Imagine being a single parent of young children, facing serious
illness, loss of employment due to that illness, the consequent
loss of health insurance, and an eviction, all within a few months.
As a lawyer, you would ask what legal remedies might be available
and then seek an attorney to help. But many citizens of our
commonwealth do not know their legal rights and can't find
affordable legal assistance.
Daniele Bien-Aime faced all of these issues in 2011. As she told
650 lawyers and other supporters at this year's Walk to the Hill
for Civil Legal Aid, missing work for breast cancer treatment cost
her job. That meant not only losing her income, but also the health
insurance that was essential to continue chemotherapy. With no
income, she couldn't pay her rent and her landlord attempted to
evict her.
Luckily, Daniele obtained legal help from South Coastal Counties
Legal Services (SCCLS). Her legal aid lawyer contacted the
employer, asserting Daniele's right to accommodations under the
Americans with Disabilities Act and requesting her job be
reinstated. The employer initially refused, but Daniele's attorney
convinced the employer to rehire her and offer time off to finish
chemotherapy. The attorney also successfully negotiated a
settlement with Daniele's landlord, who dropped the eviction
lawsuit. Daniele and her daughters remain in their home; she has
finished her chemotherapy; and is now cancer-free and back at
work.
GIDEON'S LEGACY
Daniele is one of thousands in Massachusetts who face loss of
basic human rights -- housing, health care, custody of children --
but who have no right to a lawyer to represent them. Daniele was
lucky: Others are not able to. Legal services programs turn away
over half of the low-income individuals seeking assistance. As we
mark the 50th anniversary of Gideon v.
Wainwright1 -- which established the right to
counsel for indigent defendants in criminal cases -- and remember
Anthony Lewis, who passed away in March, author of Gideon's
Trumpet, it is striking that no comparable right to counsel
exists for civil litigants, even when basic human rights are at
stake.
More than 46 million people in the U.S. live below the poverty
line ($24,413 annually for a family of three2) and
millions more survive on incomes any reasonable measure would
consider poor. Many have physical ormental disabilities or other
barriers to successful self-representation. According to the World
Justice Project, a nonprofit group promoting the rule of law, the
United States ranks 66th of 98 countries in access to and
affordability of civil legal services.3
REACHING THOSE WHO NEED IT MOST
Pro se litigants dominate the dockets of most civil
courts. In Massachusetts, most family law cases involve at least
one party without counsel. Ninety to 95 percent of tenants are
unrepresented in eviction cases4, and most debtors
appear in court without counsel. Unrepresented litigants typically
are poor and frequently cite the inability to afford an attorney as
reason for appearing pro se5. Studies indicate
representation can be the crucial factor in having a positive case
outcome. Retired Chief Justice Margaret Marshall has spoken about
the critical need for representation in cases where basic human
rights are at stake:
Access to justice is best secured by -- and perhaps
requires -- a lawyer. In Massachusetts, we provide lawyers free of
charge to those accused of a crime if they cannot afford one,
through the state-funded public defender system. As a retired Chief
Justice of the Massachusetts Supreme Judicial Court, I know that
this system - while not perfect - protects the basic rights of
those accused of a crime by ensuring that they have access to a
competent lawyer. But there is no similar guarantee of
representation for thousands of our most vulnerable residents
confronted with non-criminal civil actions in which their most
basic rights are also at stake. We do not provide lawyers, for
example, to families threatened with wrongful eviction, or to
battered women seeking restraining orders, or to senior citizens
who challenge the improper denial of Medicare benefits. They are
often on their own, left to fend for themselves without legal
assistance in a complex adversarial system in which the party with
a lawyer has the clear advantage. These impoverished litigants need
the help of lawyers just as much as those accused of committing a
crime.6
Not only do individuals who represent themselves face many
challenges, but the court system faces additional administrative
burdens as a result of the high number of pro se
litigants. Massachusetts courts are under enormous pressure due to
fiscal constraintsand are called on to handle more cases in which
the parties appear pro se. Clerk office staff, spend more
time helping pro se litigants, explaining procedures and
answering questions. Cases often take much longer as judges in
courtrooms provide guidance to unrepresented or inexperienced
pro se litigants.
The provision of legal assistance to low-income clients creates
significant savings for the state and real benefits for
individuals. The Massachusetts Legal Assistance Corp. (MLAC)
determined that in fiscal year 2012, MLAC-funded legal aid programs
brought $27 million in new federal revenues to the commonwealth,
won $10.7 million in other benefits for low-income residents and
saved the state roughly $9.9 million by preventing homelessness and
domestic violence.7 The commonwealth's appropriation for
MLAC was $12 million; but because the need is so great, more
dollars spent on providing representation would produce additional
savings.
RIGHT TO COUNSEL
The U.S. Supreme Court has reviewed the parameters of the right to
counsel, in Turner v. Rogers8, and has set
federal guidelines, but has not constitutionally mandated states to
appoint attorneys for indigent litigants. A civil right to counsel
does exist in limited circumstances under some state laws. In
Massachusetts, attorneys are appointed in care and protection
proceedings, termination of parental rights, mental health
commitments and substitute judgment/involuntary treatment
situations. Massachusetts's revised Uniform Probate Code provides a
qualified right to counsel for persons facing potential appointment
of a guardian or conservator. But in many other areas, there is no
right to counsel.
Ironically, a domestic violence victim will watch her abuser
receive free counsel if he is indigent, but has no right to a free
attorney to help her protect herself and her children from future
harm.9 Recently, advocates around the country have
joined together to expand the right to counsel in civil cases for
low-income individuals. They organized the National Coalition for a
Civil Right to Counsel (NCCRC) to provide information-sharing,
training, networking, coordination, research assistance, and other
support. The coalition has more than 100 participants from 30
states, including legal services, private lawyers, state bar
associations, law schools, national strategic centers and state
access to justice commissions.
In 2006, the ABA became a major proponent of broadening the civil
right to counsel. At the coalition's request in 2005, the ABA
Standing Committee on Legal Aid and Indigent Defendants (SCLAID)
examined the concept of a right to counsel in certain civil cases
and began developing draft language. A task force considered how
the ABA could promote the expansion of the civil right to counsel
as an essential component of equal justice under law. The MBA, as
well as the Boston Bar Association and the Massachusetts Access to
Justice Commission supported the resolution. The task force
proposed a resolution adopted by the ABA House of Delegates in
August 2006:
RESOLVED, That the American Bar
Association urges state, territorial and federal jurisdictions to
provide 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.
The ABA resolution is carefully weighted. Many would have
preferred to urge a right to counsel in all significant legal
proceedings, but the resolution stops at cases in which the most
basic of human needs are at stake. Even in such cases, it is viewed
as appropriate to explore a range of other actions before providing
counsel, including changes to procedural rules, revised roles for
court personnel or implementation of limited assistance
programs.
GIDEON'S NEW TRUMPET
Here in Massachusetts, the Massachusetts Bar Foundation, Boston
Bar Foundation, and the Boston Foundation supported two pilot
projects to study the effectiveness of representation in eviction
cases. These projects followed the 2008 report issued by the Boston
Bar Association, Gideon's New Trumpet, in which the Task
Force on the Civil Right to Counsel made recommendations for
providing representation in four substantive law areas (housing,
family, juvenile and immigration law). The task force recommended
pilot projects that would provide more information on the best
mechanisms for providing counsel, the impact of creating a right to
counsel, the costs associated, and the potential cost savings to
the commonwealth.
The pilot projects were conducted in Quincy District Court with
attorneys from Greater Boston Legal Services, and in the Northeast
Housing Court in Lowell and Lynn with attorneys from Neighborhood
Legal Services. The target population for the projects included
low-income tenants who faced eviction related to mental
disabilities, criminal activity and those with potentially
meritorious cases jeopardized by extreme power imbalances between
the tenant and landlord.
The findings of both pilots confirmed assistance from attorneys is
critical in helping tenants preserve their housing and avoid
homelessness, including the costs, to tenants and to society that
are associated with homelessness.10 The report concludes
that "the results of the randomized study in Quincy provide perhaps
the strongest evidence ever developed of the positive impact of
full representation for tenants facing eviction.11" The
results in the Northeast Housing Court were consistent.
A second round of eviction defense pilot projects recently was
funded with a Crisis Response and Innovation Grant from the Office
of Attorney General. The HomeCorps Homelessness Prevention Project
will provide free legal representation to tenants in certain
eviction cases in Worcester Housing Court with attorneys from
Community Legal Aid and Massachusetts Justice Project, and in
Framingham District Court with attorneys from MetroWest Legal
Services with management from Massachusetts Law Reform Institute.
The pilot will be carefully evaluated to measure its impact.
Those of us who appear in court see clearly how critical good
advocacy is to the outcome of a case. We know how important it is
to the functioning of our justice system. The support of the MBA
for the current effort in Massachusetts, designed to provide
representation in cases where basic human needs are at stake only
full representation will ensure access to justice, will continue to
be critical.
This article was produced with the helpful assistance of Jayne
Tyrrell and Susan Anderson.
1372 U.S. 335 (1963)
2www.census.gov/hhes/www/poverty/data/incpovhlth/2011/tables.html
3Ethan Bronner, Right to Lawyer Can Be Empty Promise
for Poor, New York Times, March 15, 2013.
4Boston Bar Association Task Force on the Civil Right
to Counsel, The Importance of Representation in Eviction Cases and
Homelessness Prevention, March 2012, 3
5Russell Engler, Turner v. Rogers and the Essential
Role of the Courts in Delivering Access to Justice,
hlpronline.com/print/volume-7-1
6Margaret Marshall, Provide Legal Support to Those Most
Vulnerable, Boston Globe, Oct. 29, 2011.
7www.mlac.org/pdf/Economic_Benefits_Fact_Sheet_FY12.pdf
8131 S. Ct. 2507 (2011).
9Mary Schneider used this example in her article,
Trumpeting Civil Gideon: An Idea Whose Time Has Come?, Bench &
Bar of Minnesota, October, 2006
10Boston Bar Association Task Force on the Civil Right
to Counsel, supra, n. iv.
11Id. at.32