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ernment . Legal Aid , or some similar entity , would shift from a non-profit role to a governmental role . Annual allocations would become mandatory , and court process would halt until counsel could be provided . In short , an indigent person facing an eviction , debt collection action , or a civil suit could suddenly find her case halted until she was appointed counsel who could step in to counsel and advocate on her behalf .
How Would Civil Gideon Be Implemented ?
Naturally , a shift this radical would not be without problems . Apart from the money , one of the big questions for civil Gideon advocates is how far they would extend the right . Civil cases range widely from zoning appeals to personal injury , contract disputes to state services and benefits . Unlike criminal law , primarily a uniform area of the law governed by statutes , structured due process , and a limited cast of characters , civil litigation is nebulous and expansive . Today ’ s defendant can be tomorrow ’ s cross-plaintiff . Remedies range from injunctive relief to monetary damages . Cases , especially personal injury cases , come with a market value that the current system uses to weed out insignificant claims .
To what claims or dockets can a court extend civil Gideon , and how does it differentiate certain cases from others ? Just as an example , personal injury law is largely self-regulated by economic considerations . A lawyer takes a personal injury case on contingency because it is worth a certain amount in terms of damages , clarity of the claim , and the ability to prove the case . The lower the damages , the more complicated the case or less clear the claim , the less likely an attorney is going to be to take it . But under a broad civil Gideon concept , such individuals would have a legal right to counsel to bring an action regardless of cost , likelihood of success , or value .
As some commentators have observed , defining the public good in bringing a civil action is not always easy or clear . 9 These criticisms can be summarized as a fear that “ applications of civil Gideon will use taxpayer-funded attorneys to litigate cases against private citizens , aggrandizing rather than limiting government power .” 10
Even the ABA ’ s position on civil Gideon is less than clear---while it has called for civil Gideon to be adopted , the language it has used appears more limited . The 2006 House of Delegates Resolution urged state courts and legislatures to adopt civil Gideon for “ 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 .” 11
By limiting its scope , the ABA is not proposing
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a broad right to counsel but a limited one , where specific dockets are identified and targeted as meriting counsel as a matter of constitutional right or due process . The problem with this nuanced approach is that it appears more apt for legislative adoption than court ruling . If the right to counsel in a civil case is premised on the state ’ s determination that the particular cause of action puts basic human needs at stake , it would be difficult to craft either a judicial test or a bright-line rule that would differentiate , say a residential landlord / tenant case from a commercial one as a matter of constitutional law . This limit is more consistent with policy and legislative attention . Statutory schemes do this all the time . Still , the challenge of locating constitutional support , and therefore judicial implementation that would withstand the ebbs and flows of popular sentiment , for such a premise , is not without hope .
Under the Vermont Constitution there is promising language in Chapter I , Article 4 . It states that “ every person ought to obtain right and justice , freely , and without being obliged to purchase it ; completely and without any denial ; promptly and without delay ; comfortably to the laws .” 12 Reading these terms , one could see a strong argument for an across-the-board civil Gideon based on the disparity of treatment between those with access to counsel and those that must litigate alone . It is also possible to argue that the influx of unrepresented litigants has ground the process down so that without civil Gideon justice is becoming perpetually delayed and effectively denied .
At the same time , the broad language of Article 4 does not readily lend itself to the limitations recommended by the ABA . It would appear to require uniform treatment of causes of action and would not support a flexible right to counsel based on a litigant ’ s particular circumstances .
Where Does That Leave Us ?
Despite the issues surrounding civil Gideon , both conceptually and practically , the challenges facing our profession and the entire legal system are simply too great to ignore this line of thinking . If we subscribe to the principle that the right lawyer will improve the outcome and course of a case , then we must be committed to finding ways to ensure legal representation remains a central part of the practice of law . Within the past ten years , the divide between those who can afford counsel and those who cannot has grown . As lawyers often say , “ I couldn ’ t afford me if I needed to hire someone .” This chasm will only continue to grow larger over time . For any of its flaws , real or perceived , civil Gideon sets out a significant challenge and response to
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the legal crisis facing our generation . It is a bold assertion of what every lawyer knows : cases work better , get resolved faster , and generate better decisions when there is a lawyer on both sides . Civil Gideon makes that premise an enforceable right for all citizens , but it comes with a steep price . As a profession , we need to decide whether it is worth it and if the promise of access to justice is one that we , as a profession , are prepared to keep . ____________________ Daniel P . Richardson , Esq ., is a partner in the Montpelier firm Tarrant , Gillies & Richardson a past-president of the Vermont Bar Association , and the current president of the Vermont Bar Foundation ____________________
1
316 US 455 ( 1942 )
2
Gideon v . Wainwright , 372 US 335 ( 1963 ).
3
Daniel Medwed and Jason Kornwitz , 3Qs : The Lasting Impact of Historic Gideon Ruling , news @ Northeastern , available at http :// www . northeastern . edu / news / 2013 / 03 / gideonwainwright / ( last visited Sept . 14 , 2016 ).
4
Eric Holder , The Legacy of Gideon v . Wainwright , United States Department of Justice , available at https :// www . justice . gov / atj / legacy-gideon-v-wainwright ( last updated Feb . 3 , 2016 ).
5
Robert Derocher , Access to Justice : Is Civil Gideon a Piece of the Puzzle ? 32 Bar Leader 6 ( July – Aug . 2008 ), available at http :// www . americanbar . org / publications / bar _ leader / 2007 _ 08 / 3206 / gideon . html
6
Barbara Ehrenreich , It Is Expensive to Be Poor , the Atlantic , available at http :// www . theatlantic . com / business / archive / 2014 / 01 / it-is-expensiveto-be-poor / 282979 / ( published Jan . 13 , 2014 ).
7
ABA Standing Committee on Legal Aid & Indigent Defendants , Civil Legal Aid Funding , available at https :// www . americanbar . org / groups / legal _ aid _ indigent _ defendants / initiatives / resource _ center _ for _ access _ to _ justice / resources---information-on-civil-legal-aid-funding . html ( last visited Sept . 14 , 2016 ).
8
William Dowling , Legal Aid Funding Crisis : Is There Still “ Justice for All ?” Ohio Lawyer ( March / April 2014 ), available at https :// www . ohiobar . org / NewsAndPublications / OhioLawyer / Pages / Legal-aid-funding-crisis-Is-there-still-justice-for-all . aspx
9
Ted Frank , The Trouble with the Civil Gideon Movement , 3 American Enterprise Institute Liability Outlook ( Aug . 2008 ), available at https :// www . aei . org / publication / the-trouble-with-thecivil-gideon-movement /.
10
Id .
11
ABA House of Delegates Resolution 112A , Aug . 7 , 2006 , available at http :// www . americanbar . org / content / dam / aba / administrative / legal _ aid _ indigent _ defendants / ls _ sclaid _ resolution _ 06a112a . authcheckdam . pdf
12
Vt . Constitution Ch . I , Art . 4 .
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