A Right to Counsel in Which Civil Cases?

In August 2006, the American Bar Association House of Delegates unanimously voted:

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.”

One of the premises of the ABA resolution, and the current impetus toward recognition of a right to counsel in civil cases, is that not all civil cases should trigger the right.  But which ones?  The ABA resolution identified a sole criterion – whether basic human needs are at stake.  Other selection criteria were not stated.  No doubt, many proponents would like to read the resolution as a commitment to providing lawyers in every case that would determine a person’s shelter, sustenance, safety, health or child custody – and certainly involuntary detention.  But the resolution can also be read as leaving the door open to the use of additional criteria that would exclude some civil matters even though these kinds of human needs and interests are involved.

Turner v. Rogers rejected the stakes of the interest involved as the sole selection criterion for invoking a due process right to counsel.  All nine Justices agreed that even though the human interest in personal liberty was at stake, it was overridden by other considerations.  The majority discussed three considerations:  (1) the straightforwardness of the rules of decision; (2) the unrepresented status of the opposing party; and (3) the adequacy of methods other than providing appointed counsel for avoiding incorrect decisions; and the Court’s reliance on Matthews v. Eldridge, 424 U.S. 319, 335 (1976), suggests another: (4) fiscal and administrative burdens on the government if it must provide counsel at public expense.

We are, I think, beyond the point where it is feasible to deny that any considerations other than the human interest at stake are relevant as selection criteria.  To the extent federal constitutional due process is the basis for the right, precedent leaves no room to deny that other criteria must be considered.  The Turner majority proceeds directly from the criteria for “what process is due” in Matthews.  While the first Matthews criterion, “the nature of the private interest that will be affected,” encompasses the ABA resolution’s criterion, the second Matthews factor is “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;” and the third is “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”  (Id.)

There is good reason to conclude, as John Pollack says, that state courts are more promising venues than federal courts for seeking recognition of the right.  That said, we should not expect states to differ with federal precedents about the relevance of the second and third Matthews criteria for assessing procedural due process claims.

The same is true, and more so, when we argue to executive officials and legislators that it would be good policy to provide publicly funded counsel in selected civil matters.  There are many valid arguments that can be made that, on the merits, the additional Turner considerations do not outweigh the reasons for providing counsel in civil proceedings with important human interests at stake.  But I cannot think of a persuasive argument why either a court or a legislature would accept an argument that those considerations are irrelevant.

On the merits of the Turner considerations, here are a few thoughts:

1.  A relatively straightforward rule of decision? The Turner majority says the rule – “can the father afford to pay?” – is a straightforward a question of fact about the father’s “financial circumstances.”  But Justice Thomas sees the judge’s role differently – as deciding whether it will be effective to impose the threat of jail to motivate a deadbeat dad pay, as the father in Turner had done in response to three previous contempt proceedings.  As Michael Millemann points out, the father said he had no money because of “drugs,” and the judge offered him work release if he got a job.  This is relevant to ability to pay if the real issue is the father’s willingness to find the money.  (If so, it is a question that cannot be answered by reading the completed blanks on a questionnaire.)

Even if the rule of decision is straightforward, it makes more sense to ask the question the way Matthews did:  how much greater is the risk of error without, compared to with, a lawyer?  That is a distinct question from the nature of the interest at stake, and it is clearly a relevant question in any serious debate about a providing lawyers at public expense.

2.  What if the opponent is also unrepresented? Turner has made this an unavoidable part of the debate.  Rightly so.  Legal aid and pro bono lawyers who find themselves opposing unrepresented individuals understand that it is an ethical and practical challenge to do a good job for one’s client without the result being an injustice (procedural or in substance) to the unrepresented opponent.

As Richard Zorza notes in his post, “Turner’s Trombone Blows for Every Self-Represented Litigant,” after Turner, the interests on both sides must be considered, where both are unrepresented.  This goes a little further than Turner. The majority says that providing a lawyer to the father would raise the risk of one-sided proceedings – but ignores the possibility that both sides could be entitled to the help of appointed lawyers.

Moreover, how does the court implement the right where both parties are private?  When the criminal prosecutor is the adversary, it has the resources of the state and is directly subject to the requirements of due process and other constitutional guarantees.  Civil proceedings in which both sides are individuals complicates things.  Gideon’s enforcement mechanism – dismissing the case if the government does not provide counsel – cannot be used in a civil case without denying due process to the other litigant.

3. Protections other than providing a lawyer. A motivating idea behind the movement establishing State Commissions on Access to Justice is the “mixed delivery system” using a variety of methods to improve the quality and availability of justice in civil matters.  The Access Commissions support more resources to hire lawyers for the poor and motivate pro bono work by private lawyers; but they also encourage the use of simplified laws and forums, assisted self-help, limited-scope representation by lawyers, and other means to help people who do not have the help of traditional representation by a lawyer.  If these efforts are not misconceived, they are potentially relevant to the question whether due process requires a lawyer.

Such alternatives must be assessed skeptically and seriously.  They might be more effective at assuaging the concern of those who wish to help represented litigants than at keeping them from default or erroneous outcomes.  Mary Schmid Mergler (in a previous blog) points out that in Turner a standardized information form was used to report on the father’s financial circumstances; but the Supreme Court still found a due process violation.

As others have noted, one of the positive consequences of Turner is that a civil contempt incarceration decision can be reversed now on due process grounds if the court provides the defendants with neither a lawyer nor effective assistance of another kind.  We can hope, as Richard Zorza does, that this will becomes a broad due process right to adequate assistance for self-represented litigants in other kinds of proceedings.  Along with hoping, we should be careful and prudent in choosing the future test cases.  And we should work to demonstrate that in well-selected cases, providing counsel to all who cannot hire them will work and will be worth the cost.

4. Countervailing government interests. Instead of asking, as Matthews suggests, whether there are governmental interests and policies that would be hampered by appointing counsel, the majority opinion ascribes the countervailing interest to the mother.  The interest mentioned is in avoiding formality and delay, presumably compared to what would obtain if the court had to appoint a lawyer for the father.  The interest in avoiding delay is real.  A week or more of unpaid support can be a substantial hardship.  However, a right to counsel does not mean delay if the government’s system of providing counsel is capable of keeping up with the schedule for such proceedings.

By attributing the countervailing interests only to the mother, the majority avoids discussing the biggest countervailing interest, which belongs to the government.  Serious fiscal and administrative burden would have to be overcome to provide counsel for fathers without delaying civil contempt proceedings.  Much more would be required to provide counsel to both sides.

The challenge would be even greater if the right were extended to the kinds of cases that the ABA resolution encompasses.  Many family courts involve exactly the kinds of human needs that the ABA resolution mentions, and in most cases both sides are unrepresented by lawyers.  Is it politically feasible – in any budget year and with any legislature we can foresee – to obtain enough public funding to pay lawyers for both sides in all such cases? 

One might argue that this means we should focus on litigation, not legislation, because cost is not a sufficient countervailing factor to outweigh a fundamental right such as due process in court proceedings about personal liberty and other fundamental interests.  To the extent this argument can be used to reduce the reliance on arguments about costs in briefs and judicial decisions, that is a tactical advantage.  But the cost is real, and it matters to courts as well as to legislatures.  In California and many other places, judges live daily with the reality of inadequate state funding for the courts themselves.  They often cannot enforce rights that have already been recognized.  A court cannot pay the cost of appointing counsel, and it cannot in a civil case achieve the same result as it could in a criminal case by dismissing the case unless the government provides counsel.

I believe courts will not recognize a right to counsel in principle until and unless they are convinced that the right they declare is of a scope that can be implemented in practice.  Advocates of providing counsel in civil cases must therefore move on two fronts.  One is to make the constitutional arguments in well-chosen cases.  Recognizing that cost matters, we must also recognize that there are some civil cases that involve a basic human need but that can be handled justly by parties without lawyers, with well-designed advice and assistance.  We should bring to bear on this category of cases all of the That being the case, we should choose cases that are not in this category which to argue for the right to counsel.

The other necessity is to provide working examples showing that counsel can be provided to low-income people in all civil cases of carefully selected types – as is the goal of efforts such as the pilot programs to be established in California under the Sargent Shriver Civil Counsel Act (California AB 590).  The cases must be selected not only because basic human interests are at stake, but because lawyers can do a better job than any procedural alternative at reaching a just result, and because the costs of providing lawyers are lower than the benefits to the community achieved by doing so.  If we can make this work in practice, recognition of the right will follow.

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