by RICH CASSIDY on SEPTEMBER 9, 2010
In Gideon v. Wainwright, 372 U.S.335 (1963), the United States Supreme Court held the 6th and 14th Amendments to the United States Constitution require that defendants in serious criminal cases be afforded representation by an attorney even when the defendant could not afford counsel. Mr. Justice Black wrote for a unanimous Court: “[t]he right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” As a fundamental right, it is “made obligatory upon the States by the Fourteenth Amendment.”
Gideon revolutionized the criminal law. In Argersinger v. Hamlin, 407 U.S. 25 (1972), the Court extended the right to appointed counsel to misdemeanors when the defendant could be sentenced to imprisonment. The Justice Department reported in 1984 that “nearly two‐thirds of the nation’s population is served by public defenders. Various studies have shown that a defendant’s chance of being convicted is not significantly affected by whether he is represented by a public defender or private counsel, although defendants who proceed without counsel are significantly more likely to be convicted.” (See Gideon v. Wainwright: West’s Encyclopedia of American Law.) The system has its critics, but certainly it is a far fairer system than what came before it.
In 2006 the American Bar Association House of Delegates unanimously adopted a resolution urging federal, state, and territorial governments to provide legal counsel at public expense, as a matter of right, to low income persons in adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody.” 2006 Resolution 112A. This idea, a “Civil Gideon,” recognizes the underlying rationale of Gideon is not limited to the defense of criminal prosecutions. There are civil matters that are of such a profound significance that fundamental fairness demands that counsel be appointed to represent those who cannot afford to hire counsel on their own.
At this year’s ABA Annual Meeting, two resolutions were considered that were intended to implement the idea of “Civil Gideon.” 2010 Resolution 104 adopts the ABA Model Access Act, defining the scope of the right to access to public legal service, and would require that each state or territory establish a State Access Board and a State Access Fund. 2010 Resolution 105 adopts the ABA Basic Principles of a Right to Counsel in Civil Legal Proceedings. The goal of the Basic Principles is to establish minimum standards for a jurisdiction-wide system for providing counsel to individuals who cannot afford counsel in each state and territory.
Although I share these goals, I had, and have, some very real doubts about the efficacy of these resolutions. And I have concerns about whether, in a vain attempt to make these resolutions more likely to be adopted, the resolutions as adopted stop short of the ideal of Civil Gideon.
So I spoke on the floor of the House of Delegates about the resolutions. Here is the substance of my remarks:
“Mr. Chair, members of the House:
I am Richard Cassidy and I represent the Vermont Bar Association to this House.
I am also the Chair of the Standing Committee on the Delivery of Legal Services, the entity charged by this Association with improving access to justice for the middle class.
I rise to register my concern about Reports 104 and 105 as they stand — not because I disagree with the policy they seek to advance — but because of what they fail to say.
The ABA Model Access to Justice Act and the Basic Principles should clearly state that a right to counsel must exist in matters affecting basic human needs to all who cannot afford a lawyer in such matters, whether or not they are technically indigent.
As David Boies told us at our opening ceremony, our adversarial system works well indeed when both sides of a dispute are adequately resourced. It often works well when neither side is adequately resourced. But it normally does not work well when one side is adequately resourced and the other is not. (See my August 10, 2010 post, “David Boies Addresses the Rule of Law at ABA Opening Ceremony of 2010 Annual Meeting”).
By limiting the scope of Civil Gideon to those who are poor within the narrow definitions of legal services programs, these resolutions urge providing counsel to those who are technically poor when in conflict with those who are in fact too poor to afford counsel.
Having registered my concern, I don’t urge this House to reject the Reports. The basic principle they advance is right and important. I will vote for them myself.
But I will do so with the hope that in the future ABA Policy will evolve into a more inclusive and fair expression of the ideal of Gideon.”
The nation remains in a recession. Almost every state and territory faces serious fiscal difficulty. In our present circumstances, Reports 104 and 105 seem unlikely to get serious attention in any jurisdiction anytime soon. And at the federal level, the Justice Department official charged with improving access to justice, Laurence Tribe, told us at this Annual Meeting that a Civil Gideon proposal was a non-starter in the Obama administration. “Professor Laurence H. Tribe Discusses Access to Justice at the ABA Annual Meeting. (August 15, 2010).
But fiscal matters have a way of being cyclical. Unless something fundamental has changed in our economy, the time will come again when state and territorial governments are in a position to consider new spending proposals. Before that day comes, I hope all who cannot afford counsel in matters where basic human needs are at stake are brought within the ambit of the ABA’s Civil Gideon policy. To do less is an injustice.
Rich