Category: Symposium (Turner v. Rogers)


Turner v. Rogers is Released — Due Process Requires Reversal Despite Lack of Categorical Right to Counsel — Symposium Launched

The Supreme Court has decided Turner v. Rogers. Opinion by Justice Breyer (5-4), with Justice Kennedy joining the majority. The Court basically accepts the Solicitor General’s position that reversal is required, not because there is a categorical right to counsel, but because the trial court failed to follow available procedures to establish whether non-paying father had a current ability to pay.

The Symposium is launched.

Here are the (to me) major highlights of the majority Opinion:

  • The Court reaches the case as “capable of repetition,” while “evading review.” (Slip Opinion at 6.)
  • Civil contempt has lesser protection than criminal. (Slip Opinion at 7)
  • In determining whether there is a right to paid counsel at a civil contempt hearing, the Court applies the Mathews v. Eldridge factors of private interest impacted, risk of erroneous deprivation, and countervailing interest in nor providing additional protections.  (Slip Opinion at 11.)
  • Arguments AGAINST need for counsel in all cases are: (1) Ability to pay is like indigence in that it is something that can often be determined before decision as to whether counsel can be provided; (2) the opposing side is NOT the state, and often there is no opposing counsel, and creating a right to counsel would “create an asymmetry of representation” increasing risk of unfair decisions; (3) as pointed out by the Solicitor General, there are “available at set of ‘substitute procedural safeguards’ quoting Mathews.  (Slip Opinion at 13-14.)
  • Importantly for the decision: “Those safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.”  (Slip Opinion at 14).  Citing to Solicitor General Brief and oral argument.
  • The Court is careful to limit its holding to cases in which the opposing party is not the state. (Slip Opinion at 14.)
  • Also: “Neither do we address what due process requires in an unusually complex case where a defendant ‘can fairly be represented only by a trained advocate.’” Quoting Gagnon.  (Slip Opinion at 16.)
  • Dissent, per Justice Thomas, argues, inter alia, that the procedures suggested by the Solicitor General are not properly before the court, and so “[a]lthough I think that the majority’s analytical framework does not account for the interests that children and mothers have in effective and flexible methods to secure payment, I do not pass on the wisdom of the majority’s preferred procedures. (Slip Opinion [dissent] at 12.)

Here are some questions that I hope our symposium addresses in the week to come.

  • What do we do to make sure that this decision is not used to undercut the current law in those states that do provide counsel in these cases?
  • Does the discussion of the roles of the “civil” label and of the threat of incarceration provide any openings for ongoing strategies?
  • Does this emphasis on the absence of the state on the other side impact the overall strategy to enhance the provision of counsel?  Is there a follow up case, and what are the implications of the fact that this case was brought first?
  • Does the Court’s limitation of the case to those that are not “unusually complex” and acknowledgement that some cases require a “trained advocate” suggest a long-term strategy to illustrate the complexity of such cases, starting with examples of obviously complex cases?  Does this suggest an attempt to re-read Lassiter to focus on its implication, here arguably strengthened, of a right to an individualized determination of the need for counsel (or other procedures)?
  • Does the Court’s emphasis on the accuracy of the decision under the Mathews test mean that we need to emphasize the accuracy issue more in future analysis and litigation?
  • Does the reference to “substitute procedural safeguards” open a door for urging on courts (both through access to justice commissions and potentially litigation) the constitutional significance, as well as the underlying value, of courts reviewing their procedures and services to ensure that litigants are properly heard in all matters?
  • Does the reference to the “the use of a form (or the equivalent) to elicit relevant financial information” in the discussion of these safeguards similarly strengthen the arguments for much broader use of forms – including automated forms – in a broad range of cases?
  • Does the reference to the “opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form” similarly open the door for much broader court attention to the role of judges in asking engaged but neutral questions designed to get at the truth?  What are the roles of codes of judicial ethics in this process?
  • Does the reference (in the Slip Opinion at 15) to the possibility that “sometimes assistance other than purely legal assistance (here, say, that of a neutral social worker) can prove constitutionally sufficient,” open the door to advocacy for more court-based informational services, or even innovations with non-lawyers being allowed to provide different kinds of help in preparing or presenting cases?

P.S.  My co-moderator of this Symposium, David Udell, has not yet been able to add his always highly valuable perspectives to this post.  I am sure he will have points to make and questions to ask.  We will both be adding more detailed analysis in the week to come.


Lack of Civil Gideon and Unauthorized Practice of Law Rules — Are They Consistent?

The recent focus on Civil Gideon triggered by the pending US Supreme Court case, Turner v. Rogers (please track the Turner Symposium here on Concurring Opinions, when the decision comes down), has set me thinking about the relationship between Civil Gideon and our current unauthorized practice of law (UPL) rules. By UPL rules, I mean the current sets of laws that generally fence off large areas of legal activity, making it unlawful for anyone without a law degree to provide services in those areas in any context at all.  I do not mean the general concept that legal services of different kinds can be regulated.

Here’s my question:  In the end, isn’t a ruling that there is no right to civil Gideon assistance in a case really the same as a ruling, at least in significant stake state deprivation cases, that the case is simple enough that people can do it on their own – even if technically the court is more likely to use a balancing test saying that the case is easy enough that it is unfair to make the state pay for counsel.  See, e.g. Lassiter v. Dept of Social Services, 452 U.S. 18, 33 (1981) (analyzing, in Part III, limited impact on the outcome on the specific facts, of lack of counsel); Turner v. Rogers, Transcript of Oral Argument, at 20-21, (Associate Justice Alito questioning petitioner’s counsel Seth Waxman as to whether it would be sufficient if the Court were to require judicial engagement when determining the issue of whether defendants are in civil contempt for having “willfully” refused to pay, except in harder cases — “And then if you run into some of these complicated legal problems or arguably complicated legal problems that you referred to, maybe in particular cases there would be need for the appointment of counsel.”)

Insofar as the Court denies a right to counsel for matters that are too simple, wouldn’t that also eliminate any basis for UPL rules?  After all, the premise of UPL rules is that a matter is too complex to be handled by non-attorneys. The main other argument for ULP rules is that there is a need for the activity to be regulated as to the “character” of the person helping and the quality of the service, but that is really a different matter, that could be taken care of in many ways other than requiring a legal education and the passing of the bar exam — see below.)

Put another way, where is the justification for the legal system to say, in any important matter that triggers due process concerns, that it is OK to require that a lawyer, and only a lawyer be allowed to help, and then to refuse to make one available?  Either the case is simple enough for non-lawyers to help, in which case the UPL prohibitions make no sense (and are arguably unconstitutional in such circumstances), or it is too complicated for a non-lawyer.  If it is too complicated, there must be help from a lawyer, and one should be provided to those unable to pay.  Indeed Professor Tribe points out the unconstitutionality of requiring the use of a legal path, and then making it financially impossible, Boddie v. Connecticut, 401 U.S. 371 (1971) (holding that if state prescribes only one method of dissolving marriage – judicial divorce, it can not deny the route to those who can not afford it; here the state is requiring that help must come from an admitted lawyer, and then refusing to provide one to the indigent.)

Any claimed middle group of cases — that a case is complicated enough that you can not allow non-lawyers to help, but simple enough that people can not do it on their own, just makes no ultimate sense.  I suppose one could assert that there is so much easier for a self-represented litigant to handle their own case than for a non-lawyer to help them that you can require people to handle their own cases.  But the only reason I could think of for this would be that the process of drawing out what someone else’s actual problem is, is so difficult that you need a law degree to do it. But we all know that the skill of drawing out from someone what their problem is, is hardly taught in law school at all — more likely in social work school.

As to the skill of legal “issue spotting,” that would be just as much needed by the self-represented as by any helper, and if needed in a case, should move it into the category of those needing counsel. Remember too, at least in this country, the structure of UPL rules cannot be justified as preventing unregulated commercial exploitation of the vulnerable.

In this country those rules reach to any activity that is substantively considered the practice of law, regardless of the relationship between the helper and the helped, regardless of whether provided by a non-profit or one in business, and regardless of whether money changes hands.  So the rigor and comprehensiveness of ULP rules can not be justified in such ethical and protective terms, but only in skill terms.  There are, of course, legitimate concerns about the ethics and quality of services provided by non-lawyers (as by lawyers), but there are many regulatory ways of taking care of this.  Abolishing or modifying the rules governing UPL is not the same as having no consumer protection regime.  Such an appropriate protective regime might potentially include registration, an insurance requirement, a complaint mechanism, and/or limitation to certain activities, including possibly to non-profit practice. Moreover, getting the line right would make it easier for appropriate consumer protection enforcement.

You could also argue, I suppose, that UPL rules do no harm, because, after all, you can always represent yourself, and a lawyer is denied only in cases where it would make no difference.  But surely that is a matter for the person providing or receiving the help to decide, and, to the extent we might be talking about associational or commercial relationships, that relationship can only be reasonably, not unreasonably, regulated.  (Indeed the prohibition, particularly in the associational non-commercial contest, might raise First Amendment questions.  It may well be that these First Amendment implications and the over and under inclusiveness of the current structure of UPL are what might doom the current bright line between lawyers and non-lawyers and between legal practice and non-regulated activities.)

In the end, I would hope that this insight — if it is that — will help us all focus more comprehensively on the whole access issue with its many components, and on the need not to focus on battles about small parts of it.

Final Note:  Although I have focused this early pre-post on the possible UPL implications of Turner, this is, of course, just one aspect of the much larger conversation we are anticipating once Turner comes down.


The Turner Symposium: Coming Soon!

No one knows what the Supreme Court will do in Turner v. Rogers, but its decision will likely shape our understanding of access to justice going forward.  The issue before the Court is whether an indigent person has a constitutional right to counsel in a civil contempt proceeding that could lead to incarceration for willful failure to pay child support.  The Court has many options.  It could establish a categorical civil right to counsel, require judges to consider the need for counsel in every case, or determine that states providing counsel in these situations need not do so as a matter of federal law.  It could decide that trial judges have specific responsibilities to assist persons without counsel, with implications possibly extending to many classes of cases.  Perhaps it could even alter in some way our understanding of the right to counsel recognized in Gideon v. Wainwright.  In light of the possibilities and their implications, Concurring Opinions will sponsor The Turner Symposium, an on-line analysis by experts in the field interpreting the decision in real time — as soon as the opinion comes down.  Two experts in residence will moderate:  Richard Zorza, expert in self-represented litigation and blogger at Access to Justice, and David Udell, Director of the National Center for Access to Justice.  The list of participants is after the leap: