issues that are litigated in family courts - especially those involving the right to see and help raise one�s children - are too important to be dealt with by emotionally overwhelmed mothers and fathers with no training in the law.�

I believe we need to ask whether it makes more sense to increase the importance of lawyers in family and housing courts or to work much harder to structure the judicial system so that most individuals can achieve fair and effective justice without lawyers (see our About page). Based on my experience as a self-help law proponent, a legal ethics watchdog, and an observer of the legal profession�s attitude toward access to justice, and after spending a decade in a law practice focused on Family Court, here are some of the problems that I have with the lawyers-for-all-style Civil Gideon:

1. It looks far too much like an Attorney Employment Assurance Plan for underemployed members of the Main Street bar. In addition, Civil Gideon is backed by some groups that resisted court-based self-help centers, for fear they would undermine legal aid budgets, as well as by private lawyer groups who resisted both self-help centers and alternative dispute programs at courts, for fear that they might lose clients or have cases shortened by settlements.

2. It assumes that lawyers can do a better job than reasonably-informed laypersons in presenting cases that involve their families (or sustenance and housing conditions). This infantilizes litigants and denigrates the intelligence of the vast majority of pro se litigants, who know far better than any lawyer the facts of their situation and are capable of telling their stories to receptive judges. It also contradicts studies of family court lawyers; see below)

3. It assumes that two opposing lawyers will more quickly and fairly settle a case than will unrepresented parties. (As Law Guardian for hundred of children in family court, I saw far too many cases where lawyers dragged out cases, inflamed conflict, misunderstood the basic needs of the parties.)

4. It assumes that Assigned Counsel will competently and diligently represent their low income client (see discussion below).

5. It overlooks the fact that hiring an attorney virtually impoverishes, or is simply beyond the financial ability of, a very large portion of Americans who are not considered poor, but are far from rich � and, unlike self-help programs, Civil Gideon makes no accommodation for these people. [update: March 10, 2007: see our post �the dis-accessed middle class of North America,� which discusses the situation in Canada, as seen through the eyes of their Chief Justice.]

6. It overlooks the fact that every single day thousands of low-income Americans are able to receive a fair hearing of their disputes in Family (and other people-oriented) Courts � and that self-help centers and pro se programs for judges and court staff are spreading and becoming more and more effective.

Giacalone goes on to detail problems with the existing system of publicly assigned counsel. The whole post, which includes a response from attorney Martinek and other reader comments, is here.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.