Amicus Olson v Olson - American Bar Association

IN THE SUPREME COURT FOR THE STATE OF ALASKA

DENNIS OLSON,

STEPHANIE OLSON,

V

Appellant, Supreme Court No. S-15802

Superior Court No. 3PA-09-01278 Cl

Appellee

ON APPEAL FROM THE SUPER¡OR COURTTHIRD JUDICIAL DISTRICT AT PALMERTHE HON. GREGORY HEATH, JUDGE

BRIEF OF THE AMERICAN BAR ASSOCIATION

)

))

)

))

)

)

)I

AS AMICU CURIAE IN SUPPORT OF APPELLANT DEN IS OLSON

Thomas M. DanielAlaska Bar No. 8601003T D an ie l(Ò pe rki n scoie. co mPERKINS COIE LLP1029 West Third Ave., Ste. 300Anchorage, AK 99501-1981(907) 279-8561

Theodore A. Howard (pro hac vice pending)D.C. Bar No. 366984WILEY REIN LLP1776 K Street, N.W.Washington, D.C. 20006(202)71e-7000

Filed in the Supreme Court for the State of Alaska,this _ day of September 2015

Marilyn May, Clerk

By:Deputy Clerk

Paulette Brown (pro hac vice oending)Counsel of RecordPresidentAMERICAN BAR ASSOCIATION321 N. Clark StreetChicago, lL 60654-7598(312) 988-5ooo

Counsel for Amicus CuriaeAme ri can Bar Asso ci ation

LEGAL'1 2764971 5.1

TABLE OF CONTENTS

Table of Authorities

INTEREST OF THE AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

Paqe(s)

10

17

20

1

b

7

THE APPOINTMENT OF COUNSEL FOR AN INDIGENT LITIGANTIN A CHILD CUSTODY PROCEEDING IN WHICHTHE OPPOSING PARTY IS REPRESENTED BY COUNSELPROTECTS FUNDAMENTAL RIGHTS, PROMOTES FUNDAMENTALFAIRNESS, MAXIMIZES JUDICIAL ECONOMY AND EFFICIENCYAND PRESERVES THE INTEGRITY OF THE JUDICIAL ROLE

IMPORTANT PRINCIPLES OF ALASKA CONSTITUTIONALLAW SUPPORT A CONCLUSION THAT COUNSEL SHOULDBE APPOINTED FOR AN INDIGENT LITIGANT OPPOSING APA.RTY REPRESENTED BY COUNSEI- !N AN A.CTIONCONCERNING CHILD CUSTODY........

Due Process.....,

Equal Protection

THE APPOINTMENT OF COUNSEL FOR AN INDIGENTLITIGANT IN A CONTESTED CUSTODY PROCEEDING WILLFOSTER FAIRER, MORE RELIABLE OUTCOMES,ENHANCE JUDICIAL ECONOMY AND EFFICIENCY ANDPRESERVE THE NEUTRALITY OF THE JUDICIAL ROLE

CONCLUSION

7

7

A

B

il

28

LEGALl 2764971 5.1

TABLE OF AUTHORITIES

Cases

ln re Adoption of A.F.M.,15 P.3d 258 (Alaska 2001)

Alaska Civil Libeñies Union v. Sfafe,122P.3d 781 (Alaska 2005)........

ln re Alaska Network on Domestic Violence & Sexua/ Assau/f,264 P.3d 835 (Alaska2011).....

Alaska Pacific Assur. Co. v. Brown,687 P.2d 264 (Alaska 1984).......

Bauman v. Sfafe Div. of Family & Youth Servs.,768 P.2d 1097 (Alaska 19Bg)......

BellottÌ v. Baird,443 U.S. 622 n979\

Bounds v. Smith,430 U.S. 817 (1977)

Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc.,28 P.3d 904 (2001)

Page(s)

10,18

1B

18

17, 18

27

ln re Emilye A. v. Ebrahim 4.,9 cal. App. 4'n 1695 (1992).

Flores v. Flores,598 P.2d 893 (1e79).

10

16

16

11

pass/fn

12, 13,20,21Frase v. Barnharf ,

840 A.2d 114 (Md. 2003)

Guardianship of V.V.,470 Mass. 590 (2015)

Herrick's Aero-Auto-Aqua Repair Sery. v. Dep't of Transp. & Pub. Facilities,754 P.2d 1 1 1 1 (Alaska 1988)..

28

LEGALI 2764971 5.1

1B

Indiana v. Edwards,554 U.S. 164 (2008)

Jenkins v. Handel,10 P.3d 586 (Alaska 2000)

In the Matter of K.L.J.,813 P.2d 276 (Alaska 1991)

Keyes v. Humana Hosp. Alaska, lnc.,750 P.2d 343 (Alaska 19BB).

King v. King,174 P.3d 659 (Wash. 2007)

Lassifer v. Dep't of SocialServs. of Durham County,452 U.S. 18 (1e81) .

Mathews v. Eldridge,424 U.S. 319 (1976)

Reynolds v. Kimmons,569 P.2d 799 (Alaska 1977)

S.J. v. L.L,737 P.2d 789 (Alaska 1986)

Sfafe v. Schmidt,323 P.3d 647 (Alaska2014)

Turner v. Pannick,540 P.2d 1051 (Alaska 1975)

Constitutional Provisions

Alaska Const. art. l, S 1 ...

Alaska Const. art. I, S 7....

Statutes

Alaska Staf.. 44.21.a10@)Ø) .

10

pass/rf,

11, 12, 13,21

16, 20, 21, 22, 25

10,18

1B

10

17

10

17, 19

23

I

B

o

LEGALl 2764971 5.1

Other Authorities

ABA Model Access Act $ 1.F, ABA Policy #104 (rev'd) (adoptedAugust 201 0)

ABA Policy #1124, Recommendation with Report (adopted August 2006) . 12,20,27

26

David Bowermaster, Should the Poor Be Appointed Attorneys in Civil Cases?,Seattle Times, May 31 ,2007

17 Yale L. & Pol'y Rev. 503 (1998)

Brief Amicus Curiae of Eleven County Judges in Suppott of PetitionRequesting Supreme Coutl Take Jurisdiction of Original Action,Kelly v. Warpinskl (No. 04-2999-0A) (Wisc. 2004)

Brief of Appellant, Frase v. Barnharf ,840 A.2d 114 (No. 6, Sept. Term 2002)(Md.2003) .. .

Brief of Retired Alaska Judges Amicus Curiae in Support of AppelleeJonsson, Office of Public Advocacy v. Alaska Coutt System, et al.

(No. 5-12999) (Alaska 2008) 25,26

Brief Amicus Curiae of Retired Washington Judges in Suppotl ofAppellant , King v. King, 174 P .2d 659 (No. 799784) (Wash . 2007) ..21 , 24,26-27

Jonathan Martin, Court Rules That Spouses Aren't Entitled To Public DivorceLawyers, Seattle Times, Dec. 7, 2007 ....... 1 1, 12

Hon. Robert W. Sweet, Civil Gideon and Confidence in a Just Society,

12

24,27

14

25

LEGALl 2764971 5.1

IV

INTEREST OF TH AMICUS CURIAE

The American Bar Association ("ABA"), respectfully submits this brief as

amicus curiae at the invitation of the Supreme Courl of Alaska and in support of

Appellant, Dennis Olson, with respect to the following question

Whether the Alaska Constitution's due process or equal protectionclause requires the appointment of counsel to represent an indigentparent in a child custody matter when the other parent has privatecounsel?

Although it takes no position on the factual issues presented in this case, the ABA

submits that recognition of a right to counsel under the circumstances presented in

this case is necessary to protect fundamental rights, to promote fundamental

fairness, to maximize judicial economy, and to preserve the neutrality that is central

fn fha ir rr{inial rnlai'J i¡ iU jUUiv¡qi ì v'i'v'

The ABA is one of the largest voluntary professional membership

organizations and the leading organization of legal professionals in the United

States. lt has over 400,000 members, who come from all 50 states (including nearly

700 attorney members in Alaska) and a number of other jurisdictions, and who

include attorneys in private law firms, corporations, nonprofit organizations, federal,

state and local government agencies, and prosecutorial and public defender offices,

as well as judges, legislators, law professors, law students and associate members.r

t Neither this brief nor the decision to file it should be perceived as reflectingthe views of any member of the judiciary who belongs to the ABA. No inferenceshould be drawn that any member of ABA's Judicial Division Council hasparticipated in the preparation, adoption of or endorsement of the positions set forthin this brief. This brief was not circulated to any member of the Judicial DivisionCouncil prior to its filing.

LEGALl 2764971 5.1

Since its inception more than 100 years ago, the ABA has consistently

worked to improve the administration of justice and the judicial process. lts history

reflects an unwavering commitment to the principle that society must provide its

citizens with equal access to justice, including meaningful access to legal

representation for low-income individuals, in adversarial proceedings.

The ABA's Standing Committee on Legal Aid and Indigent Defendants

("SCLAID"), its first standing committee, was created in 1920 with Charles Evans

Hughes, later the Chief Justice of the Supreme Court of the United States, as its first

chair.2 Within the Standing Committee's charge is the investigation, study and

critical analysis of the administration of justice as it affects the poor and the

promotion of remedial measures intended to help indigent individuals realize and

^-^+^^+ +L^i- l^^^l -;^¡^r^ ^Þ^

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"Advance the Rule of Law," includes Objective 3: "Work for just laws, including

human rights, and a fair legal process," and Objective 4: "Assure meaningful access

to justice for all persons."3

ln the course of its on-going efforts to develop standards and policies for the

legal profession, the ABA has frequently addressed the core question presented by

this and analogous cases: When is a right to appointed counsel necessary in order

to ensure meaningful access to our justice system? ln 2006, a Presidential Task

' ABA Standing Committees are entities charged with investigating andanalyzing "continuing or recurring matters related to the purposes or business" of theABA. ABA Const. Art. 31.3.

t See ABA Missions and Goals, available at http.//www.abanet.org/about/qoals.html.

2LEGALl 2764971 5.'t

Force on Access to Civil Justice, chaired by Maine Supreme Judicial Coutt

Associate Justice Howard Dana, was appointed and charged to study and make

recommendations regarding whether appointed counsel for low-income persons is

necessary to ensure the protection of basic human needs, such as (among others)

child custody. When this Task Force presented its Recommendation with Repoft to

the ABA House of Delegates in August 2006, it was supported by a broad array of

ABA committees (including SCLAID), ABA sections and other entities, and several

state and local bar associations.a

The Recommendation of the Task Force, which was unanimously adopted in

August 2006 by the House of Delegates as ABA Policy #1124 ("ABA Policy

#112A"),5 provides as follows:

o Supporters of the Task Force on Access to Civil Justice's Recommendationwith Repoft, besides SCLAID, included the following: ABA Section of Business Law;

ABA Commission on lnterest on Lawyers'Trust Accounts; ABA Commission on Lawand Aging; ABA Section of Litigation; ABA Steering Committee on the Unmet LegalNeeds of Children; ABA Standing Committee on Death Penalty Representation;ABA Commission on lmmigration; ABA Section of Administrative Law andRegulatory Practice; ABA Section of Labor and Employment Law; ABA Section oflndividual Rights and Responsibilities; National Legal Aid and Defender Association;Colorado Bar Association; Connecticut Bar Association; Maine State BarAssociation; Minnesota State Bar Association; New York State Bar Association;Washington State Bar Association; Boston Bar Association; Association of the Bar ofthe City of New York, Bar Association of the District of Columbia; King County BarAssociation (Washington); Los Angeles County Bar Association; New York Lawyers'Association; and The Philadelphia Bar Association. See ABA Policy #1124, Reportat 1. The Recommendation and Report are reproduced as Appendix A to this Brief.

u Recommendations, but not their reports, become ABA policy only afterapproval by vote of the ABA House of Delegates, the organization's policy-makingbody. The House of Delegates is composed of 560 delegates from states andterritories, state and local bar associations, affiliated organizations, ABA sections,divisions and members, and the Attorney General of the United States, among

LEGALl 2764971 5.1

3

RESOLVED, that the American Bar Association urges federal, state,and territorial governments to provide legal counsel as a matter of rightat public expense to low income persons in those categories ofadversarial proceedings where basic human needs are at stake, suchas those involving shelter, sustenance, safety, health or child custody,as determined by each jurisdiction.

ABA Policy #112A, Reporl at 1. The categories of cases identified in Policy #1124

are those "considered to involve interests so fundamental and important as to

require governments to supply low income persons with effective access to justice

as a matter of right." Report at 13. The category of "child custody" encompasses a//

"proceedings where the custody of a child is determined or the termination of

parental rights is threatened." /d.6

As the foundation for the principle advanced by Policy #112A, the Task Force

identified the following "undeniable truths":

The American system of justice is inherently and perhaps inevitablyadversarial and complex. lt assigns to the parties the primary andcostly responsibilities of finding the controlling legal principles anduncovering the relevant facts, following complex rules of evidence andprocedure and presenting the case in a cogent fashion to the judge orjury. Discharging these responsibilities ordinarily requires the expertiselawyers spend three years of graduate education and more years oftraining and practice acquiring. With rare exceptions, non-lawyers lackthe knowledge, specialized expertise and skills to perform these tasks

others. For information regarding the House of Delegates, see generallyhtto : //wurw. ame ri ca n ba r oro/orouos/Leadershio/house of deleoates.html

6 ln harmony with ABA Policy #112A, the Board of Governors of the Alaska BarAssociation, in September 2008, similarly resolved "[t]hat the Alaska Bar Associationurges the State of Alaska to provide legal counsel as a matter of right to low incomepersons in those categories of adversarial proceedings where basic human needsare at stake, such as those involving shelter, sustenance, safety, health or childcustody." See Alaska Bar Ass'n Pro Bono Committee, Resolution in Support ofRecognizing a Right to Counsel for lndigent lndividuals in Ceftain Civil Cases(2008)

4LEGALl 2764971 5.1

and are destined to have limited success no matter how valid theirposition may be, especially if opposed by a lawyer.

ABA Policy #112A, Repod at 9. These critical considerations inform the ABA's

consensus belief that in adversarial proceedings in which basic human needs are at

stake, counsel should be appointed as a matter of right for parties unable to afford

the cost of retaining an attorney. ln furtherance of this objective, the ABA adopted

the Model Access Act in 2010, which is model legislation designed for consideration

and possible enactment by the States in furtherance of the proposition that "[fJair

and equal access to justice is a fundamental right in a democratic society. lt is

especially critical when an individual who is unable to afford legal representation is

at risk of being deprived of ceftain basic human needs." ABA Model Access Act,

S 1 C , ABA Policy #104(Revised) (adopted August 2010) (copy attached as

Appendix B); see a/so ABA Basic Principles of a Right to Counsel in Civil Legal

Proceedings, 11 1 , ABA Policy #105 (Revised) (adopted August 2010) (copy attached

as Appendix C) (setting out fundamental requirements for providing effective

representation as a guide for policymakers, including: "1. Legal representation is

provided as a matter of right at public expense to low-income persons in adversarial

proceedings where basic human needs -- such as shelter, sustenance, safety,

health, or child custody -- are at stake.").

These and other policies adopted by the ABA demonstrate its firm

commitment to the ideal of a civil right to counsel on the paft of indigent litigants

under the circumstances confronted by Appellant, Mr. Olson, in the case at bar. lt

is in that context that the ABA respectfully submits this brief, offering its views for

5LEGALl 2764971 5.1

such assistance as they may provide the Court in deciding the impoftant question

presented.

SUMMARY OF ARGUMENT

As a matter of settled Alaska law, an indigent litigant is categorically entitled

to the appointment of counsel in a child custody proceeding in which the adversary

party is represented by an attorney provided by a public entity. Flores v. F/ores, 589

P.2d 893 (Alaska 1979); Alaska Stat. 44.21.a1O(a)(a). ln F/ores, this Coutl

determined that the due process guarantees afforded by the Alaska Constitution

required the appointment of counsel under those circumstances to avoid

disadvantages to the unrepresented party in the adjudication of fundamental

parental rights that it held were "constitutionally impermissible." /d. at 896.

Tha ÂFlÂ crrlrrnifc fhaf fha rocrrlf raanhorl in Flnroc ic onnellrr annlinehle tn thci ¡¡V.'iU,'ì ÙV*'¡i¡¡lu il¡+i i!!'--

circumstances in the case at bar, wherein the Appellant, an indigent litigant, was

confronted in the child custody proceedings below by an adversary represented by a

private attorney. The pure happenstance that the opposing party has a private,

rather than a public sector, attorney does not alter any of the disadvantageous

consequences for an unrepresented parent in a child custody dispute that led this

Court to determine that a right to appointed counsel is mandated by the Alaska

Constitution in this context. The ABA respectfully suggests that both due process

and equal protection principles of Alaska constitutional law compel recognition of a

right to counsel in this case, no less than in Flores.

The ABA also submits that implementation of a right to appointment of

counsel for unrepresented indigent parties in all child custody proceedings in which

LEGA1127649715.1 6

the opposing party is represented by counsel will inevitably enhance the quality and

reliability of the outcomes reached in such cases, will foster the objectives of judicial

economy and efficiency, and will diminish the extent to which members of the

judiciary are confronted with situations in which their obligation to remain neutral and

impartial is placed in conflict.

For all these salutary reasons, as elaborated more fully below, a right to

counsel should be recognized in this case, and the judgment to the contrary below

should be reversed.

ARGUMENT

THE APPOINTMENT OF COUNSEL FOR AN INDIGENT LITIGANT IN A GHILDCUSTODY PROCEEDING IN WHICH THE OPPOSING PARTY IS REPRESENTEDBY COUNSEL PROTECTS FUNDAMENTAL RIGHTS, PROMOTESFUNDAMENTAL FAIRNESS, MAXIMIZES JUDICIAL ECONOMY ANDtrtrF!(ì!FI.JCY

^].IN PRFSFRVFS THE INTEGRITY OF THE -IUD!C!.A.L R.OLE

IMPORTANT PRINCIPLES OF ALASKA CONSTITUTIONAL LAWSUPPORT A CONCLUSION THAT COUNSEL SHOULD BE

APPOINTED FOR AN IND¡GENT LITIGANT OPPOSING A PARTYREPRESENTED BY COUNSEL ¡N AN ACTION CONCERNINGCHILD GUSTODY

ln F/ores v. Flores, SgB P.2d S93 (1979), this Court addressed the question

"whether an indigent party has the right to court-appointed counsel in a private child

custody proceeding in which her spouse is represented by Alaska Legal Services

Corporation (ALSC)." ld. al894. The Court answered this question in the

affirmative, holding "that the due process clause of the Alaska Constitution

guarantees such a right." /d. (footnote omitted).

7LEGALl 2764971 5.1

ln reaching the conclusion that the "flexible" concept of due process required

recognition of this right,T the Court focused principally upon two critical factors:

(i) the nature of the indigent party's interest at issue; and (ii) the nature of the

proceeding in which the interest at stake was to be adjudicated.

Regarding the first factor, this Courl observed that "[t]he interest at stake is

one of the most basic of all civil liberties, the right to direct the upbringing of one's

child." /d. at 895. Elaborating on this point, the Coutl cited with approval several

decisions of the Supreme Court of the United States, each supporling the

proposition that parental rights "ha[ve] consistently been recognized . . . as being

among the 'liberties' protected by the due process clause of the Federal

Constitution." M.8

r I L- Lt- - ,--¡...-^ ^f aL^ ^l:-^^:-^l;^^+;^^ +t-.^f lil^^v4rriÍle UOUI Ingn lUi-ngq iU'tiie iiatU¡c) Ul l,¡ iU PiUuttË\ji¡lgÞ ¡li¡P¡ivút¡¡¡!i t¡ iúi iiuciiJ

interest. Although the child custody action was between two private parties, the

Court determined that the interests of the State warranted due process scrutiny,

noting that "there is a strong state interest in divorce-child custody proceedings. . . .

[L]egally binding marriages and divorces are wholly creations of the state [and] [a]ny

provision for child custody in a divorce order is fully enforceable by the state." /d.

at 8g5-96 (footnotes omitted). The Court concluded, "ln this case, Christine Flores

7 M. at BgS n.7, quoting Otton v. Zaborac, 525 P.2d 537, 539 (Alaska 1974)("Due process is flexible, and the concept should be applied in a manner which is

appropriate in the terms of the nature of the proceeding." (Citation omitted.)).

u Citing Stanley v. tttinois, 405 U.S. 645 (1972)', May v. Anderson,345 U.S. 528(1953); Prince y. Massachuseúfs, 321 U.S. 158 (1 944), Pierce v. Society of the

Srs/ers,268 U.S. 510 (1925)', Meyer y. rVebraska,262 U.S.390 (1923) (parallel

citations omitted).

BLEGALl 2764971 5. I

stands to lose a basic 'liberty' just as surely as if she were being prosecuted for a

criminal offense." /d. at 896.

Then, addressing whether, in light of the nature of the interest involved, the

proceedings were of a character that should dictate appointment of counsel, this

Court first noted that "[c]hild custody determinations are among the most difficult in

the law," in that deciding what will be best for the child "requires a delicate process

of balancing many complex and competing considerations that are unique to every

case." /d. The Coutt continued:

A parent who is without the aid of counsel in marshaling andpresenting the arguments in her favor will be at a decided andfrequently decisive disadvantage which becomes even more apparentwhen one considers the emotional nature of child custody disputes,and the fact that all of the principals are likely to be distraught. Thisdisadvantage is constitutionally impermissible where the other parenti-^^ --^ ^ii---^.. ^..--l:^i L.. ^ ^..Lii^ ^^^^^.,flal; all attul lley SuPPlleu uy ¿1 Puull'v clvÞllrsy.

/d. (footnote omitted).

Thus, this Court has already concluded, in Flores, that because of the

fundamental nature of the right to parent and the extremely difficult, complex and

emotionally-charged nature of child custody proceedings, due process requires the

appointment of counsel to represent an indigent party if the other party was afforded

counsel by a public agency. The only distinction between Flores and the present

case is that the adversary party here had a private, rather than public, attorney -- a

difference the ABA respectfully submits should be immaterial for purposes of either

due process or equal protection analysis under the Alaska Constitution.

oLEGALl 2764971 5.1

A. Due Process

ln the Matter of K.L.J., 813 P .2d 276 (Alaska 1991 ), this Courl expanded its

analysis in F/ores and applied the three-part balancing test afticulated by the

Supreme Courl of the United States in Mathews v. Eldridge, 424 U.S. 319, 335

(1976), for evaluating claims under the Due Process Clause of the Alaska

Constitution. As set out in ln the Matter of K.L.J., this test considers: (i) the private

interest involved and affected by official state action; (ii) the risk of an erroneous

deprivation of or adverse impact on that interest based on the application of existing

procedures and the value, if any, of additional or alternative procedures; and (iii) the

State's interests, including the financial and/or administrative burdens associated

with the adoption of new or different procedures. 813 P.2d a1279, citing Keyes v.

lJ,,^nnn lJnan Alao!¿a In¡ 7Ãn Þ tÅ 2/1? ?Ã2 /Alaalzo lORq\ Ac fha f-nrrrf cfafodi iL¿tiia,it r<i r |v'ù¡-/. ,'-ìt'..¡rJl'.<i, :,t',',t ¿ L"J : .4u

"[t]he crux of due process is an opportunity to be heard and the right to adequately

present one's interests." /d. (citations omitted). With respect to "the right to

adequately present one's interests," an indigent litigant's need for counsel has great

urgency, for, as this Court has noted, " 'the right to be heard would be, in many

cases, of little avail if it did not comprehend the right to be heard by counsel,' "

Reynolds v. Kimmons, 569 P.2d799,801 (Alaska 1977), quoting Otton v. Zaborac,

525 P .2d at 539 (citing Powell v. Alabama, 297 U.S. 45, 68-69 (1932)).

As regards the first element of the three-part due process analysis, there can

be no doubt after Flores that the parental rights implicated by child custody disputes

involve an interest that is fundamental. See 598 P.2d at 895 ("one of the most basic

of all civil liberties [is] the right to direct the upbringing of one's child"). Similarly, in

1EGA1127649715.1 I o

ln the Matter of K.L.J., this Courl recognized that "[t]he right to the care, custody,

companionship and control of one's children 'undeniably warrants deference and,

absent a powerful countervailing interest, protection.' " B',l3 P.2d air279, quoting

Stanley v. Illinois,405 U.S. 645, 651 (1972)', see a/so ln re Adoption of 4.F.M.,15

P.3d 258, 268 (Alaska 2001) (noting that a parent's loss of the custody of his or her

child may constitute "punishment more severe than many criminal sanctions"

(citations omitted)); S.J. v. L.T.,737 P.2d 789,796 (Alaska 1986) ("parents should

not be deprived of the fundamental rights and duties inherent in the parent-child

relationship except for grave and weighty reasons" (citation omitted)); Turner v.

Pannick,540 P.2d 1051, 1055-56 (Alaska 1975) (Diamond, J., concurring) ("right of

parents to nurture and direct the destiny of their children" is "fundamental").

Regarciing the seconei eiemeni of the three-pari 'oaiancing tesi, Fio¡-es has,

again, established a heightened risk of erroneous deprivation when an indigent party

lacks legal representation in a contested custody dispute, where "all of the principals

are likelyto be distraught.'598 P.2d at896; accord lnthe Matterof K.L.J.,813 P.2d

at 280 (quoting Flores); see Jenkins v. Handel,10 P.3d 586, 590 n.12 (Alaska 2000)

(child custody determinations are the most difficult in the law). The difficulties stem

not only from the intense, emotionally-charged backdrop against which custody

decisions are ordinarily made, but also from the amorphous nature of the governing

legal standard. See, e.9., Bellottiv. Baird,443 U.S. 622,655 (1979) (Stevens. J.,

concurring) (noting that the "best interests of the child" standard "provides little real

guidance to the judge, and his decision must necessarily reflect personal and

societal values and mores"); see also ln re Emilye A. v. Ebrahim A., 9 Cal. App. 4th

LEGALl 276497 1 5.1

11

1695,1709 (1992) (observing that "[]ew lay people are equipped to respond to the

legal complexity of [custody] proceedings," especially when dealing with the

"emotionally devastating potential loss of . . . their relationship with their children").

Even putting the potentially wrenching emotional aspects of a child custody

proceeding to one side, few lay parents are capable of effectively performing the

essential advocacy functions that a custody case requires, absent the assistance of

an attorney. The critical responsibilities "of finding the controlling legal principles[,]

uncovering the relevant facts, following complex rules of evidence and procedure

and presenting the case in a cogent fashion" that informed the ABA's deliberations

in adopting Policy #112A (see ABA Report at 9-10 (Appendix A)), are integral

features of all contested custody proceedings, which unrepresented pafties have

1i -¡- --- - - -i --.-.-.lltlle, lI arìy, Çtìaf lce ul uaf lyll19 uul. öuuusÞ5lully.

King v. King, 174 P.3d 659 (Wash. 2007), illustrates the daunting challenges

pro se parents can face in child custody disputes. Brenda King was "a housewife

with a ninth-grade education and no money [who] was forced to act as her own

attorney during a five-day divorce trial." Jonathan Martin, Courf Ru/es lhaf Spouses

Aren't Entitled To Public Divorce Lawyers, Seattle Times, Dec. 7, 2007. Mrs. King's

then-husband was represented by an attorney. ln representing herself during the

course of the bitter dispute over custody of the couple's three children, Mrs. King

"gave speeches when she was supposed to ask questions," "didr'ì't subpoena any

witnesses," ar'ìd "didn't know how to present evidence against her then-husband,

including Child Protective Services reports about him." /d; see a/so 174P.3d at 673-

76 (Madsen, J., dissenting) (Mrs. King "affirmatively did her own case harm"

LEGAL12764971'.1 12

because she "was unable to prevent the admission of evidence that a lawyer would

have been able to keep out," "could not separate her emotions from her conduct as

her own legal representative," and "had exhausted the court's patience" by the end

of the trial).

Having failed to bring to the attention of the coutl information favorable to her

cause that an attorney would routinely present, Mrs. King, a stay-at-home mother

who had taken care of her children full-time for the previous 10 years, lost the

custody fight. As a result, she was permitted to see her children only every other

weekend. Like so many others, the King case demonstrates clearly "how much [is]

at stake at trial" for parents in custody disputes "[a]nd how complicated it is for

someone without a law degree to present [their] story in any meaningful way in a

---..i.-^^-- ,t ñ-..:i -!^.-,---^^å^- C-i^^,,i,i t^^ !-^^- D^ A^^^;^l^Å A4t¡i-rt¡tr¡r-. ìn l"it¡iluouf l"f uuf f l. ualvtu tr)UWtriilllilìil.trit, ùf ruurLJ Lttv rvvt uv tlPyviltLvtf, r1LLv,t,çlti) ,,t vtvtt

Cases?, Seattle Times, May 31 ,2007 (internal quotation marks and citation

omitted).

Frase v. Barnhart, S4O A.2d 114 (Md. 2003), also highlights the significant

need for appointed attorneys who can assist indigent parents seeking to preserve

rights to custody of their children. When Deborah Frase, mother of three, was

incarcerated on a misdemeanor drug possession charge, her mother placed her

youngest son in the care of the Barnhads, a family from the mother's church.

Ms. Frase reclaimed her three-year old son six weeks after he went to live with the

Barnharts, but the Barnhads then sued for custody of the boy. Unable to obtain free

legal assistance, Ms. Frase was forced to represent herself in seeking to retain

custody of her child.

13LEGALl 2764971 5.1

Although Ms. Frase spent hours attempting to prepare her case, she did not

depose the Barnharts or othenvise seek discovery regarding their claims, failed to

identify salient points of law, could not question witnesses effectively, missed critical

objections, and had little understanding of the rules of evidence or procedure. See

Brief of Appellant, Frase v. Barnhart,840 A.2d 114 (Md. 2003) (No. 6), at 29-31

(explaining that because Ms. Frase had only a "rudimentary grasp of Maryland's

family law" gleaned from her research in the courlhouse library, she "was unable to

challenge or limit [the Barnhart's] testimony" about disputed facts and "th[e] case

was tried before the master and argued to the circuit court without a word of

advocacy about the defining constitutional and family law issues"). The magistrate

judge who heard the case ultimately found Ms. Frase to be a fit parent entitled to

custociy oÍ her own chiici, but aiso attacheci severai eonejitions to the cusiociy awa¡-cj,

including the requirement that the Barnhafts' son be permitted to have regular

visitation with Ms. Frase's child.e

The strategic and substantive difficulties experienced by the pro se litigants in

the illustrative King v. King and Frase v. Barnharl cases are also seen in the

considerations that led this Court to conclude that due process principles under the

Alaska Constitution required the appointment of counsel to represent an indigent

litigant seeking to oppose the adoption of his child by his ex-wife's new husband in

e Ms. Frase was able to obtain counsel on appeal, and the Maryland Court ofAppeals vacated the custody determination on the grounds that the conditionsimposed by the lower court impermissibly infringed upon Ms. Frase's fundamentalright as a parent "to make child rearing decisiorìs." Frase,840 A.2d al12B (quotingTroxel v. Granville, 530 U.S. 57, 72-73 (2000)).

LEGALI 2764971 5.1

14

In the Matter of K.L.J. There, in ovefturning the lower court's refusal to appoint

counsel, this Court catalogued the unrepresented father's missteps in the

proceedings below, including that he

. failed to show the lower courl that garnishment of his income by theState was the functional equivalent of voluntary payments for thepurpose of satisfying his child support obligation (813 P.2d at 281);

. failed to seek correction of the trial court's erroneous determination thathis indigency was not a justifiable cause for his failure to pay childsupporl, although the applicable Alaska statute -- AS 25.23.050(aX2) --

expressly provides otheruuise (id. );

. failed to effectively advance the argument that his indigency and lack oflegal sophistication, rather than a lack of care or concern, explained the

apparent "half-heartedness" that characterized his attempts to maintain

contact with his child (/d.);

. failed in his attempt to introduce documentary evidence that wouldhave demonstrated his continuing efforls to locate his daughter,L^^^..^^ +L^ ^.,:l^^^^ .^.^^ ñ^+ ^rannrlrr ar ¡tfranfinofarl /irl \'uuuduÞu ll lUl E:vluv! tL-u vrt,.l-> | !1J'- iJr l-,vç! !)r clrrL! rsr rLrvqLvv \rv'l,t

. failed to object to the introduction of prejudicial evidence by his formerspouse because he did not know how to do so properly (id.); and

o prejudiced his own case by his inability to articulate his interests or

explain his actions in a coherent and contextually appropriate manner(id. at281-82).

These are all matters that this Court recognized would have been dramatically

different if the unrepresented father had been provided an attorney, leading the

Couft to conclude that "[o]verall, this case clearly demonstrates the need for

appointed counsel." Id. at282.

The foregoing authorities demonstrate that the parental rights implicated by

child custody determinations are fundamental, and the risks posed to those rights

when an unrepresented indigent parent must litigate a contested custody proceeding

LEGALl 2764971 5.1

15

against a party who is represented are severe. As to the final factor, the State's

interest, this Court noted in ln the Matter of K.L.J., supra, when a father opposed the

adoption of his child by his ex-wife's new husband, that "[flirst and foremost, the

state has an interest in the children" and "[t]o this end, the state shares the parent's

interest in an accurate and just decision; the interests of both the state and the

parent in the availability of appointed counsel coincide here." 813 P.2d at 279-80

(citation omitted). Accordingly, "[t]he state's interest in its citizens receiving a just

determination on such a fundamental issue cannot be open to question." Id. at 280.

ln child custody matters like the case at bar, the interests of the State and the parent

in an accurate and just determination similarly coincide.

While the State also maintains a valid countervailing concern for the costs

--^^-:-¡î.-,:!L --.^^:-i:^- ^^,,^^î í^- iîiâ^+ ii+ìÂ^^+ê in íirio ¡nnfavl iha ÂFÈÂa5sLlçla[eL¡ wl[f I aPPullll.lf lg uuuilÞut t\Jl llr\Jr9çrrr lrr¡vclrrLÐ ilr Lrilù vvrrr\i^rr r¡rv, \u, r

submits that, as this Courl stated in ln the Matter of K.L.J., "'though the State's

pecuniary interest is legitimate, it is hardly significant enough to overcome private

interests as important as those here[.]"' ld. at 280 (citations omitted).

Because the three factors of the balancing test suppod a conclusion that due

process requires the appointment of counsel in cases such as this one, the ABA

respectfully suggests that the distinction between F/ores and the case at bar -- i.e.,

that Mr. Olson's former spouse was represented by a privaúe attorney in the

proceeding below - should not prevent a conclusion that the critical strategic and

LEGALl 2764971 5.1

16

substantive disadvantages for the unrepresented indigent parent are precisely the

same in each situation.lo

B. Equal Protection

Article l, section 1 of the Alaska Constitution provides, in pertinent part, "that

all persons are equal and entitled to equal rights, oppodunities, and protection under

the law[.]" Under Flores and the statute codifying its result, Alaska Stat.

44.21.a1O(a)(a), an unrepresented indigent litigant that is party to a child custody

proceeding in which the adversary party is represented by counsel provided by a

public agency is categorically entitled to have counsel appointed to represent his/her

interests. From an equal protection perspective, the ABA submits, an

unrepresented indigent litigant under the same circumstances as those in F/ores,

------t 1^- LL^ 1^^L aL^¿ l^^-^ ¿l^^ ^J.,^-^^-.' ^^-+. -^^-^^^^Í^¡ l-., ^.i*r^*a aar rn¡alëÃtjElit ¡Ui t¡ i\t ¡dut ti iiái lisiti LiiiJ dUVçiÞc¡¡y Vdlty vv6¡Þ ¡ìtVIvÞç¡ ¡iÇ!¡ ¡iJ iJ¡ivcitÇ vv\¡iiùçir

should not be denied the appointment of counsel.

The analytical framework that governs the determination of whether a

provision of Alaska law survives scrutiny under the equal protection clause was

10 While, in their respective submissions of information per this Court's request,both the Office of Public Advocacy and the Alaska Court System have raisedconcerns regarding the cost implications of recognition of a categorical right toappointment of counsel sought in this case, such considerations should not impedethis Court's exercise of its obligation to vindicate constitutional rights. See Dep't ofHealth & Soc. Serys. v. Planned Parenthood of Alaska, lnc.,28 P.3d 904,913-15(2001) ("Legislative exercise of the appropriations power has not in the past, andmay not now, bar courts from upholding citizens' constitutional rights. lndeed,constitutional legal rulings commonly affect State programs and funding."); seegenerally Bounds v. Smith,430 U.S. 817,825 (1977) ("[T]he cost of protecting a

constitutional right cannot justify its total denial.").

LEGALl276497't5 1

17

afticulated by this Court in Alaska Pacific Assur. Co. v. Brown,687 P.2d 264 (Alaska

1984). Brown states, in pertinent part

Id. at

First, it must be determined at the outset what weight should be

afforded the constitutional interest impaired by the challengedenactment. The nature of the interest is the most important variable in

fixing the appropriate level of review. Thus, the initial inquiry underArlicle I, section 1 ... goestothe level of scrutiny. ... Depending on

the primacy of the interest involved, the state will have a greater orlesser burden in justifying its legislation.

Second, an examination must be undertaken of the purposes served by

the challenged statute. Depending on the level of review determined,the state may be required to show only that its objectives werelegitimate, at the low end of the continuum, or, at the high end of thescale, that the legislation was motivated by a compelling state interest.

269i accord State v. Schmidt, 323 P.3d 647, 662 (Alaska 2014); Alaska Civil

Liberties l,Jnion y. Sfafe, 122P.3d781,789 (Alaska 2005). Consideration of these

L.-.^ i-^a^-^ rL^ ^rl^ ^,.¡-*i+^ i^ ^,,ffi^i^n{ {a raonhra flra arrrral nrnfantinn ic.e,l¡c in thef YYV ¡qvtvl Vr (r lv ¿ le, r vsv¡ ¡ ¡rtvt rv -¡ - --- |

case at bar.

As discussed above, the fundamental nature of a parent's interest in exerting

control over the upbringing of his or her child has been repeatedly acknowledged by

this Court. E.g., tn re Adoption of A.F.M., 15 P.3d at 268; In the Matter of K.L.J.,

813 P.2d a|279,283; S.J. v. L.T.,737 P.2d at 796; Flores, 598 P.3d at 895 (citing

authorities). A law failing to accord that fundamental interest equal weight as

between similarly-situated parents must be justified by a compelling state interest.

Brown, supra', see gene ralty Herrick's Aero-Auto-Aqua Repair Serv. v. Deparfment

of Transp. & Pub. Facilities, T54 P.2d 1111, 1114 (Alaska 19BB) ("The burden on the

State increases in proportion to the primacy of the interest involved. Eventually this

burden reaches the equivalent of the federal compelling state interest test in those

1BLEGALl 2764971 5.1

cases where fundamental rights ... are at issue." (Citation omitted.)). Here, there is

no compelling state interest that might justify denying one indigent parent a right to

counsel where the adversary parent is represented by a private attorney, while

granting that right to another indigent parent whose adversary is represented by a

public sector attorney.

AS 44.21.410(aX4) codified the ruling in F/ores that an indigent party is

entitled to counsel in a child custody proceeding if the other parly is represented by

counsel from a public agency,t' That legislative action, however, does not constitute

a justification or provide a rationale for refusing a similarly-situated indigent parent

appointed counsel based solely on the happenstance that the adversary pafty's

counsel is private rather than public. This is especially true given this Coutl's

¡.-- : =::La a--- - -t :.- t-t^-^^ TL^-^ 4t^:^ fi^',.+ i.l^nfifin¡l *l.t^i-easoRs Toi- TiÍlu¡ilg a f ¡g n[ iu uoui isei i¡ i riu, vù. i r tni ç, U itÐ vvt.¡r L lL¡çr ili I içL¡ Lr re

inherently difficult nature of child custody determinations and the complex,

emotionally-charged character of child custody proceedings as grounds for its

conclusion that the disadvantage for an unrepresented parent, when the other

parent has an attorney, is "constitutionally impermissible." 598 P.2d at 896. Those

same daunting obstacles are faced by an unrepresented parent regardless of

whether the lawyer representing the parent's adversary is public or private. Under

AS 44.21.410, however, parents in the former group have a categorical right to

appointed counsel, while parents in the latter group have no right to appointed

tt See In re Alaska Network on Domestic Violence & Sexua/ Assau/f, 264 P.3d 835,

838 (Alaska2011) (language of AS 44.21.a1O(a)(a) "appears to have been drawn

directly from Flores" (citation omitted)).

LEGALl 2764971 5.1

19

counsel. That is not equal treatment under the law, and because there is no

compelling state interest that validates the inequality, the lower coutl's denial of

counsel to the Appellant, Mr. Olson, should be deemed a violation of his right to

equal protection under this State's Constitution.

II. THE APPOINTMENT OF COUNSEL FOR AN ¡NDIGENT LITIGANTIN A CONTESTED CUSTODY PROCEEDING WILL FOSTERFA¡RER, MORE RELIABLE OUTCOMES, ENHANCE JUDICIALECONOMY AND EFFICIENCY, AND PRESERVE THE NEUTRALITYOF THE JUDICIAL ROLE

A recurring theme in the Report of the Presidential Task Force on Access to

Civil Justice that resulted in adoption of ABA Policy #112A in 2006 is the problem of

unequaljustice under law, as routinely encountered by those who lack the economic

means to secure legal representation when their rights or interests are placed at risk

¿i--^..-i^ ii.-^ :^;á:^i:.,^^ ^í ^+L^- ^-;.,^å^ ^^-ii^a ar iha Qíaia Âc tlra TacL- Frlrr--¡ãulluugf I Ulu lf lluauvgs ul ul,lttrt Pl tvcltc yøuLrçÐ vl Llltt \rLcrts. nù Lrtv rqrr\ r vrvv

observed:

On a regular basis, the judiciary witnesses the helplessness ofunrepresented parties appearing in their courtrooms and the unequal

contest when those litigants confront well-counseled opponents.Judges deeply committed to reaching just decisions too often mustworry about whether they delivered injustice instead of justice in such

cases because what they heard in court was a one-sided version of thelaw and facts.

ABA Policy #1124, Report at 7.

The serious, real-world implications of this phenomenon have been

specifically, and repeatedly, acknowledged within the context of child custody cases,

in which fundamental parental rights may hang in the balance. Thus, although

declining to find a categorical federal due process right to counsel in a termination-

of-parental-rights case in Lasslfe r v. Department of Socla/ Services of Durham

1EGA1127649715 1 20

County, 452 U.S. lB (1981), Justice Stewad, in his opinion for the majority,

observed

lf, as our adversary system presupposes, accurate and just results aremost likely to be obtained through the equal contest of opposedinterests, the State's interest in the child's welfare may perhaps best beserved by a hearing in which both the parent and the State acting forthe child are represented by counsel, without whom the contest ofinterests may become unwholesomely unequal.

ld.at28. ln a similarvein, in Frase v. Barnhaft, supra, in concurring inthe majority's

decision favorable to the unrepresented mother on the merits of the custody dispute

but criticizing the majority's refusal to resolve the rightto-counsel issue, Judge

Cathell of the Maryland Court of Appeals candidly acknowledged that an

unrepresented parent, "when opposed by competent counsel for the opposing party

(sometimes opposed by an organ of the State with its legions of lawyers), is

normally not afforded the equal protection of the laws, i.e., an equal access to justice

to which all citizens are entitled -- in spite of the efforts of this Courl to afford that

equality." 840 A.2d at 134-35 (Cathell, J., with whom Bell, C.J. and Eldridgê, J.,

joined, concurring in the result).12

12 As sixteen retired Washíngton State Court Judges asseded in an amicus brieffiled in the Washington State Supreme Coutl:

fllndigent persons without counsel receive less favorable outcomesdramatically more often that those with counsel. This disparity in

outcomes is so great that the conclusion is inescapable -- indigent prose litigants are regularly losing cases that they should be winning ifthey had counsel.

Brief for Retired Washington Judges as Amici Curiae Supporting Appellanf, King v.

Kng, 174 P.3d 659 (2007) (No. 79978-4) ("Brief of Retired Washington Judges"), at6.

LEGALl 2764971 5.1

21

Simply stated, recognition of a right on the parl of indigent litigants to the

appointment of counsel at public expense in child custody cases where the

adversary party is represented by counsel would address the fairness imbalance

and enhance the reliability of the outcomes. The types of legal errors that infected

the proceedings in the trial courl in tn the Matter of K.L.J., sLlpra, could have been

avoided had the appellant had the benefit of appointed counsel, as this Court

expressly acknowledged. 813 P.2d aI281-82; see a/so Lassiter, 452 U.S. at 44

(Blackmun, J., with whom Brennan and Marshall, JJ., ioined, dissenting) ("The

provision of counsel for the parent would not alter the character of the proceeding,

which is already adversarial, formal, and quintessentially legal. lt, however, would

diminish the prospect of an erroneous termination, a prospect that is inherently

suostaniiai, given the gross eiisparity in power anci i-esoui-ees 'oetweei¡ the State and

an uncounseled indigent parent." (Footnote omitted.))

While the clear legal errors in /n the Matter of K.L.J. made the trial coutt's

refusal to appoint counsel ripe for reversal -- see 81 3 P.2d at 282 & n.6 ("Even if we

were not to establish a bright line right to counsel, we would conclude that the facts

here are compelling enough by themselves to indicate a violation of Ronald's

procedural due process rights.") -- prejudicial error may not always be obvious when

reviewed in hindsight. Thus, as Justice Blackmun observed in dissenting in Lassifer

from the majority's holding that case-by-case appellate review of parental neglect

actions involving an unrepresented defendant should suffice to vindicate due

process concerns:

LEGALl 2764971 5.1

22

The pleadings and transcript of an uncounseled termination proceedingat most will show the obvious blunders and omissions of the defendantparent. Determining the difference legal representation would have

made becomes possible only through imagination, investigation, and

legal research focused on the particular case. Even if the reviewingcouft can embark on such an enterprise in each case, it might be hard-pressed to discern the significance of failures to challenge the State'sevidence or to develop a satisfactory defense. Such failures, however,often cut to the essence of the fairness of the trial[.]"

452 U.S. at 51. This Court expressly relied upon this reasoning in rejecting a case-

by-case approach to the determination of the right to appointed counsel in In the

Matter of K.L.J., 813 P.2d at 282 n.6, and instead ruled in favor of a categorical right

for indigent litigants in the circumstances of that case. ln order to enhance fairness

and reliability, and to increase the public's awareness of such enhanced fairness

and reliability,l3 the right to appointment of counsel on behalf of an indigent party in

aü chiicj custociy proceeciings in which the aciversar-y paÌ-ty has an atioi'ney shouici

similarly be recognized.

This would benefit not only the unrepresented litigant, but the judicial process

as a whole. While the prejudice suffered by an indigent parent whose request for

appointed counsel is denied cannot be overstated, the unsatisfactory experiences of

the judges who must preside over the ensuing proceedings also should be

considered. No voices have been more outspoken with respect to the difficulties

presented for the judiciary in those instances than those of jurists themselves.

13 See, e.g., tndiana v. Edwards,554 U.S. 164, 177 (2008) ("[P]roceedings must

not only be fair, they must 'appear fair to all who observe them."' (quoting Wheat v.

IJnited Sfafes,486 U.S. 153, 160 (1988))).

LEGALl 2764971 5.1

23

Thus, for example, in urging the Supreme Court of Wisconsin to exercise

original jurisdiction over an action presenting a civil right to counsel issue, eleven

then-current and retired judges of the Circuit Courts for Milwaukee and Dane

Counties, as amici curiae, stated:

Due to a fundamental lack of understanding of the process, incombination with a deficiency of access to resources and guidance inthe face of their complicated legal issues, self-represented litigantsproduce time-consuming frictions at every level of the state couftorganization.

* lç *

One self-represented party causes problems for all litigants in theaction, lt goes without saying that even the most determined self-represented individual finds herself significantly disadvantaged in thelitigation by a typical inability to understand and clearly and properlyassert her cause (or lack thereof). However, represented litigants alsoexperience problems arranging for depositions and other discovery,nirrinn nnfir.a qnd l^rainn nrnnarlrr nnfifiad and reqnnndinn fo noorlvvivl¡ ¡v i ¡vilvv q¡ ¡u L'v'¡¡ ¡v iJ¡ !"Évr i 5: !Y Ì---"¿'

articulated but often colorable claims and defenses. These problemssignificantly increase the expense for the represented party.

Brief Amicus Curiae of Eleven County Judges in Supporl of Petition Requesting

Supreme Courl Take Jurisdiction Of Original Action, Kelly v. Warpinskl (No. 04-

2999-OA) ("Brief of Eleven Wisconsin County Judges"), at 4-7 (Wis. 2004)

(emphasis in original; citations omitted);1a see a/so Brief of Retired Washington

Judges at3-4 ("[T]he significant costs to the judicial system and society that result

where litigants lack counsel cannot be ignored. These costs include, for example,

the burden faced by judges to make correct rulings when the record is incomplete or

contains material that would have been excluded if an unrepresented pady had

14 Available at htt o roloovertv-l aw-l i bra rvlcase/5 5B 00/5 5B

55816C1.pdf

LEGALl 2764971 5.1

o://www.oovertvl AW

24

16t

been represented, the extra time required of judges and judicial staff to guide pro se

litigants through court proceedings, and the burden of litigating cases that both

parlies represented by counsel would likely have settled."); Lassifer,452 U.S. at29

n.5, citing Note, Representation in Child Neglect Cases: Are Parenfs Neg/ected?, 4

Colum J.L. & Soc. Prob.230,250 (1968) (referencing findings lhat72.2% of

surveyed New York Family Court Judges agreed that it was more difficult to conduct

a fair hearing in cases in which one parent was unrepresented, while only 1 1.1%

disagreed).

Based on the same array of considerations, retired judges of this State's

courls, in Office of Pubtic Advocacy v. Alaska Cour-t Sysfem, et al., No. 5-12999

(Alaska 2009), as amici curiae, stated.

!^ ^^^^^ i^,,^!.,:ñA lì4i,-¡.-,;-,fc. Ami,^'i !-,=r;a =f firmac f=lran n=inc fnlll vclùçÞ lllvL,rlvlllv Prv i)9 llLlvcr(lllir, ^r¡rrvr rrqYv qr !¡rrrve (sr\v,

explain how a trial works, offering details about deadlines, trialschedules, rules, burdens of proof, and motions practice. But evenwith such effotls to help clarify requirements, unnecessarily protractedlitigation may result. Further, ". . . attorneys representing a clientagainst a pro se litigant find themselves returning over and over tocoud due to the pro se litigant's lack of understanding of the legalprocess. . . . tTlhe community as a whole is impacted by the backlogcreated by the spillover from pro se cases, particularly in the area ofdomestic relations."

Brief of Retired Alaska Judges Amicus Curiae ln Support of Appellee Jonsson ("Brief

of Retired Alaska Judges"), filed November 19, 2008, at 21 (citations omitted).15

15 Similarly, Federal District Judge Robert Sweet concluded that "[a]s every trialjudge knows, the task of determining the correct legal outcome is rendered almostimpossible without effective counsel." Hon. Roberl W. Sweet, Civil Gideon andConfidence in a Jusú Society, 17 Yale L. & Pol'y Rev. 503, 505 (1998).

LEGALl27649715 1

25

Each of these sets of retired jurists thus concur that numerous impediments

result when pro se litigants must fend for themselves. As the retired Alaska jurists

stated: "Under Matthews v. Eldridge, the impoftance of the interests at stake, the

inherent complexity and fraught nature of contested custody cases, the substantial

threat to correct determinations, and the administrative burden on the courts, all

point to the same conclusion: counsel must be provided at public expense to an

indigent parent facing a represented party in a contested custody case." Brief of

Retired Alaska Judges at27. See a/so, ABA Model Access Act $ 1.F ("[p]roviding

legal representation to low-income persons at public expense will result in greater

judicial efficiency by avoiding repeated appearances and delays caused by

incomplete paperwork or underprepared litigants, will produce fairer outcomes, and

- ,r r---Lr-- tt\ /^^- ^-^-^^,-l:--

rì L^-^¿^\Wlii pfomote puþiie eonTiqei-tce in ine SySIemS OT jusl¡ce. j (See r.\P[icí¡uiÃ i] Í ieictvl.

An interrelated, though critically independent aspect of a court's dealings with

unrepresented litigants is the ethical quandary for judges who must balance their

natural inclination to assist pro se litigants and the requirements of judicial

impartiality. As this State's retired judges stated:

Judges are forced to walk a fine line when presiding over a case inwhich an unrepresented pady is pitted against a lawyer. Amici are wellacquainted with the conflict: on one hand, the judge must remainimpartial. Even if fairness is maintained, the appearance of fairnessand neutrality may fall. Judges polled in Alaska explained the conflict:

a judge frequently must assume either the role of mediator, or atother times attorney, for each of the unrepresented individuals, therebyputting the judge in an inappropriate position."

Brief of Retired Alaska Judges at 18 (citation omitted); see a/so Brief of Retired

Washington Judges at '13 ("Judges also face a difficult ethical quandary in pro se

LEGALl 2764971 5.1

26

cases. Without assistance from attorneys, pro se litigants frequently expect judges

to assist them in navigating complex procedural rules, as well as completing and

filing proper forms."); Brief of Eleven Wisconsin County Judges at 6 ("Judges

likewise endanger violation of the judicial code by providing help to [unrepresented]

litigants." (Citations omitted.)); ABA Policy #112A, Report at 10 ("ln seeking to insure

that justice is done in cases involving pro se litigants, coufts must struggle with

issues of preserving judicial neutrality (where one side is represented and the other

is not)").16

A determination that indigent litigants are entitled to the appointment of

counsel in the circumstances presented by this case, thus, will also yield significant

collateral benefits in fostering greater judicial economy and efficiency, and in

----:-¡:----í!-- -ai^: l' :- al__-_

avoiüing iÍle etilicai äoilson's unoice îoi'ïne jijûges pi"esiqing in tnese cases.

* * *

Finally, the ABA notes that recently, in a guardianship proceeding that was

initiated by private parties, the Supreme Judicial Court of Massachusetts held that

an indigent parent has a right under the Massachusetts Constitution to appointment

16 See a/so Bauman v. Sfafe Div. of Family & Youth Servs., 768 P.2d 1097,1097-98 (Alaska 1989) ("To 'require a judge to instruct a pro se litigant as to eachstep in litigating a claim would compromise the court's impartiality in deciding thecase by forcing the judge to act as an advocate for one side."' (Citations omitted in

original.)).

LEGALl 2764971 5.1

27

of counsel, just as exists, by statute, in a guardianship case brought by the State,

stating:

There is no reason why an indigent parent whose child is the subject ofa guardianship proceeding should receive the benefit of counsel only ifthe State is involved. To the contrary, there is every reason, given thefundamental rights that are at stake, why an indigent parent is entitledto the benefit of counsel when someone other than the parent, whetherit be the State or a private entity or individual, seeks to displace theparent and assume the primary rights and responsibilities for the child,whether it be in a care and protection proceeding, a terminationproceeding, an adoption case, or a guardianship proceeding'

Guardianship of V.V., 470 Mass. 590, 593 (2015).

The ABA respectfully submits that the same analysis should be applied to

child custody proceedings. The ABA accordingly urges this Court to rule that, under

Alaska's Constitution, an indigent parent has a right to appointment of counsel when

+L^ ^+L-^- ^^*^^+ l-^^ hFii ratn anr rnoalrt rv vr¡ tvr lJv¡

CONCLUSION

For all of the foregoing reasons, amicus curiae the American Bar Association

respectfully requests that this Court reverse the decision below.

LEGALl 276497r 5.1

28

DATED: September B, 2015

Respectfully submitted,

PERKINS COIE LLP

Tho aniel, Alaska Bar No. 8601003By

["-

Paulette Brown (pro hac vice pending)Counsel of Record

PresidentAMERICAN BAR ASSOCIATION321 N. Clark StreetChicago, lL 60654-7598(312) eB8-5000

Theodore A. Howard (pro hac vice pending)D.C. Bar No. 366984WILEY REIN LLP1776 K Street, N.W.t

^ t-^l^:'^ -t^ - ll//\ .1^r'lr'lr1

VVASí ¡itigiUí ¡, ii\r ¿VUUO

(202) 71e-7000

Counsel for Amicus CuriaeAme rican Bar Assoc i atio n

LEGALl27649715 1

29

CERTI FICATE OF TYPEFACE

The undersigned hereby certifies that pursuant to Appellate Rule 513.5, the foregoingBrief of the American Bar Association as Amicus Curiae is proportionately spaced andis Arial 12.5 point.

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing brief wasserved via U.S. Mail on the following:

Dennis OlsonP.O. Box 2083Palmer, Alaska 99645

Stephanie OlsonP.O. Box 521373Big Lake, Alaska 99652

Greg RazoAlaska Native Justice CenterP.O. Box 93330Anchorage, Alaska 99509

Christine PateAlaska Network on Domestic ViolenceP.O. Box 6631Sitka, Alaska 99835

Mark ReganDisability Law Center3330 Arctic Blvd., Suite 103Anchorage, Alaska 99503

Chad W. HoltOffice of Public Advocacy900 West. 5th Avenue, Suite 525Anchorage, Alaska 99501

James J. Davis, Jr.Alaska Legal Services Corporation1016 West 6th Avenue, Suite 200Anchorage, Alaska 99501

LEGALl 2764971 5.1

30

ç.-

Paulette Brown, PresidentAmerican Bar Association321 N. Clark StreetChicago, lllinois 60654-7598

Theodore A. Howard1776 K Street, NWWashin c 20006

Thomas M. Daniel

LEGALl 2764971 5.1

31

APPENDIX A

112A.Unanimously Approved by ABA House of Delegates Attgust 7, 2006

¿\IV{EIìI CAN llAlì ¿\ SS OCI A'll f ON

TASK !-ORCII ON ACCIìSS TO CIVIL.IUSTICtrSECTION ()F BUSINIìSS LAW

COMMISSION ON TNTERIiST ON LAWYI,RS' TIìUST ACCOUNTSCOMMISSTON ON LAW AND AGING

SECTION OF LITIGATIONSTICERING COMMITTE,E ON THE UNMBT LfiGAI, NEI,DS OF'CI{ILDIìIJN

SPECIÀL COMMITTDE ON ÐEATH PENAL'TY REPRESENTATIONSTANDING COMMITTEtr ON LT'GAL AID AND INDIGIINT DEFENDANTS

COMMISSION ON IMMIGRATIONASSOCIATION OF THE I}AR OF THE CITY OF NEW YOru(

KING COUNTY Iì.A.R ASSOCTATTON (TVASHTNGTON)MAINII STATE IìAR ASSOCIATION

NIIW YORK COUNTY LAWYBII.S' ASSOCIATIONTHB PFITLADELPHIA BAR ASSOCIATION

NATIONAL LEGAL ATD AND DEFENDtrR ASSOCTATIONSECTION OF"ADMINISTRATIVE LAW AND REGULATORY PIìACTICTT

WASITINGTON STA.TB I]Ä.R ASSOCIATIONROSTON BÁ.R ¡rSSOCI¿.TÍON

COLORADO BAII ASSOCIATIONNEW YORK STATI,I BAII ASSOCIATION

CONNBCTICUT BAR ASSOCIATIONMTNNITSOTA STATB BAIì ASSOCIATION

LOS ANCìBLES COUNTY BAIì ASSOCIATIONTHE BAR ASSOCIATION OF TTIE DISTRICT OF COLUI\{BIA

SECTION OF LAI}OR AND EMPLOYMENT LAWSECTION OF' INDIVIDUAL RIGIJTS AND RESPONSIBTLTTIES

REPOII.T TO TI{N HOUSN] OF DIìLEGA'I'BS

RECOMMlll{ÐATTON

I RESOLVED, Tlrat the Anrerican Bar Assooiation urges fedclal. state, and tcrritorial2 governments to provide legalcounselas a matter of right at public expcrlse to low irtconre

3 persons in those categories of aclversarial proccedings wlrere basic human needs are at stake,

4 such as those irrvolving shelter, sustenance, safety, health or child custody, as detcnnined by5 each.iuriscliction.

112A.ABA House of Delegates - August 2006

RtrPOR'I'

This Resolutiou is thc Logical Next Step in the AIìA's Loug History of' Sup¡rort firr'Achieviug Equal.Iusfice in the United Statcs'l'tle AIIA has long held as ¿ì core value the principle that socíety must proviclc cclual âcccss tojustice, to givc meaning to the words inscribed above the entr¿rnce to the Unitcd States SupremeCottt{ - "Equal Justice Under Law." As one of the Association's nTost distinguished formerPresidents, Justice Lewis Powell, once observed:

"Equal justice unclel law is not just a caption on the lircadc of the Suprerne Courtbuilding. lt is perhaps the most inspiring ideal of our society . . . lt is fundamental that

.ir-rstice should be the sanre, in substance and availability, withoLrt regard to economicstatus."

'l'hc ABA also has long t'ecognized that the nation's legal profession has a special obligation toadvance the rrational comnritmetlt to providc oqual justice. 'fhe Associaticln's effoús to prornotccivil legal aid and access to appointed counsel fol indigent litigants ale quintesscntialexpre ssions of these principles.

ln 1920, the Association created its lìrst standing cornmittee. "The Standing Comrnittee on l.egalAid and Indigent Def'enclants." with Charlcs Evans Hughes as its first chair. With this action, theA Iì Â nf e¿lce.l if oolf fn Êncfa¡ +1.^ ^-^^-"i^,. ^l: l-.'^l ^i'l +1..^"-h¿rrrr rLa ^^r,hrFr' 'I.L^^ i,. 1 Cìr(r¡'. rurlvr !l!L ¡-'âH.!rtùrL'!! rJr !lrócr! cl!Ll LrlrUU6lllrUl (l!V VLrL¡t¡!rJ, ! l!Vtl' !!t I 7r-r-rr

under the leadership of l-ewis Powell, the ABA House of Delegates endorsed federal lLnding oflegal services for thc poor because it was clear that charitable funding rvould never begin to meetthe need. [n the early 1970s, the ABA playecl a protninent role in the oreation of the federal l.,egalServices Corporatiort to assurne responsibility for the legal services progranr cl'eated by thefbderal Office of Economio Opportunity. Beginning in the 1980s and contirruing to the present,the ABA has been a powerful and persuasivc voicc in the fight to rnaintairr federal funding f'orcivil legal services.

These actiot-ts are consistent with ancl further several of the ABA's key goals including:

GOAf , ll To promoie meaningf'ul access to legal represcntation ancl the Amcrícan systenr of.iLrstice for all persolìs regat'dless of tlleir econonric or social condition.

When the ABA adopted this Goal, the follorving objectives for achieving it were listed:

1. Increase I'urrding ftrr legal serviçes to thepoor in civil and crinrinalcases.2. Communicate the availability of aflordable legal services and inf'<rrmation to

moderate-incomc persons.3. Proviclc effcctive leprescntatiorr for the fLrll range of legal necds of low and midclle

income persons.4. Errcouragc the dcvelopment of systems and procedures that rrake thc.iustice system

easier for all persons to undcrstand and usc.

The AIIA Has Adopled Polic.y l>ositions Fuvoring u Right to C.ounsel

Tho ABA itas on sr:veral occasions articul¿rtecl its suppolt fbrr appoiriting ct-runsel when necessaryto e¡rsure meaningfulaccess to the jLrstice systern. hl its amicus brief in Las,:¡iicr v. De.pt ol'social

2

112AABA House of Delegates - August 2006

Service,s çf'Durhun Cottnty.425 U.S. 1B (1981), the ABA ulged tlrc U.S. Suprcmc Courl-to tulc

that counsel must be appointed for incligent parents iu civil proceeclings that could tcrminatc tlicirparental riglrts, "fl]n order to rnirrimize [the risk ol'et'ror] ancl ensuLc a fair hearirlg, proceclural

cluc proccss dcmands tl'rat counsel be lnade available to pat'ents, and tliat if tlrc parents are

indigent. it be ât public cxpense. Id. at3-4. 'l'[ie A[,]A noted tltat "skilled counsel is neecled to

execute basic ¿rdv<lcacy firncticlns: to dclineate lhe issues, invcstìgate and corlcluct discot'et'y,

prcscnt factual contenlions in an orderlv mânner! cross-exanrine rvifnesses, tltake objections ancl

preserve a record for appeat. . . . Pro sc litigants cannot adequatcly pelfbnn atry of fhese tasks."

In 1979 the Hor¡se of Dclcgatcs adopted Stanclards Relating to Courrsel for Private Parties, as

part of the.luvenile Justice Stanclards.'l'he Standards state "the participation of counsel ou behalf'

of all parties subject to juvenile and f'amily court prooeectings is essential to thc adrninistration ofjustice and to the fair and accurate rosolutiotl olissucs at all stages of those proceeclings." These

standards were quoted in the Lctssiter al:ricus bricf. Afso, irr 1987, the Ilottsc of Delegates

adopted poticy ..lting for appointrnerrt of counsel in guarcliarrship/conservatorship cases.l

'fhe AIIA stated these ¡rositions some years ago, but its coutinuiug commitmcnt to the principles

behind the positions was recently restated when it charn¡rionecl the light to meaningl'ul aooess tcr

tlrc courts by thc clisabled in its amicus brief in Tennessee v. Lane,54l l.J.S. 509 (2004).'l'he case

concerned a litigant who could not plrysically access the courthouse in order to defend hirnselfì

ln telms that could also apply to ap¡rointrnentof courtsel, the brief states, "the riglrt of equalancl

cffcotive access tct the coults is a core aspect ol' constitutional guarantees and is essential to

errsuring tlre proper aclrrrirristration of'jusiice." ÂBA Aniicus Btie'i in Tenäe s.see v. í'ane at i'6.

Echoing the Association's stance in Lossiter, the brief continued "the right of access to the courts

. is fcruncled in the f)ue Plocess Clause and assurcs that no person will be denied the

opportunity to present to the judiciary allegations concerning violatitttts of f'undament¿l

consiitutionat rights . . . IW]hen iniportant intercsts arc at stakc in judicial proceedings, the Due

Process Clause requires ¡nore than a theoretical right of access to thc coutts; it requires

meaningful access. . . 'I'o ensure meaningful access, palticularly when an individua[ f.aces the

prospect of ooercive State deprivation tlrrough the judicial process of life, Iiber1y, or property,

clue process often requires the State to give a litigant afñrmative assistance so that he ntay

parlioipate in the proceedings if he eflf'ectively would be unable to palticipate otherwise." Id. aL

I7- l 8 (intcrnal citations omitted).

Dcspite 130 Ycars of Legal Aicl in the United States, Existing Resourccs I'Iavc Proven

Itradequate to Fullill the Promisc of Equal .frtsticc fbr All.

The riglrt to representation for indigents in civil proceedings goes back to the carliest clays of the

common law when indigent titigants had a right to appointment ol counsel so thcy coulcl have

âccess to the civil courts. Most [iuropean and Commonv¿ealth countries lrave hacl a riglrt tocounscl in civil cases for decades or even centuties, entitf ing all poor peoplc to legal assistance

I 5'¿e l-louse of l)elegates Resolution adopted in August, 1987 oflferecl by thc Specíal Comtnittee on Legal Ploblenrs

of thu. Eldcrly: "BE [T RESOLVED, That the American Bar Associatiorì suppolts efforts to inrprove.iudicialpracfices concerning guardianship. and adopts the fullorving l{ccotnluended Jtrdicial Plactices and ulges their

irnplementation lor the elderty at the state lcvcl: ... l. Procedure: Ensuring Duc Process Plotections .. . C.

Iìepresenttrtìonofthe Allcge<l Inconrpecont.., t.Counsel asadvocatefortheresponclentshoulcf beappointedinevely case..."

3

1124ABA House of Delegates - August 2006

when rrceded. 'f'he tJnited States, in contrast. has reliecl prirrcipally on sr.rpplying a lixed numbcr

ol'lawyels and providirÌg representation only to lrorvever nlany poor people this Iimitccl resottrce

is able to serve. As of toãuy, the lcvel of rcsil,",rce cloes not apploach Lhe level ol'neccl2 anclonly a

fortunate tèr¡¡ of'those unable to afforcl counscl etrjo¡r effs¿tive acccss to .iustice when facing

serious Iegal problerns

Fol the lÌrst 90 years of'lcgal aicl in this country, the only financial sup¡rort fòr civil legal aicl

came from plivate charity. [t started in I 876 with a single legal aid society serving Get'ntan-

American immigrants in New York City. Bar associations and social service ot'ganizations later

established legal aid progranìs in a few cities elsewhere in the country. Starting in 1920,

prornpted by the publication of lteginald Heber Smith's landmark expose of iniustice inAnrerica, Jusltcr AND'Il-tD Poon, and under the leadership of Charles Evans Hughes, the AllA,as noted abclve, sought to nurture development of such programs and managed to foster legalaidsocieties in most rnajor cities aud many smaller communities around the nation. But those

societies were grossly underfïnded and understaf'fed.

Itwasnotuntil lg65thatgovernmentfuudingfirstbecanreavailablefìrrcivil legal aidaspartoCtlre War ou Poverty. ln 1974, thc fi:cleral Legal Services Corporation was established as tlrecentral f'unding erìtity f'or legal aid progrâms nationwide. During the eaLly yeârs the lèderalgovernment expanded lcgal aid fLrnding considerably. But the cxpansion of federalapplopriations soon stalled, when LSC proved vulnerable to political attâck. Thus, local legal aicl

agencies began to rnore aggressively seek diversified fundiug from other sources includinqi-¡^..^-r. -.- I ---.-.^.-^ 'ra.----t À ^-^.---¿- /r/-\i r¡'^ \ ^¿^+^ ^-i ¡^^^¡ -^-,^,..-.^^^.-.^ -^Å --1.,^+lf lrçlç5t urt LawyEtS r tLtst- ¡\ççuur1t5 \tlJt"J trl,r, Sr¿rlç auu ruçar Buvçr¡llrlçrrLl) ¿rr¡u Pr¡vaLç )uulvvr.Despite these i¡rnovativc and often heroic efflorts, however, taking account oI inflation arrcl thegrowtlt in numbers of pool people civil legal aid funcling is no higher today in real terms than itwas a quaúer ccntury ag<-l.a

Given this pcrsistent shoúage ol' legal aicl resources, it is not surprising to fìncl a vast and

contiuuing unmet nced for the services of lawyers arîoug those unable to afïord counsel. Whilethe nationwide t,egal Services Corporatiol-fundcd system for providing legal services assists as

lnany as one million poor people with critical legal problerns cach year, a rccont survey shows

that the legal aid prograftìs within that systern havc to turrr away another million people wl,ocorne to their offÌcess. Millions more are cliscouraged ancl don't bothel seeking legal aid because

2 Sec L)ocuntcntingthc JusÍice Gap in Americtt, Á lleport oJ'the l.,egttl Service.s Oorporathn (2005) documenting the

percentage of eligible persons that LSC finclecl-prograrns ¿tre unable 10 scrve dt¡c to lack oflsufficicnt resources.

3 So,n. of these funding sourccs also have cor¡e under attack. S'ee, e.g., ßro'wn v. Lagctl þ'otnelalion o.f ll/a.shinglon,

538 LJ.S.216 (2003)l t'hillips v. Wcrshinglon Lcgul li'ou.nt{ulion,524 U.S. 156 (1998); þYíel¿utdv, Lawyers'li-rtstIìund o.[ Illinois, Dockct t¡ j-o¡-o+ tg, A¡rp. Ct, ór Itt, 5"' Jud Dist. (2003).

{ Expenclitules olpublic resources to address the legal needs of the poor irr the United Statcs oonrpare poorly withfunding in trrany other industrialized natíons. At thc lowcr cnd, Germany arrd Finland iuvest over tlrlee tilnes as

nruch of their gross dornestic product as the Uníted States in serving the civil legal needs ol' lowel' iucotnepopLrlations. At the uppcl cncl, Englarrd spends l2 tinres as nruch of its GDP as thc U.S. docs to providc civil lcgal

aid to its citizçns, In betwecn, New Zeatand spends five tinres rrole than thc [J.S and the Netlrellands over seve¡ì

tirnes as rnuch. Dven Flong Kong, now a lralt of the People's Republic oIChina, invests tnore than six [intes ns nruch

as the U.S.t

ó'ns n. l, Docutncntittg t hc,hr.srice Gap utp.5. lt also sL¡ould bc notcd thtrt rnany olthc cascs in which localprograrus reportcd thcy ¡rlovided scrviccs wero olles'rvherc limitcd rcsourccs niciìnt thcy only rvcrc able to srrpply

4


tfiey knor.v hclp is not availablc. Des¡rite all the elforts o{'legal aid programs atrcl pt'o bono

lawyers, an ABA nationi¡,icle legal neecls study in 1993 showecl that legal help rvas not obtainecl

for over l0o/o of the scrious legal problelÌts etìcountcrccl by poor people,

Morc than 1en years have passed since that AIIA resc¿u'ch, ancl maltcrs lrave orlly got[cll vvorse.

Poverly lras not signifìcalrtly abatecj ancl indeecl has increased sincc thc 2000 censtls. Similally,

the civit legal neecls of the poor rcmain substantialt¡,unfullilled. Iror exanrplc, a September 2003

report by tire District of Colurnbia Bar Iroundation estimates that lcss than t0% of the necd for

civit legal assistance is being rnet in thaljurisdictiorr. A sirnilar study in Washington State, also

r.eleasecl in Septernber 2003, founcl that 87%o of tlre state's low-income households encounter a

civit lcgal problem each year, and that only 12"/o of these households are ableto obtain assistance

flroln a lalvyer, In Massaclìusetts - a state with significant legal services resources - thc

occurrorlce of civil tegal problems arîong tlte poor incrcased signiiicantly in the period I993-

2002. By 2002 aI least 53% of the ¡:oor households in the state had al least otte u¡nmet civil legal

¡reecl anú only 13% of'those households were able to resolve all the problems they experienced.6

Both Constitutionat Prirrciples and Pubtic Policy Support A L,egally Bnforceable I{ight to

, Counsel to Actrieve Effèctive Acccss to Justicc in Many Civil Cases

ln Gideon v. þVainturight,372lJ.S.335,344 (1963) the U.S, Supretne Court lreld:

[Rleason ancl reflection require us to recognize that in ottr adversary system ofcriminal justice, ¿tny persoll haled into court, who is too poor to hire a lawyer,

cannot be assured a fair triai uniess counsei is provicieii Íbr irim. This seems to us

to be an obvious truth. . . l'hat government l'rires lawyers to prosecute atrd

defendants who have the money hire lawyers to cief'errd are thc strongcst

indications of'thc widespread belicf that [awyers in criminal courts are nccessities,

¡rot luxuries....From the very beginning, our state and national co¡rstitutions and

laws have laid great emphasis tx procedural and substantive safeguarcls designed

to assure fair trials before impartial trilrt¡nals in which every defcndant stands

equaI before the law, This noble ideal cauuot be realized if the poor tnan cltargecl

witli crirne has to face his accusers without a lawyer to assisI liinr,

It appears just as cliffìcult to argue a civit litigant oan stand "equal before the law , . . without a

lawyer to assist hím." Incleecl .iLrst a ycar after Gideon, the SLrpreme Court made a similar

observation abgut civil litigants. "Layrnen cannot be expected to knorv how to protcct their rights

when dealing with practicecl and carefully counseled adversaries..,." ßrotherhood qf R'R.

Trainment,. Virginia,377 U.S. 1,7 (1964). Yet, in 198[, thc Supreurc Court, ilr a civil lnatter,

saicl that there is no absolute riglrt to court appointed counsel for an indigent litigant in a case

brought by the state to tcrminate parental rights. Lassíter v. I)epdrtment of Srtcial Services, 425

self-help assistance, but believeci ftrll representation rvould havo lecl to a better orttcorllc for the clicnts. (ld. atp' 6,Ïrt8,)

u Scvcn additional sfates havc reccntly cxarnine<l the kinds of legaf problenrs ex¡terienced by lorv-irrcoure residents

of'fltc statc a¡td çvhat thcy do about thern: Oregon (2000), Vernront (200 l), New Jcrsey (2002)' Cortnecticut (2003),

Tennessee (200.1), tllinois (2005) an<l lv4o¡rtana (2005). These stutlies, too, dctttotr.stratc that only n very small

perccntiìgc of thc legal problenrs experienced by low-inconre lreople (typically one in fìve or less) is addressed wilh

tlre assistance <rf a private or lcgal aicl lawyet.

5


tj.S. 18 (l98l). Whilc the Court recognizecl that thc cornplcxity of a termination of parentzrl

rights proceecling rnigh( "overwhelrn an rrncolrnselecl prrrerlt," the Clourt fbLrnd--by a 5-4 vote--that the appointmcnt ol counsel rvas not requircd iu every case. Id. at 30. Instead, hial courtswere instructccl to lralancc thlec f'aotols to dctcrrnìuc whcthcr duc plocess requires that a parent

be given a lawyer': "the plivate interest at stakc, the govcrnmcnt's intercst ancl the risk that thcprocedures uscd rvill lead to crroneous decisions." Id. at27.'Ihe court r.vent on tcr apply thest¿nclarcl in such â w¿ly that it virtually cxcluded the appointmerrt of counscl exccpt in the rnost

extraordinary cír'curnstallces, in particular by overlaying on the thrce-part due proccss test an

aclditional presurnption against appointed counsel where t[Tere is no risl< ol loss of'physicalliberty.

lt is to bc hoped tliat tlie [J.S. SupLeme Court will eventually rec<lnsicler tlre cumbersome Lassiterbalancirrg test and the unleasonable ¡rresumption that rendcrs tlrat test irtclcvant l'or alrnost allcivil litigants. There woulcl he precedent for such a reversal, as seerì in the evolution of thccriminal right to counsel l'rom B¿lts v Ìlrad¡t,316 I.J.S. 455 (1942) to Gideon in i963. In lletts,the CoLrrt said the appointment o1'colrnsel was required in criminal cases only where, after acasc-by-case analysis, the trial court deterrnined that counsel is necessary to ensLrrc that trial is

not "offensive to the commotl and {undamental ideas of fairness and right," Icl. at473. But by1963, the Court rcalized that the Betts approach was unworkable, ancl ovcrturncd itin Gideott,

Powerful corrrrìon law, constitutional, aud policy arguurents supporl a governmontal obligatiorito ensrrre low income peclple are providecl thc means, including lawyers, to havc effectivc access;^ ¿1.^ ^:-,:í ^^,...¿^ 'I"Lû -rllç tÌvii Çotii.i.S. ¡ lìese AÍgUiìlents lìAve cqüôi ând SOmctìlììcs gr0âter âppiíC¿ìtiOä At tiìe SiAie

leveI than they do at the federal level.

Contmon Law AnÍecedents Suppnrt u Rí¡¡ht to Coun¡^el in Civil Mutlers

The comnron law has a long history of grariting indigent litigants a right to counsel in civil cases.

As carly as thc 13tl'ancl l4th centurles Errglish courts were appointing attorneys for such litigants,a rigtrt that Parliarncnt codifred in 1495.7 Sevcral Anrericarr colorries irrrportecl this statute arrcl itsright to counsel as part of the coll'uì'ìot1 law they adoptecl from the mothel country and, it has

been arguecl, this nascent right continucs to thc current clay.8 But at a urinimum thc venerable agcand pelsisteuce of this righte in the cornuro¡r lalv traclition suggests the fundamental importance

7 The critical language from the Statute of l{enry VIl, which also lelievecl indigent civil litigants frorn the obfigationto pay fees and costs, r'eads as fbllows: "[T]he Justices..,shall assign to the sarne lloor pclson or pelsorìs

counsel.,. .which shall give their counscl, nothíng taking fot the sarne;...and likewise the Justices shall appointattorneyandattorneysforthe samepoorpèrsonorpersorìs...." flHcnVII,c. l2(1495),ArrActtoAc{rnitSuchPersons as Are Poor to Sr¡c in Fonna Paupcris, replintcd ín 2 Statutes of the Realur 578 ( 1 993). .

8 Sec,c.g.,tlriefforAp¡rcllant, l;raset,.ßu'nhurt,379Mcl. 1000(2003)at¡rp.33-42,algLringthestatuteofl-lenryVll is palt of the E,nglish colnlnon law fhc oolony and later thc statc of Maryland adoptcd as its own alrd this right tocot¡nsel rcrmains ¡:alt of Malyland l¿¡w in the currcut day. NoL is this cor¡rnon law argurrrcnt limited to the originnl l3s(ates. Many ilnot nrost other states expressly incor¡rorated the E)nglish cornrnon law as it cxisted at the rnomenl oItheir statehood as the corìlrnon larv o[ those states. See Jollrsotr, ßeyond l>uyne: T'he Casc.for A l.egutly Iìnforccalslell.ight Lo Ile¡n'esenlation in (|ivil C.asesJbr Indigent. (iuldorniu Litigcul!-t,l I LoyoLA oF t.os ¡\rucnles L. lìEV. 249,251-259 ( l97B) for an cxplanation wliy thc'Statutc o l'Hcnry Vll thc California Suprcnre Courl uscd as fhe basis forfìndirrg a conrnìon law light to rvaivel of fees ancl costs also ¿rppcars to.justify the provision of free cou¡rsel to those

sanre incligerrt litigants.o The statutc ol'l{cnry Vll rvas not replaced until lSS3, r,vhen it was succeeclcd by a law cicsigned to rnake lhe rightrlorc ef'f'ective. In 1914 the Iìnglish Pat-liaurerrt passed anothcr lelìrlnr oi'lcgtrl aid.'l'hcn in 1950 il cnactcd a

6

112AABA House of Delegates * August 2006

that tradition. which is the basis ol'Americau law, accords guat'anteeing poor peclple cqtrality

belbre the lau, and funtishing tlienr the lawycrs rec¡uirecl to rnakc that guirrantee a reality.

Othet Eurt-ipean and conrmorl\veallh countries alscl have cornc to rccognizc a stattttory right to

couusel in civil câses. France createcl such a statutory right in 1852, ltaly did so when Car-ibaldi

unifìcci thc coutitry in 1865, and Cermany I'ollowecl suit rvlren it becante a nation in 1877. Mostolthc rernaining Ér,rnp.o,', countries.,',u.t",I rigtrtto counsel ¡rrovisions in the late lgtl'arttl eally20tl' centuly. Several Canadian provinces, New Zea[and and some Australia¡r states have

provided attorncys to the poor as a matter of statutory right f'or clecades, although the scope of the

iight l-rur cliangeà in response to legislativc firnclirrg and priorities.r0

As ol this time, no Amcricarr jLrrisdiction has euacted a statutory right to counsel at publicexpense nearly as broad as tfiese other countries. But many states ltave passed laws conferring a

right to colrnsel ir-r certain l]arrow areas of the law. '['he most cornmon are those guarzurteeing

counsel to parents - and sometirnes children -- in dependency (ol'ten called neglect) proceedings.

ancl to prospective wauds irr guardianship and similar proceeclings in rvhicli interfèrence withpersonal litrerties are at stake. A handful of'st¿les also have extended a statutory ríght to counsel

in other situations. It is encoulaging thât state legislatures have recognized the trLrth that poor

people carrnot have a fair hearir-rg in thcse particular adversarial proceedings. Yet many othcrproceedings that threaten loss ol'basic hurnan needs are equally aclvcrsarial attd ol'ten more

complex. In those câses, just like dependeucy proceedirrgs, no civil litigant can be "equal bet'ore

the law...without a lâwyer."

Courts perlraps nrore than legislatures are familial with the truth of this prirrciplc embodied in the

conìmol't law right to counsel and irnplernented, to a limited degree in many state statutes in the

U.S., ancl to a hroader extent. in the laws of many other countries. On a legular basis, thejudiciary witnesses the lrelplessness of unrcpresented parties appearing in their cottrtrootns and

the unequal contest wlren those litigants confront well-counseled opponents. .luclges cleeply

cornmitted to rcaohing .just clecisions too olten nrust worry rvhether they delivered injusticeinstead of .iustice in such cases because lvhat they heard in coult was a one-sided vcrsion of the

Iaw and facts. Near'Iy a decade ¿rgo, one trialjudge, U.S. District Court .tudgc lì.obelt Sweet, gave

voice to this concern in a speech to the Association of the Bar of New Yorl<, and also tenclered a

solution. "What thcn necds doing to help the courts rnaintain the confidence of the society and to

perform the task of insLrling that we are a just society unclct a rule of law? . . .'l'o sltorthand it,

we need a civil Gideon, that is, an expanded constitutiorral liglrt to couusel in civil matters.

Lawyers, anc{ larvyers {br al[, are csscntiàl to the I'r"rnctioning of añ effectivc justice system."l I

State rmd Fedcrul Constitutional. Princíples SupporÍ u Cívil Ri¡¡lrt to Counsel

sophistícated civil lcgal aìd progranr that ¡'enrains the most conrprehensive and genetottsly ftrndcd legal aicl systenr in

the world.

"' Tlrese cleveloprneuts in othet countl'ies arc surveyed in Johnson, T'hc Right to (lounsel in Civil Cuses; ,4tt

I nlcrnatio¡tttl l'ct'specíive, I 9 Loyola o'l'l-os Arrgeles Law I{eview 34 I ( I 985 ). Several of the tbreign statutes are

tr.anslated in Cappellctti, Cordley and Johnson, 'l'ow^RD EQUA,L, Jusl'f ce : A CoNtp¿tlt,t llvtì S't utrY oF Lt'ltì^t. AID lN

MoDËRN Soct F. ì't us (Mi I ariDobbs Fcrry: G iuff relOceana, I 975, i 9ll I ).I I Sweet, üvil " G ideon " und ./u,stice in the 'frial Cout't ("|'hi: Ilubhi 's ßcartl) . 42'l'ril.1ìticol{D 9 | 5,924 (Dec.t9e7).

1

1124,ABA House of Delegates * August 2006

Irr tlrc ycars hetween (ìideonand Lussitet'. a tbw state supremc courts took some plortrising stcps

towarcl a constitutional right to counsel in oivil oâses. 'l'lic Maine and Oregon Supt'eme Cortt'ts

clcolarcd the constitutionat right to dtre process required that thcir state governtleul.s provicle flce

cou¡rsel [o palents in clependãncy/neglectcases.'' 'fhe Ataska Supreme CoLrt't ruled that counsel

rnust be appointecl at pubtic expensc to an indi-genl party in a child custody proceccling if the

other parry- *o, prouíded l'ree representation.'3 'fl-r" California Supretne Court found a due

pro"".* riglrt to counsel for defènclants in paternity casesi4 atrd atr equal protectiorr right forprisoncrs involve<l in civit litigation.l5 The New York Court of'Appcal t'ell only.one vote short

of declaring a constitutional right to free counsel for poor people in clivot'cc cascs.'u

During that era, between Gideon ãnd Lassiler, academic articles also fÌr'equent[y appeared

cliscussing the marry legal theories which would su¡rport a constil.utional right to couusel in civiI

"ases.l? Iu cornrnon with the stale suprerne court decisions metrtioned above, these articles

tusually articulatcd errgumcnts basecl on the due process clauscs fourlcl in the feder:al atld state

constitutions and their inrplicit gualantees olaf¿rir hearing in civil proceedings. But tlrey carried

tlrc argumcnt beyoncl the narrow categories of cases covered by the then existing stafc cottft

decisions to embrace a far broacler range of civil lifigation. 'lhcy emphasized the serious

consequences losing litigants llace in urany other civil cases poor people cotnmonly experience -and the empirical and other evidenoc suggesting thc Iack of counsel vittually gttarantees these

people in f'act would lose those çases.

Some of tliese articles Iikcwise tbund strong support for a rightto oounseI in the equal protcction

ciauses comlrìon to thc iecicrai ancl most sLatc corrstiLttliotrs. Sorrre poittieci io tiie futrdai'r^rentai

interest all citizens have in enioying "like access to the cor¡rts" flor the ¡rrotection of their rigltts -as the essential handmaiden of the right to vote without which laws enacted to give thcni

substantive lights cannot be enfbrced. As a fur¡damental interest. it wall'ants the "close scrutiny"to which the courts al'e to subject any polìr:ies dcnying that access. It also was observed that

sonre states have ¡nade "poverty" a "suspect class." This again would mandate closs scrutitry of a

state's denial of counsel to poor people in judicialploceedings structured in a way that requires a

lawyer il'one is to have effective access to those courts.

Over the years after Gideon, lawyers continued to pursue litigation seeking to establish the rightto counsel in civil c¿ìses, with colrsiderable success, initially on traditional notions of due

t2 DartJorth v. Sktte l)c.pt. rf'Itcalth uttl ll1elJLrre,303 A.2<1794 (Me. 1973)', State v. Janùson,444 P.2d 1.5 (Ore.

l 968).tt l,lores v. l1'lores,598 P. 2d 893 (Ak, 1979).

'o Salasv. (lortcz,24 Cal.3d 22,593 P.2d226 cert. den.444 tJ.S,900 (1979)'

tt Prr¡,,r, t,. ,luperior ('ourt, 17 Cial..]d 90S ( 1976).

to In r¿ Smiley,369 N.Y.S.2d 87, 90 (N.Y. 1975).

" S"e, e.g., Notc, The ltight Ío ()ounsel in Civil t.itigqtiott,66 Colum.L.Rev, 1322 ( t966); O'Brien, 11/hy Not

.4ppointetl Cotutsel in ('itil Oases? 'l'he .fryiss Approuult,2S Ohio St. 1...J. 5 (1967); Note, Ihe Indigent 's tli¡¡ht to(irunsel in (..-.iyil (.la:;e,s,76YaleL.J.545 (1967)l Notc, 7|ze lrtdigent's ll¡ght ot Oottn.tel in ()ivil Cuses,43 Fordhani

t,. Rev. 9S9 (l975), Note, Iá¿ lùner¡¡ing Right rd Lcgul Assistuncefitr íhe Indigent in Cit'il I'roc:ecdings,9

U.lvlich.J.L. Rel'.554 (1976), Cornrnent, C)urrent Pr<tspcctsfor on Intligent's llight to il¡t¡.toinled Counse.l artt[ I'-rec'l't.trnscri¡tt in (.iit,il LiÍìgütian,'7 Pztc. L.l. 149 (1976), Johnson, ße1,6¿1¿ I'aync: 'l-he (ctsefor a l.e¡iully Enforccable

Itigfu to Reprcscntation.for Intligent C.ali/òrniu [,¡ligdnts, I I t,oyola of t,os An¡¡eles L..Rev. 249 (1978).

I


process. fn Mìchigan ¿rnd other states, a detailed blueprint rvas devclopecf to tal<e ¿r series olcasesthror-rgfr thc a¡lpellate courts to establish the right to counsel in varioirs ciloumstarrces. Afierseveral victolies, the initiative was setasicle in part because of the t¿1,çsl/¿r clecision,

After l¿.çsiter and its narrow construction <¡f due process, most ol the ¡rossible constitirtiona[theories reurain untestecl in eithel the fecleral or state courts. But they have bcen rr;inforccd bycclnstitutional clecisions ¿rbroad. As early as 1937, a quarter cerltury bcforc (]ideon and ovcr f-our

clecades befìlre Lus',siter, tlre Swiss Suplcnrc Corrrt fouucl the analog of'oul constitr,rtion's cqualprotectiou clause, thc "equality bel'ore the law" provision of that nation's Constitution, mandatcdappointrrrent of free counsel l'or indigcnt civil litigants.rs'l'[rerr in 1979 the European Court oftluman ttights issued a historic decision, ¿lireyt,. h'elanclte, baseil on an analog of clue process--aprovision in the European Convcutiou on Human Rights and Fundarnental Freedoms whir;hguarântees civil litigants a "f¿rir hearing."20 In a clecision that now applies to 41 nations and ovcl'400 million people, the court held indigents cannot have a "f¿rir lrearing" unless represented bylawycrs'r and rcquired rnenlberst¿rtes to provide counsel at pLrbtic expense to indigeuts in casesheard iu the rcgular civil courts." As a direct result of this decisiorr, the Irish legislature creatcdthat nation's {irst legal aicl prograln which is now funded at three times the level ol'Anrerica's.'lhe Airey decision arrd its progetìy also have influenced the scope of legal aicl legislation inscvcra I other European countries.23

Polic¡, ConsíderulÍons Supporl Rcco¡¡nilìon of u Cìt'il Right lo Cottnsel

Underlying all the corrstitutional theories are several uncleniahle truths. The American system ofjusticc is inhelcntly and porhaps inevitably advcrsariaI ancl complex. It assigns to the parties tlrcprimary and costly responsitrilities of fìnding the controlling legal principles and uncovering theretevant facts, f'ollowing corn¡rlex lules of evidence and procedure anc{ plesenting the oase in acogent fashion to fl,e judge or juLy. Discharging thcsc rcsponsibilitics ordinarily requires theexpertise lawyers spend thlee years of graduate education and morc years of training and practiceacquiring. With rare exceptions, non-lawyers lack the knowledge, specializecl expertise and skif [sto porform these tasks ancl arc dcstineclto have linritcd succcss no nlatter how valid their position

tt Judgmentof Oct.8, t937,An'etsduTribunal Federal (A'fF)63.¡,209(1937),discussedinO'Brien, lI/hyNot,4ppoinled Cotut.rel in Civil Oasc.s? '1'åc Árylss Approach,23 Ohio St. L.J. 5 (1967),

" Airey t' Irelancl,2 Eìur. Ct. l-f .R. (ser.A) 305 (1979).

tn "lnthecleternrinationofhiscivil rightsandobligations...everyoneisentitlecl toafairancl publichearingwithinareasonable time." Convention for the Protection of Hurnan Rights and Fundarnental Freecloms, Nov,4, 1950, art. 6,para. l, 2l 3 U.N.'I'.S. 222.

t' As thc court explained: "The Convention was intenclecl to guarantec rights that wcrepructlcul antle.ffecüve,particularly in res¡lcct of tlre right of access to thc courts, in view ol'its prorninenf ¡rlacc in a dcnrocraticsociety..,.-l'he possibility of apperrling in person before the [trial court] did not provide ar efJbctive right of access. .

Il]t is not realistic,...to suppose that,...the applicant could effcctively corrcluci hcl owu case, despite the assistancewhiclr,,.,the judge af'folds to parties acting ìn pelson.. .." (lcl. at ¡1, 3 t5, ernphasis supplied.) .

32 ¿1, constittrtional "fair healing" guarantec likervise formed the basis for the Canadian Su¡rlcrne Court's lecent

decla¡'ation of a right to courrsel at public expense for in<iigent litigants, in this instance parents involved indeperrclerrcy/neglectcases. lÍev, Brunsy,ìckv,/.G.1?7 D.l,.tì. (4'r') 124(1999).

" See, e.g.,,Stecl ancl AÍorris v.'l'hc. (ltúled Kingtlon, Eur.Ct.l{,R- (Juclgrncnt ollìcb. 15,2005) which loundEngland's legal aid statute clcnying counsel lo indigcnt defcncf ants in dcl'armation cases violatcd thc right to couusclrec¡Lrircd to sat.isfy the Europearr Convention's guararìtee of a "tàit hcaring.".

9

112A.ABA House of Delegates -. August 200tj

nray bc, especially if opposccl by a lawycr, Not sur¡rrisingly, studics ootlsistently show ttrat leqal

replesenttrtion ural<es a rna.ior diffcrence in wliethcr a party r,vit-rs iu cases clccided in t.he cottrts.'''

'fhere ale other problcn:s. too, wheu partics lack couusel in civil proccedings, In sceking to

insure that justice is clone in cases involving pro se Iitigants, courts must strugglc rvith issues of'

preselving judicial neutrality (where one side is represetttecl ancl the other is not), balanoing

competing demands fc¡r cor¡rt time, and achieving au outcome that is t¡tiderstood bry pro se

participants and <Jocs uot lcad to l'urlher proccedings before fìnality is rcaohed. Meantinte large

numbers of pro se litigants [ose their familics, thcir hotrsing, their Iivelihood, and Iike

fr¡nclamcntal interests, losses many of them would not have sustairicd if reprcsettted by counsel.

Furtlrermorc, the perception the courts do t-tot trcat poor people fairly has collscqucllces for the

systeln itself. As California Chief Justico Ronald George recently obselved. "[lì]very day the

administration of .iustice is thrcatened...by the et'osion of pLrblic cotrfidence caused by Iaclt ofaccess."25

Whether cast ¿rs a constitutional impclativc or fl policy fìnding compelf ing a legislative remedy,

when Iitigarlts cannot effectively navigate thc legal systetu, they are clenied access to làir and

impartial clispute resolution, the adversarial process itself breahs down and the courts cattnot

pLoperly perfbnn their rolc o{'delivering a .just rcsult. Abscrrt a systcnric response, access to the

courts w,ill contirrue to be delried to many soleiy becausc they are unable to afford counsel.

Consicleratio¡rs of cost and convenience alone cannot justify ¿r State's failure to provide

individuals with a right of rncaniugfirl access to the courts.

Curreut fùfforts to Establish a Civil lìight to Counscl

l¡or ovcr two decades, the lassi/cr decision appeared to paralyze serious considet'alion of a right

to counsel in civíl cascs. But in the last few ycars advocates around the country havc taken up the

challenge with renewcd vigor arrcl strategic thinking.zó Somc arc exploring state law common law

" See,e.g., Balbara Bczdek, Silencc iu the ()ourt: Parlici¡tation antl Sttbordinalion o{Poor T'cnanls' l/oices in lhe

Legul Process,20 tlofstra L.lìev, 533 (1992); Seron et al,T'he Impact o.[I.cgul Counsel on Outcontcs.for Poor'l'enants in Ncyv YorkOity's llousirrg(lourt: Ren.tlts of A Randonized [ìxpcrinrcnl,35 l-arv & Soc'y llev.4l9(200t).25 Chief Justice Ronald Gcorge, State of Juclicialy Speech to California Legislattrrc, 2001.

t6 This renewed interest also is reflected in the academic litcrature. Mzu'vy, Paul and Cardnct, Debra,'l Civìl Rigltl

7'o Counscl þ'or fhe Poor,32llurnan lìights 8 (Summer 2005); Boyer, Bruce, Justice , Ac<:ess lo tl'rc ()ourts, and the

Ilight to Free Oounsel lìar Incli¡¡cttt Purenls: 'l'hc Contiruing Scourget oJ'Lussiter t,. I)¿partmettl of Socittl Scrt'ices o/'

Dirham,36 [.oy. U. Chi. L.J. 363 (2005)t Nethercut, John, '?his Issttc I'tlil.l Not Ga Av'a;y...': (lontitruing to Seck thc

Right to Counsel in Civil Cases,38 Clearinghouse Revievr aB l (200a); Srnitlr, Jonathan, Civil Gitleon, I 8 MtEJournal 4:3 (2004); Perluss, f)eborah, trl/a.rhing,hn's (,lt¡nstilttiional llight to Cttunsel in Cívil Cctses: ,lccess lo

.lttstice v. lìttnclutnent¿rl lnterest.2 Seattle J. for Soc. Just.57l (200a); liliennran, I{achel, llotrsingGictcon: The

Il.ight to (.'otmsel in livic:tiort Cases, 3l FoLdtranr LJrb. L.J. 1507 (2004); Johnsott, Earl,ll:ill (.ìidcon's'li'um¡tet Sounc{

a ì\ew lvlelorllt? The Glol¡ulizutk¡n o.f Constitutionul Vulues an¿l IÍs Inrylications /br u Iìight Io Equal ,lustice in Civil(l.ase,^,2 Scattle J. for Soc. Jt¡st. 201 (2003); Johnson, EarI, Ii.quul Áccess Ío Jttstice: (lotnparing Ac(:ess lo Ju-stice in

the Ilnitedsta(es anclOther lndu.strial l)emocracie.s,24 Fordharn lnt'lL.J.83 (2000); Srveet, Ilobert,Cit'il Gkleon

ctttdConfdencc in a,l¿ts! Socie!,, l7 Yale L. & P<il'y Rev.503 (1998); Srveet, Robcrt,CivilGidectnandJuslic(t in

thc.'l't.ial Court (the Rabb|s ßcurd),52 The Record of the Ass'¡r of the Baroi-the City of'N.Y.915 (1997); Yottng,

Iìosatie. 7'he ll.ight to Ap¡tointec{ Ootutscl ln'l'ct'mincuion O|I'urental Il.ights: '['hc Slates' Response ttt l,¿ts,vitct',l4

Tot¡ro [,. Rev.247 ( I 997); Scherer, zLrrdrew, Gi¿leon's Sheltcr: 'l'he Neccl to llacognize u llight to Counsel forI¡tligent De.fenclunis in Eviction Proceetlitrgs,2S Harv. C.R.-C.L. L. I{ev, 557 (1988); Werner, F.T\¡uurdu llig,ht to

Cortrtsclfor Intligent'l'enufls iu fiviction I'roceeclinl¡s, l7 llousing 1,. I]ull. 65 (1987). Estrelle, NÍtttk, (]ideon's'l'r'rrrrtpcÍ llt¡t,i,yitcxl; Provic!ing Ilights oJ'lnttigt:nl I)cfÞndunts in l'aternity,4ction:;,29 J. F'arn. t-. I,9 (1985);

l0


rights and co¡rstituticlnal gualautees ol'open courts aud aocess to the courts as welI as due process

and equal protection, tlrrough a¡rpellate advocacy and litigaticln. Others are pursuing a range oflegislativc approaches. In each of what is alrcacly a significant number of staf es, a local broad-

basecJ lcam oÊaclvocates has determined the route they believe is nlost likely to achieve success,

Many of those aclvooates h¿rve comc togcther as the National Coalition tbr a Civil lìight to

Counsel (NCCRC). 'lhe coalition ¡:rovidcs in1'ornration-sharing, trairring, ttetworking,coordination, r'esearch assistance, and other suppol1 to advooates pursuing, or consicferingpr-rrsuing, a civil right to counscl. It includes well over a hLlncllcd advocates frclm legal servicesprograrns, plivate law 1Ìrrns, state bar associations, law schools, national strategic centers ancl

state access to justice commissions, re¡rresenting over 30 states. At prcsent. there are aciive civilright to counscl pro.iects unclcrway in at least eight jurisdictions arrd discussions âre taking place

in a number o1'others,

Courts are also now being as[<cd to revisit the issue. Iìor cxample, a nonprolÌt povcrty and civilrights prograrn ancl two nrajor private lÌrms iu Marylarrcl are actively pulsuiug recognition of thecivil right to counsel thror"rgh an appellatc stratcgy raising claims under the state's constitution as

well as the courmon law this state inrported l'rom the mother country. [u 2003, in the case ofFrase v. Barnhor\ 379 Md. 1000 (2003), they brought the question whcthel a poor persorr lras

the right to appointed counsel in a civil case beforc Maryland's highest appellate court. As partof a coordinated effort, the state lrar association atrd legal services programs filcd amicus brief'sin su¡:port of the appellant's right to counsel. The court avoicled ruling on the issue by a 4-to-3vote, iÌnciing in iavor of ihe unrepresenieci iitigant without reaching ihe issue. liui ân

impassioned 3-judgc concurrence would have cleclarecl a civil right to counsel fbr the indigentrnother who facecl a contested custody dispute without the assistance of counsel.

ln Waslrington. aclvocates frorn the private bar, legal services, the state's thlee larv schools, ancl

others have joined together to pursue judicial rccognition of the civil right to counsel uncler thestate's constitution. To date, the group has litigated two cases. One involved a local city seekingto remove a 77-year old disabled man from the home he built nearly 50 years earlier lbr allegedbuitding code violations. The other case involved an abusive husband asserling false allegationsthrouglr his attolney irr order to obtain sole custody of his children. Both cases were ultinratelyresolved in the appellate courts in ways that did not result in rulings on the right to courrsel issue.

In Wisccusin advocates have filed appeals on behalf of indigent mothers seeking to retaincustody of their chilclren fì'om their abt¡sive estranged husbands, aontcnding thc Wisconsin state

constitutiou guarautees thenr the right to counsel to defend their cusfodial rights. In Georgia, thcfederal District Court, relying in part on the Georgia state constitutiorr's clue process clausc.rccently held that fbster: children have a right to counsel in all deprivation cases (eisewherekrrown as dependerlcy cascs, at:use and neglect proceeclings , etc,).zt And, in a recently filecl testcase the Canaclian Ilar Association is seeking to cstablish a national right under their Constitutionto obtain civil legal aicl in ceftain typcs of cascs and challenging BLitish Columbia's current legalaid plan as inconsiste nt rvith requircd standards for legal aicl delivery for low-income Canadi¿rns.

Beshalov, Douglas, T',trntinalingParcntal Iì.ights: 'l'he Indigent l)ctrcnt's Iìightto(lounsel After Lassilerv. NorthOat'olitttt, l5 Farn. 1.. W. 205, 219,221 (t981 ).t'

Ke,rn.v ¡1. v. Perdue,35(> Ir. Supp. 2d 1353 (D. Ga. 2005).

il

112A"ABA House of Delegates - August 2006

In other statcs. ucw lòcus on legistative recoguition of a Light to counscl lras emergcd. In

California an effort is urrclenvay to clralit â "nlodcl" statute, with altcrnative provisions regardiug

ccrtain kc-v issucs, which crc¿ìtes ancl defines tltc scopc of a statutot'y entitletnent to cqualjustice

inclLrcling a right to counsel in approprial.e ciroutnstâttces. Iì.cccntly. the State [-ìat' tlf Texas

sought legislation provicling a oivil rigtrt to counscI for'low incotnc tetìânts in certain evicticln

appeals cascs. Irr Nc:w York this p¿lst Jut1o, tlre City Council appropríatecl $86.000 lor a stucly of'

the neecl fbr counse I in eviction procecdings ancl the costs ancl benclÌts of providing coutrscl to

tetlants tàcing eviction. In additior,, the New York State Liqua[ .lustice Commission has ruade

advocacy fol a civil Light to counsel a prominetrt ¡rart of its agenda.

The ef{brt to establish a righ t to court appointe<J counsel is a part of the struggf e to make .iustice a

mat[er of sL¡bstance over f'olm. More than 50 nrillio¡r people have inconres so lor'v that they are

eligible for legal services from Legal Services Colpora-tion-funded progrttutst* and millions more

survive on inco¡nes so low they cannot af'forcl lawyers when in serious legaljeopardy. Many also

have physical or mental disabilities or experiencc other l¡arriers to navigating the legal system

without a lawyer. Yet over the past qrrarter ccntuly the flederal goveLttnrent has reduced its

cornmitment to legal services by over 50%.

'l'here is a crisis in equal justice, as documented above, and aclvocaLes are pursuing litigation and

legislative strategies that might force a change in prevailing practices. 'flre resolutiotr voices the

ABA's support for these primarily state-larv-based approaches. While it remains important to

look for the right in fcderal clue process and equal protection law as the ultimate objective, the

resoluiion seeks io fosts¡-iiie evoiutirin ol=a civii ligirt to coi¡tisei on a state-by-state basis, t'octed

in the unique provisions of each state's cclnstitutioti and laws. This approach is likelyto achieve

significani results and provide doctrinal support for a future reconsideration of the right to c'iviI

counsel under the fecleraI constitution.

Tlre Proposccl Rcsotrrtion Offers a Carefu[, Ittcrentental Approach to Mal<irtg l]ffcctivcAccess to Justice a Mattcr of Right, Starting with ll.epresentati<¡n lry Counscl itt those

C:rtegories of Matters in lvhich Basic Human Nceds Arc at Stako.

The right proposed in this resolution is long ovcrdue ancl dccply embedded in the nation's

promise ofjustice f'crr all. But it also represents an incremental approach, Iirnited to those cases

where the mo.ct basic of lruman needs are at stake. The categolies contained in this resolution are

considercd to involve interests so firndarrcntal and critical as to require govet'uments to srrpply

lawyers Lo lorv income persons whtl otherwise cannot obtain counsel.

'fhe r:esolutìon does not suggesl that jurisclictions should lirnit thcir provision of cot¡nsel and

othcr law-rctated services to these high-priority categories. I{ather it indicates that in these

categories they should guarantee no low incomc persotl is ever cJenied a fair' liealing because oftheirl economic status. In other cirtegories of legal ma[ters, it is expectcd that each .iLrriscliction

will continuc to supply legal services on the same basis as they ltave iu the past. This includes

.iurisdictions where courts have the constitutiona[. stittutory, ot' inherent power to appoint cottnsel

in other categories o1'cases or f'or individuals rvho sL¡f'ler impairments or unique barriet's which

?3 'çCPc Annr¡al Demographic Survey, lvlarclr Sup¡rlernent,"

h¡Ip./r2r1,bdt¡=l-ce!Þqs.gQ-vll-u-4,çlQl0j!0Ollpov/rrewOl I25 0 I .þtrrt

t7

112AABA llouse of Delegates - August 2006

rnake it imltossible fbr thent to obtain a fiir hear:ing in any cascs unless they aLe reprr:sented by

Iawyers.

The right deflnec{ in this resolution locuses orl represcntation irr adve-rsarial ploceedings; it does

not propose a genelalizccl light to lcgal advice or to legal assistauce unrelatecl to litigatìon ill sttch

forulns. "Advclsarial plocccdings" as definecì in thc rescllution are intended to includc both

.judicial ¿rncl some quasi-.jucliciaI tribunals. because many olÌ thc clisputes involving the basic

huuran ncods described below are, iu one jurisdiction or anothcr', allocated to administrative

agencie"^ or tribuuals. Indcccl thc labcl is often arbitrary. Cases a forum labelcd a court woulcl

hcar iu one jurisdiction rvill be heard by a tribunal labeled an adtnittistt'ative agenoy or hcaring

ofTrcer or somcthing else in other jurisdictions. 'I'hc emphtrsis of' the riglrt articLrlated here is on

the acfversarial naturc of the proccss, rlotwhatthe tribr-rnal is called. Sonre courts as wellas some

tribunals bearing another name flunctiou iu au inquisitorial lllatrner and without legal counscl. (lnmany states, for instance, parties in the small olairns court are not allowecl to be represented by

lawyers arid jutìgcs arc cxpcc[ed to take an active role in developing the relevant facts. Sirnilarly,some states have created prtr se ploccsses through which litiganls can quiokly and effectivcly¿tccess legal riglrts and lrrotecti<¡ns without lhe need fbr represoutation by an attot'ney, f'or

example in simple uncontested divorces.)

"l'he b¿l-sic hurnan needs identified in this resolution as most cLitical fbr low income persons ancl

fhrlrilies inclucle at least t['re followirrg: shelter, sustelrance, safely, health and child custocly.

((õt t' tr a -l- J---- - -,- f^.--:1..t^ ^^^^^^ r^ ^- ^l^ill¡., ¡^ -^.*^i^ Ì- ^- ^'-¡-fmÂh+,\F. ònclL9f !ll(:lLILlcs ¿l J)cf-s()II L)t 1ältilty b ¿¡ççu;r r(, ()r ¿'ilrlilLJ t.(, rçtlt4Ul ul (ur 4lr(¡rrrrrerrL vr

honse, ancl lhe habitabitity of'that shelter.

. "sustenance" irìcludes a porson or family's soLtrces of inconre wltether dcrived from

cmployrnent, governlllcnt monetary payments or "in kind" benelìts (e.g., food stamps).

Typical legal proceedings involving this basic hutnan ncecl inclucle denials of or

terurination of' govcmrnent payments or benefits, or low-wage workers' wage or

employment disputes where counsel is not rcalistically available through market fbrces.

. "Satbty" inctudes protection frorri physical lrarrn. such as proccedings to obtain or

enforce restraining ordcrs because of alleged actual or threatcned violence whether irt the

dornestio context or otlrerwise.

. "l-fealth" inclucles access to appropriate health care for treattnent of significarlt hcalth

problenrs whether that health care is fir-rancecl by governtnent (e.g,, Medicat'e, Medicaid,

VA, etc.) ol' as ân cm¡rloyec bonefìt, through private insLtrance, or otltcrwisc.

. "Child custody" ernbraces proceedings whqle the custody of a child is dctclmined or the

terminatiou of palcntal rights is threate¡ted.r'l

The above categories are considered tcl involve intcrcsts scl l'undatleuLal and important as torctluire governments to supply lou, incorne pcrsons with effective access to jLrstice as a matter ofright.'l'helc is a strong presumption ttris rnandates provision of lawyers in all such cases,l'rivialttrreats, lìr'lvvever, evelì to a l¡asic human nced tvould not warrant such an investtlretlt of lega[

'" See gerrelally, AllA Stancl¿u'cls of Practicc f'or Lawyels Reptesettting Children in Custody Cases (2003) which

inclucles suggested críteria to decicle when counsel shoulcl bc appoitrttd for childrcn in custody cases.

t3


resources. Nor neecl cc¡unsel bc suppliecl at public expetlsc in cases whct'e a lawycr is available t<l

thc litiganr on a contingent f'ee tlasis. F'ulthenììore, itr sotlre iustatrces, there are inforn'ral

procceclings, suclt as welfbrc fair liearings, in which govet'ntnent. cxprcssly pertttits trainecl and

s¡pervisecl Lron-lawycr aclvoc¿rtcs tÒ repte sertt Lloth sides ancl rvhcte provicling such

rcprescntatio¡ is often sr-rfIÌcìent. In still other instances, jurisdictions have ledesigned a fcu'

select pr.ocecdings so they are not advels¿rrial ancl also furnish self'-lrelp assistauce sLrfficient to

permit a titigant [o have a fair hcaring without any forur of represeutation befbre thc coult. In

iLrcfi pr.ocee<]ings, the test is whether it can be honestly said the litigant catr ohtain a fàir lrearing

r,vithor-rt beiug represented by a lawyer. With rare exceptions, this lvill be tl'ue only whc:u certaiu

conclitiorrs are met: the substantive law and procedures are simple; both parties ¿ìre

unr.epreserrte<1; both ¡rarties are inclividuals ancl ncither is an institirtional party; both parties have

thc intellectual, English language, and other skills required to participate effeotivc,ly; and, the

procecclirrgs âl.e not adversarial, but rather thc judge assumes res¡tonsibility lor and takes an

active role in identifying the applicable legal standards ancl c{eveloping the facts.

This resolr-rtioll focuses the riglrt r)n "[ow incclme persot'ts," but leaves to each indivic{ual

.iurisdictio¡ the f'lexibility to detelminc who shoulcl be considered to fltl rvithin that category.'llattrer

tha¡ being bound by the current national LSC eligibility guidelines (whicli are widcly

considerecl to lrc under-irrclusive), it is anticipated jurisdictions will create their own criteria

taki¡g accou¡t of'the applicarrt's income, net assets (if any), the cost o[ living and cost of legal

servioes in the state or looality, ancl otl-rer relevant fäctots irr clefinirrg the population to which this

rirrlrf af fnchr'.s"Þ^'-'-""-"-"-Because a civil right t<l counsel is likely to evolve in different ways in difl'erent jurisdictions, and

also because state.s presently invest at very different levels, it is clifficult to estimate how much a

given jurisdiction will have to spend in adclitional public lesoulces in order to implement such a

light.tit is possibte to estimate the maximum possìble exposure at the national level. howevcr,

frorn two sout'ces - legal neec.ls studies ir, the U.S. and the experience in other countries which

have implemented a right to counsel in civil cases. Although there at'e major disparities among

states, the LJnitecl Statcs is cstirnated to provide on average less than $20 of civil legal aid per

eligible poor person. Most neecls studies conclucle the U.S. is already Ineeting roughly 20 percent

of ihe neecl. This sLlggests flre firll neeci cc¡uld be met it'thc U.S. raised the average to $100 pcr

eligibtc person. gut rhe right advocatecl in ttris resolut¡or1 is substantially narrower ar-rd thus could

be fi¡ncled for substantially less than that. This conclttsion is reirrf'orced by the experience in

E¡glarrd which has a much broacler right to counsel than proposed in this resoltltion and the mosl

gerierously f'l-¡ndecl le^gal aicl program in the world, and furthet'rnore uses a more costly dclivery

iysteur than the U.S.30 Yet it only spends in ttrc neighbo¡'hood of $100 per eligible poor person.

'ihus, it is reasonable to anticipate the uarrower right advocatecl irr this resolutiotl at tlte rvorst

wo¡lcl r.csLrLt in a triplíng of a jLrrisdiction's curretrt investment in civil legal aid - although it

might require sonrcwhat urore for statos well bclorv tlte national avc[age find someq'hat less for

thosc presontly above that average.

rú Brrglantl proyitfes partiall¡,-snSsiciizcd courrscl to those above its poverty litte. tlttt completely fi'ee civil legal aìd

is availablc f'or'the approximately 26 pelcent of the population belorv its poverty line, rvhich alnounfs to

app¡oxirnatcly t:.S mitlion ¡reople.'l'he tìrrgtislr tegal aicl program cttrlen[ly spends atrout 1.36 bìllion.dollars

piàvicling civìt legal se,'vices tt¡ those in tltis lorvest inco¡ne stratum whc¡ are entitletl to free legal services.'fhnt

arnounts to slightly rnore th¿rn $ 100 pcI cligible person iu this incorne catcgoly.

14

112AABA llouse of Delegates - August 2006

Iu any cvcnt. 1:ut iu perspcctive the iuclease woulcl be a courparatively minor lrtrclgctary item iri

ûìost states. Comparcclto lr4eclic¿iid, folcxample_, which nationerlly costs ttveL $200 billion ayear

ancl spencls n"uriy $4,200 per eligible pers,',,-r,'l rlovoting even ¿rs tnuch as $60 to $ì100 per

eligible poor pcrsotl in orclel to give them rne¿rninglul access to.ir-rstict: in thcir rnost urgent cases

appears to be a minimal and justilÌable invcstrnent, Iìuncling this right also 'uvould only brirrg the

total civìl lcgal aid investtnent to ¿rlrout 1.5 pcrcent olwhat Amcri-gan society cttrrently speuds ou

[awycrs in tliis couutry, ¿rbout t[-re same shaie as they hacl ir-r 1980.32

It is oftcn cliffìcult to obtairr clear public understanding of'the needs of the justice system. Thc

thircl branch has historically strugglecl to obtairr suffìcient resoLrrces to ftrlhlt its constitutional

rnan<Jates.33 Yet a peaceful and orclerly society depends upon the efIèctive funotioning of the

justice systern. Within the sphere of justice system fundirtg, there is a hierarchy ot' poor and

poor.er agencies. The courts are frequently under-firnded. Evetr tnorc rcsôLtrce s[alved are

systems {bL providing constitutionally-rnandated ser.uices to indigent persons accused of crimes.

Laston the list are programs supplying civil legal aic[.lmplenrentation of a civil rightto counsel

as proposeclherein is not intendecl to set up a strugglc for the crumbs of firrite resouroes [retween

c{escrving. bLrt oft-ignored oonstituencies. 'l'he result shoulcl not lre a dirnirltrtion ol'currcnt or

futule fitncls allocatcd fcrr pubtic clefense, which is an area that [ra.s al[ [oo often been

inatclequately sLrpported by states and counties, Rather, it will be nccessary for bar and judicial

leader.s to assist in eclucating the pubtic and ¡nlicy-rnakers about the clitical functions ol'these

parts ol'the justice systom, and the ¡reed for our society to guarantee true access to justice f'or alt.

Couciusion

In a speech at the l94l meeting of the American Bar Association, tJ.S. Supremc CouLt Jttstice

Wiley Rutledgo observed:

"Bquality befcrre the law ilr a truc <lemocracy is a matter of'right, It cantiot bc a matter ofcharity or of favot' or of grace or of discretion."

If Justice Rutleclge's self'-eviclent staterneut required proof, the past 130 years of legal aid history

have cle¡nonstratecf its tl'utlr. N<lt only has equality before the law remained merely a matter ofcharity i1 the United States, but that charity has proved woelully inadequate. Tlte lesson f,rom thc

past 130 years is that justice f'or the poor as a rnatter oIchar:ity or discretiolr has not delivered on

t' 2006 Statistical Abstract of the United Statcs, Table 136, r'eflcoting Mcdicaid alonc provided $213 billion in

health care to lo¡ income peoplc. (This cloes not inclucle the Medicare furlcls devoted to eldcrly poor iu adclitioil to

f¡eir Medicaid bcnefits. Nor does it include ofher: public funds usecl for health clinics and othcr spccial hcalth care

prograrns for low inconre patients. In 2003, a tot¿rl of $279 billion was spent on tlte co¡nbittation of Medicaid and

otherhealtlrcarcfolthen¿rtion'slou,incomeresidents.'l'able l22.This1ìgulcstitl dicl trotincltrdeMedicare

pa.yments f"or the elderly llot>r, howcvcr.)

r2 r\ccor.cling to t[e Statistical Abstract of the LJniterl StaLes,'l'able 1263, inclivicluals aud institutions spent $194

biltion on the services of la'uvyers in2002. $l billion woultl rctrrresentonly 1.5 pcrcentof thattotal societal

expenditure on lawycrs. This l.-f pelcent woulcl be about thc sante sharc of total legal lcsout'ces as low income

Agrericans had in FY I980. 'l'trat year the LSC budget rvas $321¡nillion rvith otlrer public and private rcsoul'ces

srrpptying several nrillion more in civil legal aicl, white the total societal itrvesttncnt in lawyeL services was $23

billion.'fhis gave civíl legal trid rougtrly 1.5 pelccni of'thc naf ion's legal t'csources in that year.

i See Furrling lhc.ltcticc S),sktnt, A tlcport by tlre Arnerican Bal Association Spocial Cornnlittee on lìtrnding thc

Jirstice Systern (Âugusf, I992),

15


the promisos of 'Justice f'or all" ancl "equal .ir-rstice under law" that form thc foundation of'Arnericit'-^ soc.ia[ contlact wilh all its citizens, whctlrcl rich, poor, or: something in lrctwcen. J'he

J'ash llorcc and other proporierìts of this resolution are convinccd it is tirne fbr this nation to

guarautee its lorv incornc peo¡rle equality befbLe the law as a matter of right, including the legalresoutces rec¡r-rired fòr such ec¡Lrality, bcginning with thosc cascs r,vhere l'¡asic human needs are at

stake. We alc likovìse cclnvinced this witl not ha¡rpen unless the h¡ench ancl bal iake a leadership

role in eclucating thc gencr:al public and policyurakers about the r:ritical itlpot'tancc of this step

an<l the impossibility of clcliveriug.iusticc rather than injustice itr many cascs unless both sìdes,

not just those who can atTord it, are t'ept'esented by lawycrs.

Res¡rcctfir I ly su brl i ttecl,

Iloward ll. Dana, Jr., Chait'Task þ'orce on Access to Civit .lustice

August 2006

l6

APPENDIX B

lû4 (Revised)

ÄMERICAN 8,,\,R ASSOCI A:['ION

SI]C'TION OF LITIGÀTIONSTANDING COMMITTEE ON LEGÄ.L ATD AND INDIGBNT DEF-ENDANTS

COMMTSSION ON IMI\{IGRÄ.TIONSPECIAL COMMITTErc ON DEATII PENALTY REPRESBNTATION

COMMISSION ON T{OMEI,ESSNBSS AND POVEIITYCOÄLITION FOR JUSTICE

.IUDICtAL DIVISTONSENIOR LAWYERS DIVISION

SECTION OF TORT TIITAL AND INSURANCE PRACTICIIST'ANDING COMMITTBE ON FEDERAL .IUDICIÀL IMPROVEMENTS

COIVIMISSTON ON INTEREST ON LAWYERS' TRUST ACCOUNTSPTIILADELPHIA BAR ASSOCIATION

SANTA CLARA COUNTY BAR ASSOCIATIONNBW YORK STATN BAR ÁSSOCIATION

KING COUNTV BAR ASSOCIATIONMASSACHUSF'.TTS BAR ASSOCIATIONFENNSYLVANIA BAR ASSOCIATION

STANDING COMMITTED ON PRO BONO AND PUBLIC SERVICECOMMISSION ON DOMESTIC VIOLBNCE

NEW YORK COUNTY LAWYERS ÄSSOCIÄTIONATLANTA BAR ASSOCIATTON

BAR ASSOCIATION OTI SAN FRANCISCOWASHINGTON STÄTE BAR ASSOCIATTON

LOS ÄNGBLBS COUNTV BAR ASSOCIATIONSBCTION OF FAMILY LAW

S BC'TI O N OII INDIVIDUA L RI,GTITS Ä.ND RBSI'ON SIBILITIIISSBCTION OF BUSTNBSS I,AW

SBCTION OF ADMINIS'T'RATIVB LAWYOUNG LÂWYERS DIVISION

COMMISSION ON YOUTH AT RISK

REPORT TO TI{E I{OUStr OF DBLEGATES

Recommendation

t RIISOLVED, T'hat thc American Bar Associafion adopts the black letter and commentary of the

2 AIIA Model Access Act, ckLtocl Arrgust20l0.

I

104 (Revised)REI'ORlf

'['his Resolution Sceks to Crcate ¿r lVlodel Act for Implerncntation of the I'olicyIJnanimously Adopted by the AIIA in 2006 in Support of a CÍr'il Right to Cotrnsel irtCcrt¿rin Cases-t

In August 2006, under the leadership of then-ABA President Michacl S. Grcco and l\4aineSupreme Judicial Court Jr-rs[ice Howard FL Dana, Jr., Chair of] the ABA Task Force on Access toCir¡il Justice, the llouse ot'Delegates unanimously adopted a landmark rcsolution calling onfecleral, state and ter¡:itorial governrnents to providc low-incomc individuals with state-fundedcounsel when basic human necds are at stake. llìlie policy adoptccl pursuant to l{ecommendationI l2A provides as follows:

"RIISOLVED, That the American Bar Association urges federal, statc, and tcnitorialgoverrïìlouts to provitle legal counsel as a rnatter of right at public axpÇnse to low incornepcrsons in those categorics of aclversarial proceeclings where basic human neecls are atstakc, such as those involving shelter, sustenânce, safety, healtlr or child custocly, as

detennined by each j r-u'isdiction."

The Report supporting adoption of 2006 Resolution I l2A set forth thc long history of the ABA'sunwavering ancl principled support fol meaningful access to lcgal rcpresentatiorr for lorv incoueindividuals, as rvell as the history of'the ABA's policy positions favoring a right to counsel.Becausc of thcir direct relevance to thc present ltccommendation and Rcport, portions of thc2006 Recornmendation and Report are quoted here:

The ABA has long helcl as a core value the principle that society must providc equalaccess to justice, to give nreaning to the words inscribed above the entlance to theUnited States Supreme Coutt - "Equal Justice Under Law." As one of theAssociatio¡r's rnost distinguishcd formcr Prcsidcnts, Justicc Lcwís Powcll, onccobserved:

'Eclual justice uncfer law is not just a caption ou the [acade of the Supremc Courtbuilding. 11 is perhaps tlre most inspiling ìdeal of oul society . . . It isfundamental that justicc should be the samo, in substance and availability,witliout regarcl to cconclmic status.'

I This Reconrnrenclation ancl Report is the product of'tlic ABA Working Croup on (;ivil Right to Ciounsel cornprisedo['rcprescntativeslì'o¡nanurubclol'AI]ASections,Colnniitteesancf otl-rerentities. AIJAl]residentCalolynl-ammrcqucstcd tltat tlrc WoLking Group identify a rneans to aclvancc tlrc causc of establishing a civil right to counscl, as

set forth in Recommendation and lìeport t t2A adopted uuanirnously by the Ilor,rse of Delcgates in,A,ugusi 2006,palticulally in ligtrt of the impacl on thc livcs oJ countless pc.r'sons throughorrt thc Uirited States ol'thc current, nlostscvcre cconolnic recession in tlccades.

1

1t4 (Revised)T'hc AIIA also has long recognizcd that thc nation's legal profession has a spccial

obligation to aclvancc the national conrlnitnlcnt to providc cqual jr-rsticc. T'hc

Association's efforts to promotc civil legal aid ancl access to appointecl counsel forindigent litigants are quiutcssential cxpressiclns of thcsc principles.

In 1920, thc Association created its first stancling committcc, "The Stancling

Committee on Legal Aid and Tndigent Dcfenclants," with Charlcs Evans Ilughes as its

first chair. With this action, thc ABA pledged itself to foster the expansion of legal

aicl thloughout the country. Then, in 1965, under thc leadership of Lcwis Powell, the

ABA Ilousc of Delegates endorsed fedelal funding of lcgal services fÌor the poorbecausc it was clear that charitable furiding would never begiu to meet the need. Inthe early 1970s, the ABA played a prominent role in thc crcation of thc fcderal LegalServices Corporation to assume responsibility l'or the legal services program created

by ttre federal Offlrce of Economic Opportunity. Beginrring in thc l9B0s and

continuing to the present, the AIIA has bcen a powcrful and persuasive voicc in the

fight to maintain fcderal funding for civil legal serviccs.

Ti¡e ABÁ IIas Áilopíaii Poiìcy Positio¡is Fa¡,oriiig a Riglet ii¡ Coi¿i¡sel

The ABA has on several occtrsions ariiculated its support for appointing counselwhen necessary to ensltrc meaningñll access to the justice systcm. Ln its amicus briefittLcts,viter v. J)epl oJ'Socìnl Services o.[Durham County,425 U.S. 18 (1981), theAIIA urged the U.S. Suprerne Court to rnle that counsel rnust be appointed for:

incligcnt ¡rarcnts in civil procecdings tllat coulcl tcrrninatc thcir parental rights, '[]norcler to rninimize [thc risk of cnor] and ensure a fail hearing, procedural due process

demancls that counsel be made available to parents, and that if the parerits are

indigcnt, it be at public expcrlsc. Id. at3-4. Thc AIIA notcd that "skillecl counscl isneeded to execute basic advocacy functions: to delineate the issues, investigate and

conduct discovery, ptesent factual contentions in au orderly lnanltor, cross-examinewitnesses, make objcctions ancl proserve a rccorcl tor appcal. . . . Pro sc litigantscannot adequately perforur auy of tltcse tasks.'

In 1979 Lhe Flouse of Delegates acloptcd Standards Relating to Counse I for PrivateParties, as part of thc Juvenile Justice Stanclards. The Standarcls state 'theparticipation of counsel on behalf of all parties subject to juvenile ancl family courtplocccdings is esseirtial to the administration of justice and to the fair ancl accuratcrcsolutiou oL isstres at all stages of'thosc proceeclings.' These stanclards were quoted

2

ewsein the la.çsl/cr anlicns brief. Also, in 1987, [he House ol Delcgates acloptcd policycalling tbr a¡rpointmcnt olcounscI itr gr"rarclianship/conservaforship c¿rses,'

The ATìA stafecl thcsc positious sorre yeals ago, but its continuing comrnitment to the

principles behincl the positions was rccently restated rvhen it charnpioned the light to

nrcaningtirl access to lhc cor"rrts by the disabled in its amícus brief in Tennessee v.

Lane., 541U,S. 509 (2004). The casc cortccrncd a litigant who coulcl not physicallyaccess the courthouse in order to clefend hirnself. In tel'ms that could also apply toappointment of counscl, tlic brìef states, 'the right off equal and effective access to tlieconrts is a corc aspcct of constitutional guarantecs and is csscntial to ensuring tïeproper adn-rinistration of justice.' ABA Atlicus Brief in Terutessee v. Lane at 16.

Eclroing the Association's stanc c in Lassiter, the bricf contìnucd 'thc right of access

to the courts . . . is lourided in the Due Process Clause and assul'es that no person willbe dcnicd the opportunity to present to the judiciary allegations concelning violationsof fttndamcntal consfitutional rights . . . [W]hen important intcrcsts arc at stake injudicial procecclings, the l)ue Process Clause requires more than a tlieoretical Light ofacccss to the courts; it requires m.eaningfitlaccess. . . To ensure meaningful access,particularly rvhen an individual f¿ces ílie prospect of coercive State deprivationthrough the juclicial process of life, [iberty, or property, duc process often requires thcState to give a lìtigant affirmative assistancc so that he may parlicipatc in theproceedings if he effectively would be unable to participate otherwisc.' Id. at 17-18(internal citati ons olni tted).

The proposeci Model Access Act fi"rühcrs the policy adopted by the I louse of Delegates in 2006and directly serves the ftrndarnental goals of the Association. Goal lV, which is to "Advance theIìule of Law," has as its fburth objective that thc ABA "[a]ssurc meaningful access to justice forall persons,"

Since 2006, Progress In Meeting the Civil Nced of l,ow-Inco¡ne Inclivicluals IIas Becn SlowWhile the Need I-Ias Increased.

Sincc adoption of Recommendation I I2A in 2006, a ntunber of statcs have taken steps toimplement a state-fundcd civil right to counsel in civil cases involving basic human needs,Perhaps the most sigrrif,rcant progress to date has becn in the Statc of Califr¡rnia which, rvithenactnrent of the Sargent Shrit,er CivÌl Coltnsel Acl, direcie<l the clevelopment of one or utorepilot projects in selected courts to "provide representation of counsel for low-incorne persons

2 ,!e¿ House o1'Delcgates Rcsolution adopte<l in August, 1987 offered by the Speoial Comnrittee on Lcgal Ploble¡ns

of the tildoly: "llli I I'tlESOLVI!D, That thc Aniericart Bat Association supports efforts to irnprove jLrdicial

¡rracticcs concerling gualcl.ianshi¡r, and arlopfs ttre following Recomnenclecì Judiciat Practiccs a.ncl urgcs tlrcirirnplenrentation t'or the elclcrly rit thc statc lcvcl: ... I. Proc,edurc: Ensrrring Duc Process Protections ... C.ìle¡rreserrtation of fhe Alleged Inconrpcf.cnt ... L CoLurscl ¿rs advocate for thc lcspontlent shoulcl bc a.ppointcd irr

cvcry ciìse... "

104 (R d)

LAA (Revised)who require lcgaI ser:vices in civil mattcrs involving housing-rel¿rted mattcrs, domestic abuse ancl

civíl harassmcnt restraining ordcrs, plobate conservatorships, guarclianships of thc Bcrson, eldcr:

abuse, <lr aclious by a parent to obtain solc icgal cir physiczrl custody oIa chi]d...."'

While other states have recognized through legislative cnacftnent or.judicial dccision a right tocounscl in limitcd circumstanccs - primarily involving tcrmination of parentaI custocly - and

otlicr pilot projects directed at specific basic needs. such as loss ofhousing, have bccn devclopedlargely with private funding in New York City and Mass¿rclusetts, by and largc the nrgent necrl

of low-incorne incf ivicluals for replesentation of counsel whcn their lights to health, safety,shelter ancl sustenance are threatened in advcrsarial proceedings, temains unmet. Indeed, the2009 upclatc by I-cgal Serviccs Corporatioti of its 2005 Rcport, Documenting the.lustice Gap inAtneric¿t: 'l'he CurrenÍ Unntet Ciyil Legal Needs of Low-Income Antericans, coufirms tlrat "therecontinucs to be a majol gap betwccn thc civil lcgal nccds of low-income peoillo ancl thc legalhelp that thcy receive."

The 2009 update lì'om LSC noted

New dctta indicctte that slafe courts, especiqll¡, those c<¡urt.s that deal wìl.h is.rues

alþcting low income people, in purÍicular lov,er slale courls and such speciali.zecl

courts as hottsing and,fantiþ, courts, arefacing signi/ìcanllv incre.asedntmbers of-¡ø,"/,.-,..-nã.^t-.1 I:..;..^,^t^ Ct",.J:^^ ^1",,.,, tI^^t t1",,,,^-t...^:^-:t-, ^î^^^,"1-,,,,1^^ ^^^.,-,,.Ltttr YIlt ç\)çntçu tIrLEu(rLJ. Ð¿uLtrvù ùttuYY tt!L'.1 ,tLÇ. ttuè¿ tttuJ.J, tI)t u,l yÉuPîÇ rf rru u.lf Pcf,!twilhout representalion are un¿thle ta alTord an attorney, and a large percenlage of thentare low-inconte pe<tple who qualify -þr legal aic{. A growing body sf y¿ssarch indtcateslh.al oulc:omes.þr' Ltnrepresentecl litigants are often lelts .þvorable than tltose.þrrepres en lecl I i ti gants.

(Italics added). Not surprisingly, as the worst rccession in dccades continues to grip the nation,millions of individuals who can least afford it have lost their principal source of income -- theiremployment. The impact is being felt in state courts as lnore and morc individr¡als withoutmeans of su¡rport or the ability to afford a lawyer appcar without conusel, ot pro.se, forproceedìngs involving essential nccds such as protectiou of shelter, protectiou fi'om physicalabuso, access to health care benefits, and deprivation ofcritical financial benefits,

The problerns for state courts c¿rused by the recession are exacerbated in at lcast two more ways.Fil'st, rnauy state arrd local governments are fäcing severe revenue shortfalls, In some instances,those states are seeking to meet their buclget challengcs in part by rcducing fuutiing to tlie vcrycourts now facccl wìth a ct'amatic incrcasc in self-represented litigants sccking to avoid loss ofshelter as well as nreans of sustenance aud safety. Seooncl, the reccssion also has severely

I Ccrtain scctions of the ¡rroposert ¿\ts4 Model Access ¡\ct are based on plovisions o1'tÍrc C,ctli/ìtrrùa ,ltatc ßasicAc<.:tt,s.ç Ac:t, which itscll'sought kr irnplerncrlt (he "r'ight to counsel and nrany of the polícy choiccs reflecied in thcrcsolrrtion passcd by thc AIIA llorrsc of Dclcgatcs in r\rrgust,200f>," as wcll as on provisions ofìthe.Szlgcrrl ShriverCivil Cotnsel ¿{ct.

4

104 (Revised)irnpactecl the availability of IOI-'|A tìlncls, a critical sourcc olreventte lot mauy lcgal serviccs

progranls, duc to thc shar:¡r cleclitre in short-lerm intercst ratcs paicl on deposits in those accouuts

Even prior to the recession, basccl on pro se statistics frour siate courts, a Septelnbcr 2006

rnernofandnm of the National Cjentet' l'or State Cotrt'ts rcportecl tltat:

Cr¡urls ûre conlinttittT, to see an int:rease in lhe n.umL¡ers o/'litigunts who represen[

thenz,selve,r. Self-representec! lítigants are nxost likely to (tppear wilhout cowtsel in

domeslic-relations rnctlters, such as divorce, custody and child suppart, small claitns,

lanc{lord/tenanl, probate, ¡sroteclive orclers, and olher civilntallers. Il¡hile nationetl

statistics on the rrumbers of self-represented liliganls eÍ'e not at,ailable, severttl sÍates

and many jurisclicl.ions lceep lrac:k of the number.r of self-re¡tresente.d litigants in Íheirt:ourls.4

(Italics adcted). Among the pre-reccssion state coult statistics set forth in tlie 2006 NCSCrnernorandtrm were thcsc :

In Utah, a 2006 report found that in divorce cases, 49 percent ol'petitioners and 81

pcrcent of responclents were self rcpresented. E,ighty peroent of self-representecl

¡reople coming to the distlict couú clerk's offrce seek additional help before^,-*:^^ r.^ rL^ ^^,,..1L^,,^^UU¡ I T ITTË LLI LIIV UL'LtT LTIULIùU.

I

o

a

A .Tanuury 2004 report in New Hampshire found that, iu the district court, one party

is pro se in 85 pelcent of all civil cascs and 97 percent of domestic abuse cases. Inthe strperiol court, one party ís pro se iri 48 perceut of all civil cascs and almost 70

percent in clomestìc relations cases.

In Californi a, a 2004 r'eport founci more than 4.3 million cottrt users are self-representecl. hr fanrily law cases, 67 percent ofpetitioners are self-represented at

thc time of hling ancf 80 porccnt are self-representcd at disposition for dissolutioncases. In urlawñll ctetainer cases, 34 perc.cnt of petitioners are sclf-rcpresetttccl at

filing and 90 percent of defbuclants are self-reprcsctúed,

Thc AIIA, working togethel with Legal Servíccs Cor¡roratiou, State Bar Associaiions and othcr

intercsted gloups, has achieved solne success in seeking increased Cougrcssioual tunding to

LSC. The increase in Congrcssional appropriations to LSC, however, rcmains far below the

anrount rcqucstecl by tlie [.SC Board to meet the neccl that existccl cven before thc reccssiou, let

alone the greater level oJ need that cxists today. The ARA Govemnrental AllaiLs Olfice reports

that:

o Maclelyr'rn llerman, Self ltcprcscntation Ilro Sc Statistics ì\,fetlorandunt, Sc¡rtcrnber'25,2006,htip://www.ncsconliuc.org/wc/publicat ions/nremosl¡rroscstatstncnto.htruliothcr.

5

104 (Revised)Iìot FY 2009, Congrcss ¡rovidcd a uruch-neederl $40 nlí[lion increase, rerisirrg I-SC'sfunding lcvel to $390 million. Yct, this is still significantly lcss than thc anlountappropriatcd in FY 1995, which would bc about $578 million adjLrsteil for inflation,and evelr further below the inflation-adjusted amount appropliated in FY 1981--$749millior. The President is requesting another $45 nrillion increasc, to $435 rnillion; thc

bipartisan LSC Board recommends $485.1 rnillion for FY 2û10 in its attempt to closo

thð justice gap over tlre next several years.t

Whcn combined with the substantial reduction in IOLTA funds availatrle to rnany legal selviccsprogrâms, financía[ rcsources avaitablc to existing legal services pr'ograms remnin woefully sliortof the lcvels nceclecl to aciequatcly selve the unmet nccd of low-incolnc individttals. Indeed, thcLSC 2009 update reports that,"l)ata coilected in the spring o/'2009 show lhat./'or evety clíentserved by an LSC-funded progrorn, one pet'son who seelcs hel¡t is turned down because ofinsfficient resoLtrce.t." Moreovcr, the referenccd clata only acldtess inclivicluals who seekassistance at LSC-fundccl entities. The update concludes, as did the original 2005 repolt, that"stale legal needs studies conductedfr^om 20A0 b 2009 generally indicate that less lhan one in

.five low-incoûte persons gel the legal assisttrnce the¡t need." (Italics acldcd),

The Morlel Access Act is Needed to Provide a Mechanism for State and'ferritorialGovcrnments to Address the Nced for Civil Representation.

With this Recommendation, the ABA again will help to move the uation forward in rneeting itscommitment to the ideal of equal jr.rstice under law by providing a moclel act that implemcntingjurisdictions may use as a starting point to tutn committnerrt into action. Thc Model Actcomplernents the ABA's support of existing LSC-fundecl an<l other Iocal legal aid programs byestablishing a statutory right to counsel in those basic areas o1'liuman need idcntificd in thc 2006Resolutior ancl by providing a mechanism for implementing that right, with Commentary thalacknowledges and identifies altematives to meet local nceds by jurisdictions consideringinrplernentation of the Model Act.

By providing a Modcl Access Act, the ABA wilt assist intercsted legislators with the nreans to

introduce the concept ancl begin discussions within their jurisclictions that will lead toirnplementatiou of a statutory right to counsel. Altirouglr buclget concerns might limit the abilityof sorne jurisclictions to implernent the Model Access Act, some states rnay choose to implementa pilot pr<rject to provicle counsel and develop actditional data on a lirnited range of cases, such as

evictions or child custody ploceediugs as set forth in thc proposed Modcl Access Act.

The Working Group has solicitccl comment from the legal servicos community and othersthroughoul the nation. Many individuals and groups generously rcspondcd with suggcstions ancl

comnrents, all of which have been carefully considcred by the'Working Group, and rnany ofwhich have bcen adopte<I in whole or in part in thc proposccl Model Acccss Act, The WoLking

6

s http:/iwwrv.abanc{.r:r'glpoladv/pliolitìcs/legal_scrvices/2009apri4-lsconepager.pdf

104 (Revised)Group benefittcd as well l'rour thoughtlul comments by four individual rncurbeLs of the legal

scrviccs conlluuity who counsel against adoption of thc propose<l Model Acccss Act out ofgcnuinc corrcct'n that it ntay bc prcrnatulc, and who suggest that furLhel'analysis and data are

nccdcd that can best be developed <ln a state-by-state trasis tathel thart fhrouglt a rtniforrn natiolral

apploaclr. A ffer careful consicleration of these commcnts, thc Working Gloup concluded that (i)in light of'e xisting data that dcmonstrate an extraordinary and groiving ntulbe¡ of low-inconrepol'sous who today face civil adversary proceedings on matters of basic humalt need, and (ii)bccause the proposed Model Access Act, togcthel with thc Conrmentat'y thcreto, explicitlycontemplatcs ancl accontrnodates rnodifrcation of its provisions to nteet the local needs antl

circunlstances of implernenting jurisclictions, it is critical to move forward at this time. Indeed,

acloption of thc proposecl Moclel Access Act uray well spur the discussion, experimcniation and

data gathering on a state-by-state basis nccded to cffectively address the vast unlnet nccd in this

aountry,

Overview of The Model Access Acf.

The Model Act is structr¡red in fivc sections. Se:ctic¡n / sets forth legistativc fintÍirtgs, Seclkm 2

provides definitions, Section 3 clefines the scope of the right to public legal serviccs, Section 4

esfablishcs a State Access Board as thc ontity that lvill admirister the program and Secti.on 5

creates a State Access Fund to provicle funding nrechanism whilc leaving to local officials thel^^:.,:^- ^- ¿l^,- ^'Ê Ê,-..-J:---(tuutsttll till tllLr strLttLç ut rLfrlurltË,

Tlre lcgislative finclings recognizc in Section l.,4fhe "substantial, ancl incrcasingly dire, need forlegal services...." Section,l.C n-rakcs the essential tÌncling thxt,"Fair and equal eccess to.fttstíceis a.funclamental rigltt in et democratic society. It is especiaily criticttl when ttn individual who i,t

unuble to afþrd legal represenlalion is at rislr ofbeirug deprived o.f'cerÍai.n ha.ric huntanneeds ...." (Itatics aclded). Moreover, as the preliminary results of a survey of state court judges

undertaken by the ABA Coalition for Justice plainly demonstrates, provi<ling a right to counselto low-incorne persons "will result in greater judioial cffìciency by avoiding repeatecl

appeararìces and delays causccl by incomplctc paperwork or unprepared litigants, will producefairer otrtcomes, and will pronote public confidence in the systerns ol'justice." Sec'tion I.F.

Inrportantly , Section 1. G makes it clear that funclìng ¡rrovicled uncler the Modcl Ãct"shall notreduce eiÍher the amounl or sources o.fJimdingJrtr exislirLg cÌvil legal se.rvices programs belowÍhe level o.ffuncling in existetrce on Íhe date that lhi.s Act is enacted," and that "[t]his,4ct shallnoÍ ,supersede the local or natiornl prir¡rities o.f le.gal services progroms i.n. existence on |he clate

that lhís ttc:l i.ç cnacled."

The tlelìnitious scf florlh jn Section 2 explain, among other things, thc scope of thc "Basic humanne<:ds" ftx'wirich thc Act is intcnclecl to provide a light to counsel. Thcse inclucle the f-tve areas

iclentilied in 2006 Rcport 1124; sheltcr, sustenance, safety, health, ancl ohilclcustocly.Delìnitions are provided for each of thosc five categorics ofìneed ancl, as it cloes throughout thc

Act^ tlre Commenlary following Scction 2 recognizcs that,'"Adopfing,jtu"isdiclions muy tuish lo

7

104 (Revised)make ntodification.ç, ba,çecl on tlrcunique cirt:um.stancc,r a¡tplir:able in Íheir c:ommunilie,s'," to tltelisi of ncccls. AIso of'note is the clefinitiou of "Limited scope representatioil," may be providcd"rsnly fo the extent permitled by Rule 1.2(c) o/'thc ABA Model Rules of [>ro.fessíonol Conc{uct ot'the jurisc{ir.:lion'.r equhtalent, and whe.nsuclt limited rept"esentafion is sulfi.cienl to afforcl thealtplicant .þir and ec¡uctl (tccess to j uslice consisient u,ith crile.ri.a set ,forth in Seclion 3 het'eof."(Italics addcd).

SecÍion 3 defines the scope of thc right to public legal serviccs aud requilcs thc applicant to rneetboth financial ctigíbility and minirnal rnerits requilements. The f,rnancial eligibility lequirementsr"rggestccl in Section 3.Ð is 125 percent of the fecleral povcrty fcvel. l{owever, thc Commcntaryat tlre end of Seclion i ttotcs tliat implementing jurisdictions may scf thc standarcl to target a

larger perccntage of thc popr.rlation unablc to afford legal selvices ancl also use a fonnula that"takes into account other f¿ctors relevant to the financial ability of the applicant to pay for lcgalscrvices." Those factors may incluclc thc applicant's asscts as well ¿rs medical ol otherextl'aordinary ongoing cxpenditures for basic neecls.

The merits lequirement tepresents an initial deterrnination, to bc rnacle by the State AccessBoard, that plaintiffs or petitioners have "a reasonable possibi[ity of achieving a successfuloutcome." Deflendants or rcspondeuls rnust be found to have a "non-fi'ivolous <lcfense." Afavorable initial melits detetmination is subjcct to further review once counsel is appointed andn-rlrt<-cs e iti,-.r¡iiiol,i i¡ir¡ecliu:ríirr. ,rf íhn. r.lli- ,rt rl..lì'rrcr. EÌnrr¡e¡¡ar r¡¡lrara a irr¡ico ha.:"irr,t nîlì¡arrv'r,'l¡¡v,vqJg!¡bg,

or arbitrator initiates a request to the State Access Boarcl that counsel be provided under theModelAct, the Board determines the financial eligibility of the applicant anclwhether the subjectmatter of ilre case involves a basic human need as clcflured therein. but there no further meritsanalysis is undertaken by the Board. It is assr¡med in such cases that lhc referring judge, hearingofftcer or arbitlator has lnadc such a cletennination.

As for the availability of "lirnited scope representatiÒn," Secti.on 3.8.Ìv spells out that suchlimited services rnay be provicled where it "is requirecf because self-help assistance alone wouldprove inadequatc or is uot ¿rvailable and whcle such limited scope representation is sufficicnt initself or in cotubination with selt--help assistance to provicle the applicant with effective acccss tojustice in the particular case in the specifrc forum," [{owcvcr, if thc forum is oue in whichrepresentation can only bc provided by licensed legal ¡rrofessionals, linritecl scope representationis only permitted under the cir:cunlstances sct forth in Sectictn 3.lJ.iii.

Section 4 provides the rnechanism frlr aclministlatior-r of the Model Act. It creates a State AccessBoarcl within the state juclicial systenr, whi[e agairr recognizing in the Courrncntary followingSecti.on 4 that a dil ferenl model may bc appropr:iate based on local ne ecls ancl resources. TheBoard's duties aro set forth in Section 4.8, and includc ensuring eligibitity of applicants,cstablishing, ccrtifying and retaining spccifìc olganizations to mako etigibility detelminatiousand scope ol service deterrniuations, and establishing a system fol' appeals o1'cletenninations ofineligibility. As detailed in tlie Commcntary, the enrphasis in providing such scrviccs is "oncffcctivc, cost-cfficicnt scrvices," r.vhich means the Board may contract with local non-prolìt

B

104 (Revised)legat aid olganizations, witlr pt'ivate attolncys, or lioth. 'fhe determi¡ration r.vill dcperid olt local

circuLnstances and rvilltake into account lirnitations on the abiiily of local legal aid organizationsto proviclc sclvicos cíthcrduc to arr cthical couflict, lcgalprohibitiorts, laclc of sufhcieltsalaricdattorucys, or whcre it lacks particr-rlal expertìse or expericnce.

Section J creates a funding mechanism, thc Statc Acccss Fund, but in rccognition of thc vet'y

different and often chaltengilrg circurnstances faccd in many diffcient alcas of tlte nation, leaves

entirely to implementing jLrr'isdictions theresponsibility to idcntify firnding sources. TheCornmcntary fbllowing Section i cautions that while implerncnting jurisclictions may look to anyavailable sor¡rce of revcnnes,it"should ta]ic care to mainlain current.financial su¡tport toexistirtg legal aid providers." (Italics adcled).

Conclusion

We returl to the eloquence of the Ileport subrnitted in suppolt of Rccommcnclation I 12,A. in2006, which continues to have grcat relevancc today in light of the economic crisis that has lcfteven lnore indlviduals with pcrsonal crises involving basic human neecls, but without the

resolrrces to retain cou¡rsel or a source of pub[icly-tindcd counsel:

In a speech at the 1941 meeting of the American Bar Association, U.S, Supremeñ^,,--¡. f. - ^t! ^ ^ \I I: l---. D..¿r^-I ^,- ^L^^-.,^1.

"Equality before the law in a true democracy is a matter of right. It can¡rotlre a rnattcl of charity or of favor or of grace or of discretion,"

If Justice Rutledge's self-eviclent statemcnt rcquirect proof, the past 130 years oflegal aid history havc demonstratecl its truth. Not only has equality before the lawremained merely a matter of charity in the Unitecl States, but that charity has

proved woefully iuadequate. The lesson from lhe past 130 years is that justice forthe poor as a mattcr of charity ol cliscretion has not delivered on the promises of'Justice for al[" ancl "equaljustice under law" that folm the f'ounclation ofAmerica's social contract with alI its citizcns, rvhether rich, poor, or sornething inbetween. The Task Force and othcr proponents of this resolution are convinced itis time lbr lhis natíon to guarantee its low incomc people cquality before fhe lawas a matter of right, including the legal resourcos rcquirccl for such equality,beginning with those cases wherc basic human neccls are at stake, We are likewiseconvinced this will not happen unless the bench and bar take a leaclership rolc ineducating tlie general pubiic and ¡rolioymakers about thc critical itnportance ofthis step and the irn¡rossibility of clelivcring justice rather than injustice in mtuiycascs unless both sicles, not jr-rst those who czur afford it, ar<: rcprcsented bylawycrs.

9

104 (Revised)The meurbers of the AUA Wort<ing Group on Civil lìigh1 to Counsel ancl the co-sponsors of this

Recomrnendation and Iìepolt strongly ul'gc the acloption of the prclposcd ABA Model Access Actin olclel to implcrncnt ilrc ABA's unanimously-adopted 2006 policy aud help to turu thc lcgai

prof'ession's commitmcnt to civil right to counsel into reality.

As it has dorre on countless occasions during the past 132 years, the ABA must agaitt provideleadership at a timc when its members and the peoplc they care about in comtnunities thror.rghout

thc nation need an efiective ancl ureanirrgful method for provicling legal leprcscntation to low-inconre persons in order to secure rights that ale basic to hurnan cxistcnce,

Respcctl'ul ly subnritted,

Loma G, Schofield, ChairScction of Litigation6

6 lvf"¡nllers of the ÄBA Workiug Group on Civil Right to Counsel (AIìA Bntitics arc intlicatc<I for

idcrrtificatiotr purposes only):

Michael S. Creco, Ctrair (Past Presiclent of the Amelican Bar Association)Telry Rrooks (Counsel, Standing Conlrnittce on Lcgal Aid ancl Indigent Defendants)Peter H. Carson (Sccti<in of l},rsiness L,aw)Shubhangi Dcoras (Consultant, Standing Cjolmnittee ou l,egal Aicl ancl tndigent Det'enclants)

Margalet Bell Drew (Conrrnission on Dornestic Violcnoe).fr¡stice E,arl Jolrnson, Jr. (Rcf .) (Standing Comn.rittce on Lcgal Aid and Incligent Dcfbndants)Witey E. Mayne, Jr. (Section of Litigation)Neil G. McBride (S(anding Clorunif tce on l.cgal Aid and Incligent Dcfendants)JoNe I Ncwman (Commission on Irntrigratiou)Robett L.. Rothman (Section of Lítigation)Judge tidr-vard Schocnbaunr (Judicial Division; Ooa[ítion for Justicc)Robelt E. Steiri (Standing Comrnittec on l.cgal Aid and Ilrcligenf l)efendants)Michelte -filton (Scction oITort Trial and Insulance Placiice)Robert A. Weeks (Standing ()onrmittcc on Lcgal Aid and Indigcrrt I)clbrrdants)f.isa C. Wood (Scction of Litigation)

t0

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AIIA Moclel Ac.cess Act

SBC'I'ION 1. I,EGISLÁ.'TTVE TIINDINGS

The Legislatrrre firrds and declares as follows

A. Thcrc is a substantial, anci incrcasingly clit'c, nced fbr civil lcgal scrviccs tbl thc poor inthis State, Due to insufficicnt funding flour alI souloes, existing plogïam resoul'css forproviciing free legal services in civil matters to indigent persons cannot r¡eet the existingncecl.

B, A recent report lì'orn Legal Sorviccs Corporation, Docutnenting the Justice Getp inAmerica, concludcs that "only a fraction of the legal problcms expcrienced by low-income individuals is aclclressed with the help of ati attorney." It also concludes that,"Nationally, on avclagç, only onc legal aicl attorney is availablc to selvc 6,415 low-income indivicluals. In comparison, thcrc is onc private attorney providing personal lcgalselices for evcry 429 individuals in the general population." The rcport further notesthat the number of unrepresentecl litigants is incleasing, particularly in family andhousing courts.

C. Fair and equal access to justice is a hrndamental right in a dcnrocratic socie ty. It isespecially critical when an inclividual who is unable to afforcl legal representation is atrisk of being dcprived of certain basic hurnan necds, as defined in Section 2.8.Therefore, meaningfi.tI access to justice nlust be available to all persons, includíng thoseof lirnited mcatìs, whcn such basic needs are at stake.

D. The legal system [of this state] is an adversarial system of justice that inevit¿bly allocatesio the parties the priruary lcsponsibility for discovering the relevant evidence, identifyingfhe lclevant legal principles, ancl prescnting the cvidcncc and the law, to a neutraldecision-r-naker, judge or jury. Discharging these responsibiti[ies generally requires theknowledge ancl skills of a licensed legal professional.

E. Many of those living in this State cannot affbrd to pay for the services of lawyers wlrenneeded for those resiclents to enjoy làir and ecluirl access to justice. In order for them toenjoy this essential right of citizens when their basic human necds arc at stakc, the Statcgovcrnment accepts its responsibility to provicle thern wíttr larvyers at public expense.

F, Provicling lcgal representation to low-income persons at public oxpense will rcsult ingreatel jr"rclicial cffrciency by avoiding repcated appearânces and delays caused byincompletc paperr,vork or unprepared litigants, will produce f-airer outcornes, and willpromote public confideuce in the systerns of justice.

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L04 (Revised)G. Iìuncling providcd pulsuaut to this Act shall not reduce either the anìount or sourccs of

lunding for cxisting civil legal serviccs plograms bclow the lcvel of funding in cxistcnce

on thc date that this Act is cnactcd. This Act shalI not supersecle the local or naiioualpriorities of legal services programs in existencc on thc ciate that this Act is cnacted.

Comrnentlry: States in which lcgal necds studics ol analyses irave beell concfucted tnayconsicler either aclding appropriate languagc in Scction t,B legar-ding such studies or rcplaoing

the current language refen'ing to the recent fecleral Legal Services Corporalion Rcport rvith a

referencc to state-spccific studies or alalyses.

SBCTION 2. I'EFINITIONS.

In this Act:

A. o'Adversarial proceedings" are proceeclings pleside<l over by a ncutral fact-frncler ittwhich thc adversarics may be reprosented by a licensecl lcgal prol'essional, as definedherein, and in which rules of eviclence or other procectural rules apply to an establishecf

formal legal framcwo¡k for the consideration of facts and application of legalrulcs toploduce an outcorne that creates, imposcs, or otherwisc ascribes legaily enforceablerights and obtigations as between the palties.

B. "Basic human necds" lìlcans shelter, sustenance, safety, health, and child custody

i. "Shelter" means a pcrson's or family's access to or ability to remain in a dwelling,and the habitability of that dwclling.

ii. "Sustcnance" mcaûs a person's or family's ability to prcscrve ancl maintain asscts,

income or financial support, whether derived from cLn¡lloyment, conrt-orderedpayments based on support obligations, governnrent assistance inclucling monetarypaymonts or "in kincl" bcncf,rts (e.g., food stamps) or from othcr sources.

iii. "Safety" mearìs a person's ability to obtain legal remedies affbrcling protoctionfrorn the threat of serious boclily injury or harm, includirrg procecclings to obtain orcnforce protcction orders because ofalleged ach¡al or tlrleatenecl violence, and othcrproceedings to addless threal.s to physical welI being.

iv. "I"Iealth" mcans âccess to hcalth care for treatment of significant health probleuts,

whether the health care at issuc would bc financed by govcmment proglams (¿.g.,

Medicare, Meclicaid, VA, etc.), fiuancecl through ¡rrivate insuranoe, provided as an

cmploycc bcnefit, or othcrwise,

v. "Child custody" mcans proccedings in rvhich: (i) the parental rights of a party are

at risk of beíng terminatcd, whethcr in a privatc action or as a rcsult of pr<lcccdings

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104 (Revised)initiated ol intervenecl in by the state 1"or thc puryoses of chilclprotective inierveution,(ii) a palent's riglit to rcsidcntial custocly of a child or the parcnt's visitation rights arc

at risk ol being terntinatcd, severe [y liniited, or subjcct to a su¡rervision rcquirement,or (iii) aparty seeks sole legal authority to make major decisions affecting the chilcl.

This definition incluclcs thc rigirt to rcprcsentation for chilclrcn only in procecdingsinitiated or intcrvcnccl in by thc statc fur the puq)oses olchild protective intervention.

C. "Full legal representatiorl" is the perforlnance by a licensed lcgal protbssional of all legalservices that uriry be involvc<l in represcnting a party in a court, an ¿rdministrativeproceeding, or in an arbitt'ation hearing, in which by law or uuil'orm practice parties maynot be rcprcsentccl by anyone othcr than licensed me.mbers of thc legal profcssion.

I), "Licensecl legal plofessional" is a merlrber of the Statc Bar ol other entity authorized bythc State to license lawyers, a law studcnt participating in a Statc authorizcd,att<lrney-superviscd clínical program tlirough an accredited law school, or a menrbcr ofthe Ilar of another jurisdiction who is legalty pennitted to appear ancl rcpresent thespecific client in thc particular ploceeding in the court or othcr forurn in which thc matlcris pending,

E, "Limited scope representation" is tire pcrformancc by a liccnscd legal professional of one^f r'ha *^.1,. i..,,^1,,^,{ i- ^..^¡r.,1¡,¡.;^,..,t^ L^f'^,-^ ¡ ¡a,r-r ^,. ^,1*:-:-r,.^+.:,,^v! or¡v r(rJAJ !llvv!Yvll ¡u ar lJ4r LJ ù urùlrLr(v t/utvÁv 4 !\rurL" orr 4urrrrrltòlr4l[t Yv

¡rroceeding, or an arbitration body, only to the extent permitted by Rule L2(c) of theABA Model Rules of Professional Conduct or the julisdiction's cquivalcrrt, arrd whenstrch limitecl rcpresentation is sufficient to affolcl the applicarrt fair and equal access tojustice consistçnt with critcria set forth in Section 3 hereof, Depending on circumstances,this form of assistarrce may or may not be coupled with self-help assistancc.

F. "Public legal services" inclucles lirll legal representation or limited scopc representation,thlough any delivery system authorized under this Act, and funded by the State AccessFuncl providcd in Section 5 hcreof.

G, The "State Aocess Boarcl" (the "Boatd") is established as a statewide body, indepcndcntof the ju<liciary, thc attorncy gencral, ancl other agencies of state gorrernment, responsiblefor aclministering tlre public legal serviccs program dcfinecl by and l undecl pursuant tothis Act.

(Jonrnrentary:

Adopting jurisclictions may wish to rnake rnoctif,rcations, lrascd on the unique circumstanccsapplicable in their commturities, to the list of "basic human needs" set forth in this section. Thelist set I'orfh in this section is considered the mostbasic of ncecls that a civil right to counselshould address; sornc julisclictions may wish to expancl úe list as appropriate to thcir situation.Tior cxamJ:lc, son-ìc jurisclíctioris ntay wish to consider expan<ling the defìnilìori of "child

3

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151

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104 (Revised)olrstody" to encornpass ¡rroceedings involving the establishmcnt of patemity ancl/or the cornplefe

clenial of visit¿rtion rights.

hl procccdings in which a pâreut who mcets the eligibility rcquirements set fbrth hcrein is

threatened with loss of child custody as <iefincd in Section 2.8.v, reprcscntation shoul<l bc

provided by ttre State as set fbrth in the Act. Recognizing that rteeds, priorities aud resources

may <liffer fi'om jurisrliction to juris<liction, implcmenting jurisdictious tray wish to consi<lcr

some c,r all of the following l]actors: (i) tlie number of private chilcl custody disputcs likcly to

rneet thesc standarcls, (ii) thc irnpact of ¡:roviding legal seruiccs in private child custocly casos olr

the ability of the state to serve other basic nceds as sct forth helein; (iii) the relative impact on

the state courts of a lack of reprcsontation in privatc child custody cases as cornparcd to othcr

basic neecls cases; and (iv) the availabitity of alfernative Furancial t'esources to pay for:

reprcsenfation fbl thc applicaní, such AS casos in rvhich the pat'ent secking to tenninate or tcr

severely limit the other parent's child custocly rights has the ability to pay for thc applicant's

replesentation. Additiona[[y, irnplementing jutisdictions are referred to the AI]A Standat'ds on

the Represcntation of Chitdren in Child Custocly Cascs (2003) for suggcsted critcria to decide

when counset should be appointed for children in custocly cases. All children subject lo

proceedings in which thc statc is involved due to allegations of child abuse or neglect should

have legal represeutatiort as long as jurisdiction continues.

r,^ f i^-1-¿ -f,¿t-^ ^--¿.--^^-):-^--.- l^-.^l ^¿. -,.-.--..¿ .^^^l ^'"J ¡l^^ l:.*:+^'.1 l:1,-1" +^ ho ovoilalrlp.IIl ll8!!! Ul lllu t:,x-llrt¡JlU!il¡ll)/ !.çYE! U! tltltf!Çr- lltrFJtl' 4l!U tllu !l!!ltLLu !LòL'!!!LL'L\ !!+-\-/!r'v rr-' L'v 4tj(r'et'tw

to support adclitionat positions lbr state-funded legal selvices or other souroes of legal

representation for the poor, to the extent thc jurisdiction permits theil usc, jurisdictions may

consiclcl authorizing paralegals, or other tay individuals who have completcd appropriate tlainingprogrânrs, to providc certain types of limitecl, carefirlly-<lefinecl legal services in adrninistrativeproceedings to persons qualifying under this Act for representation. If pelrnittecl, such scrvices

shoukl alrn'ays be proviclcd unclcr the direct supervision of a licctrsed lawyer. lvforeover, limited

scope representation should not be cousidered a substitute for full legal representatiotl when fulllegal rcprescntation is necessary to provide the litigant fair ancl equal access to justice, but rather

should be employecl only whcn consistcnt with Scction 3 below, and whcn limited scope

representation is determined to be sufficicnt to rncet that high stancfatd.

SECTION 3. RIGHT TO PUBLIC I,EGAI, STiRVICES.

A. Subject to the excepiions anrl conditions set forth below, putrlic legal services shall be

available at State expense, upon application by a financially-oligibte pel'son, ìn any

aclversarial proceeding in a statc trial or appcllate court, a state administrative procecding,

or an arbitratiolt healing, in r.vhich basic lturn¿rrl neecls as ¡Jefiltecl in Section 2.8 hercof

are a[ stake. Depending on thc circunrstanccs described in the following Sections,

appropriate public legal servicos may include fult legal tc¡rrescntation or limited scopc

representation as lrecessaly fbr llc pcrson to obtain làir and equal access to.iLrstice for the

particular clispute or problcm that pclson confronLs, inclucling, wherc necessary,

tra¡slatior-r or othcr incidcntal scrviccs cssentiaI to achicving this goal.

4

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I04 (Revised)Il. In a Statc trial or appellatc couLt, achninistraiive tritrunal, or arbit¡ation prooccding, whcre

by law or: cstablished plactice parties may bc rc¡rresented only by a licenseci legalprofèssional, public lcgal scrviccs shafl consist of fr¡[ legal representation as dcfinedherein, providcd pursuant to the following conditions ancl with the following cxceptiogs:

i. Full public legal representation sewiccs shall be availablc to a plaintiff orpetitioner if a basic human neecl as clef,rned hcrein is at stakc ancl that person has a

rcasonable possibility of achieving a successful outcome. Ful[ public legalrepresentittion serviccs shall bc availablc to a fin¿urcially eligible defendant orrespondent il a basic liuman ueed as dcfined herein is at stake, so long as theapplicant has a non-t:ivolous defçnse. Initial determinations of eligibitity for sclvicesmay be basecl on facial t'cview of the application for assistance or the pleaclirigs.I-lowevcr, the applicant shall be informed that any initiat fincling of eligibitity-issubject to a further review after a full investigation of the case [ra.s been completed.In family mattors, the person seeking a clrange in cilhcr the cle facto or de jure statusquo shall be deentcd thc plaintiff ancl the person defondíng the status quo shall bedeemed the defbndant t-or purposes of this Act, regardless of their formal proceduralstatus. I-Iowever, any older awarding temporary custody pcnding resolution on thcmerits shall not alter which party is dcemed to be the ¡rlaintifli and defendant in the

Yl.--¡L^,--^--^ i-- ^,--.- -^-- -,-:^:---ll.- : :¡! . r i 't t tç.¡ùç. r'urrr¡Ç¡iiiu¡ç, iii a¡.i)i Ças,J ur'ìBirrulíi'ì¡litìateû Dy tíìe st¿lle, Inc persons aga¡iisiwhorn the state moved shall be consideled the clcfbndants for all stages ol tlieproceedings.

ii. Eligibility for full public legal representation services in St¿te appeflate courts is ancw ancl differcnt cletet'mination after the proceedings in a trial court or other forumconcltrdc. If the financially eligible applicant is an appellant or equivalent, fi.rll tegalrcpresentalion scliccs shall be availablc when there is a reasonable probability ofsttccess on appeal uncler existing law or whcn thcre is a non-frivolous algumeni forextcnding, rnodifyiug, or revcrsing cxisting law or for establislring new law, tf thefinancially eligible applicant is a respondent or equivalent, howovcr, ftrll tegalr:epresentation services shall be avail¿rblc unless there is no rcasonable possibility theappellatc court will affinn tl,e decisiou of tlrc trial couri or other forum that thcopposirrg party is challenging in the appcllate court, In determining the likelyoutcorne of the case, thc Board shall takc into account whether the recorct wasdeveloped rvithout the benefit of counsel fot the applicant.

iii. Irrespective of the provisions of Sections 3.8.i and 3B.ii abovc, fulf public legalre¡rresentation scrvices shall not be available to an applícant in the followingcircumstances:

a. in proceeclings in any forum rvhel'e partics are not alkrwc<l to trereprescntecl by liccnsed lcgal profcssionals (howcvcr, this <loes nof prcclude

5

evlsea financially-ctigible pcrson fiom recciving full lcgal reprcscntatiort il theopposing parfy in such a tbrum appcals a decision of that forurlr that was

favolable to the applicant to a f-orunl whcrc liccnsccl lcgal profbssion¿ls are

permitted to trrrorride representation, and thrit opposing party is reprcsentedby a liccnsecl legalprof'essional in that appeal);

b. if legal roprescntation is otherwisc bcìng provided to the applicantir: thc particular case, such as through existing civil lcgal aid programs, thcscrvices of a lawyer who provides such representation otl a contingont feebasis, as the result of the plovisions of an insurance policy, as part of a classaction that will reasonably servc tlre legal intercsts of thc applicant ancl thathe or she is able to join, or il'the applicant's intclests are being protccted bycounsel in some tither way;

c. if the matter is not contesteci, unless the Board determines thciutelests ofjustice require the assistance olcounsel;

d. if under standards established try thc Iìoard, and uuder thccircumstarrces of the particular mattcr, the Roard deems a certain fypc andlevcl ol limited scope representation is sufficicnt to afford fair and equalaûccs-q íii irsiir:t: zrrrrJ is sulficieni io cnsuLc that iire irasic ílunrel: noc<ls aistake in the proceeding are not jeopardized due to the absence of lirllrcpresentation by cotmsel (however, limitecl scopc represcntation shall beprcsumed to be insuffrcient when the opposiug par-ty has fullrepresentation);

e. for rnatters in clcsignated courts or other forums when the Boar.detaluates and certifies, after public hearings an<J in compliance rvith theState's lstatutory code govelning adrninistrative ¡rrocedures], that:

the designated court or tbrurn: (l) operates in such a manner thaf.the judgc or other disputc resolver plays an activc rolc inidentifyilrg the applicable lcgal principles and in dcveloping therelevant facts rather than dependirrg primarily on the ¡rarties toperform these essential functions; (2) follows relaxed rules ofevidence; and (3) follows ploceclural rules and adjudicatcs legalisst¡es so simple that non-lawyers carì represenl themsolves beforethe court or other fr:lum and stíll errjoy fair aud equal access tojustice; and

Z. within such designated cou.rt or forum, thc, specif,rc matter satisfiesthe following crlteria: (1) the opposing party is not represcntcd bya licensecl legal profcssional; (2) tlie particular applicant possesscs

6

104 (R d)2162112182t9220221

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2372382392402412422432442452462412482492502512522532542552562s7258

104 (Revrsed)251)

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28028128228328428528628728828929029r292293294295296297298299300

thc intclligcnce, knowlcclge, languagc skills (or appropriate

language assístiutcc), anci otlter attribntcs or:clinarily requirecl to

replcsenl oneself an<l still enjoy fair anci eqttal accÈss to justicc;

ancl (3) il self-help assist¿rnce is necded by this party to enjoy fairand equal access to justice, such sclf-help assistance is made

available.

iv. Lirnited scope reprcscntation as clclined herein shall bc available to f rnanciallyeligible inclividuals where thc limitçd sorvioe provided is reclLLited because self-helpassistancc alone would prove inaclequate or is not available and çvhere such limitcdscope lcpresentation is sufficient in itself or in combination rvith self-help assìstance

to provide the applicant with effiective access to justice in the particular case in the

specifîc l'orunr. In matters before those courts or othel J'ot'ums in whichrepreserrtatiorl can be provicled only by licensed legal professionals, howevet, limitcdscope representation can only be substitnted for full representation when permitted byScction 3.B.iií abovc.

C. In addition, any state trial or appellatc court judge, any state administLative judge orhearing officer, or any arbitrator may notify the [loard in wliting that, in his or heropinion, public legal represcutation is nccessaqy to ensurc a fair hearing to an

^-! t:L:^^--¿:-^ ^ ^^^^ L^1:^.,--J ¿^:--.^l-.-, ^ l^^^:^ L,-*^,. -^^,J ^^ l^C-,-l:.^UtlLçljrt;òtr.tlLçLÌ !lLtB¿1flt ll!. ¿l UASç UçltçvËj(! trJ lIlVu!VV 11 Ud.ùrU lrtll.rt(lll !lççtl ¿!ù ilçllltçu tll

Section 2,8. Upon receiving such notice, the Board shall timely deterrnine both thefinancial eligibilify of the litigant and whethel thc subjcct matter of the case incleetl

involves a basic human need. If those two criteria are satisfied, the Boald shall providecounsel as rcquired by this Act,

D. In order to cnsure that the scarce funds available for the program arc usecl to serve thernost critical cases and the partios least able to acces$ the courts without representation,eligibility for representation shall be limited to clients who are un¿rble to afforcl adcquatclegal assistance as defined by the Boarcl, inclucling thosc whose household incorne falls ator below [ 25 percent] of the ibdcral povelty level.

E. Nothing in this Act should bc read to abrogate any statutory or constitutional rights in lhisstate that arc at least as protectivc as the rights providccl under this Act.

Commentary: With rcgarcl to Scction 3.ll.ii, in determining whether there is "a reasonableprobability of success on appeal" for appellants or cquivalcnts, or "no reasonable possibility the

a¡rpellate court will affimr the clecision of the trial ooufi or other forum" lìor responclents orcqnivalents, the Roard or its designee shall give considerafion to existing law or thc existence ofa uon-lrivolous argument for extending, modifying, or reversiug existing law or for establishingnerv law.

7

104 (Revised)3013023033043053063073083093103113123133t43ls3r63r73183193201.)1-lL t

322323324325326327328329330331

332333334335336-tJ I

338339340341342343

In Scction 3.C, thc lvfoclel Act cloes not authorize the Iloarrl to apply a rneril;s test or any other

limìtation, other than lìnanci¿ll and subjcct urattcl cligibílity, upon rcccipt of notice from a triaijtrdge (or othcr typc of tact-findcr nnrnccl therein) fhat an unrepl'esented litigant rcqtiircs publiclcgal rcprescntation, The tationale fror this clistinction is that, while it may be appropriate for the

Roard to teview criteria relating to aleas rcquiling clctailcd knowlcclgc of the Modcl Act and anyregulations that rnay have been promulgatcct (e,g., financial and subjcct rnatter eligibility), it isunsecurly f'or the lJoard to sccond-gucss thc.judge on thc issuo of whothcr a litigant's positionhas suffrcient merit.

The 125 percent incolne cap in Scction 3.D suggests tire minimnrn ecouomic stl'ata the lr4odel

Act sceks to target. Implementing jurisdictions may consiclel alternative financial ctigibilitystandards that talget a larger perccntage ofthc population unable to afford legal services in cases

of basic neccls, such as I 50 percent of the federal poverty leve[, or a formula thaf also takes intoaccolult other factols relevant to the f,rnancial ability of tho applicant to pay for legal sertices.For exam¡:le, the tlctcrmination of a particular applicant's financial eligibility ordinalily shouldtake account of the applicant's assets aurl medical or other extraorclirrary ongoing expendituresfìcr basic nceds. Somc of those factors, such as substantial nct assets, might make a person

ineligitrle despite a current incomc that is below 125 percent of tlie federal poverty level. Otherfactors rnight justify provicling a pcrson with legal services as a nratter of right, cven thoughgloss income excceds 125 percent of the federal poverty level,

The Model Act assumes that services wilI be provided only in the contcxt of adversarialproceedings. Many legal matlers irnpacting thc poor may be resolved without adversarialproceedings (e.g. transactional mattcrs, issucs rclating to applications for bencfits), and advice ofcounsel rnay be irnportant to a fhir rcsolution ol'such matters. While tliis Model Act does notadclrcss scrvices in non-adversal'ial settings, adopting jurisdictions ulay wish to consider whetherscrviccs in such settings would provide a useful preventive approacir and rnight oollserveresourccs that otherwise wouldneed to lre expended in the coulse of supporting adversarialproceedings. If so, such an adopting juriscliction may wish to adjust the Model Act to providesorne services outsiclc of attversarial settings.

SBC'rION 4. STATE ACCESS BOARD.

A. Thcrc is established within thç State juclicial systcrn an indcpendenI State Access Board("Boarcl") that shall have responsibility for policy-nraking and overall administration ofthe program dcfinccl in tbis Aot, consistent with the provisious of this Act.

B. The Iloard shall consist of _ fan odcl numbel ol] rnernbcrs appointed by fsuchrcpresentatives of the diffelent brauches of government ancl/ol' bar associations to be set

forth hercin]. A majority of tlrc rncmbcrs shall be pcrsorìs licensed to practice law in the

.jurisdiction. The members should reflect the broadest possiblc diversity, taking intoaccourrt the eligible clicnt populati<ln, the larvyer population, and the population of thestate gencrally.

8

34434534634734834935035135235335435535635135835936036r3623631643653663673683693703713723733743753763773783793803tì I382383384

It4 (Revised)I-loarcl members sball bc compensatecl at the ratc of t$__ a clay] fbr thcil preparation ancl

attcudancc at Board mcetings and Boarcl conunittce rncctings, ancl shall be leilnbursed íor¿rll rc¿rsonable cxpenses incurrcd ¿rttendant to <fischalging thcir rcsponsibilities as IJoardmembers.

C, The Bo¿rrd shall sclect an Exccutive Director who shall scrvc al the pleasurc of thc Board,and who shall be responsible ['or iurplctnentirg the policies and procedures determined bythe Boarcl, including recornrncnclations as to staf f and salarics, except for his or hel ownsalary, which shall be detcrmined by thc Boarcl.

D. The Boald is etnpowered to promulgate regulations and polioies consistent with thepr'ovisions ol' thc Act and in aocordance with the Statc's [staLuiory code governingadrninistrative procedures].

E. The Board shall

i. Ensure that all eligiblc pcrsons receivc appropriate public legal serviceswhen needed in mattcrs in which basic human needs as defined in Section 2.8hereof are at stake. It is the purpose aud intent of this Section that thc Boardrrioñâ¡y^ +1.o.- .^'."i^-. :- ^ itr ^r ':^ ^l:¡:^^r:.'^ ^-'1 ,.^-t ^Í:îi^:^^t ^-J rt.^ir::+r¡(ró! i:¡çùL Jwt v ¡w!ù ¡¡l a ¡¡l(¡¡¡¡¡!i l¡¡(ll ¡i LliçLLiVU 4i¡U LUli_çiiivlçiii, ¿iliLl iilêi

ensures recipients fair and equal access to justice.

ii. Establish, certify, and rctain specific organizations to rnake eligibilitydetcrrnin¿tions (including both financial eligibility and the appticable standarddefrned in Section 3.8 hereof) and scope of service determinations pursuant toSection 3 hereof.

iii. Establish and adrninister a system that timely considers and decidesappeals by applicants found íncligiblc for legal re¡rresentation at public expense,or frorn decisions to provide only lirnited scope representation.

iv. Administer the State Access Fund cstablishecl and clcfined in Section 5,r.vhich provides thc frurdiug for all public legal service repleserrtation neeclsrequirccl by this Act.

v. Infonn the gcncral pr"rblic, especially population grouirs and geographicarcas with large nurnbers ol frnancially elìgible pcrsons, about their legal rightsand rcsponsit¡ilities. anci thc availtrbility of public lcgal reprcsentation, should theycxperícnce a problcm involving a basic truman neecl.

9

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104 (Revised)vi. Establish and aclministcr a systcm of cvaluation of the cluality o1

rcplcscutation delivcred by ttie institr-¡tional ¡rrovidcls and privatc attot'neys

rece iviug funding for representation through the Statc Acccss Fund.

vii. Il leliable, rclevant data is not othelwise availablc, cttllduct, or contraotwith others to conduct, studies which assess, ¿rulorlg other things, the need and

clcman<i l'orpublic legal scrviccs, the suffìcicncy of different lcvels of public legalservices to provide fair and cqual access to justicc in various circunrstances, the

effectiveness of those services in positively impacting people's lives and legalsifuations, the quality ancl cost-effcctiveness of different providers of public legalsclviccs, arrd c¡ther relevant issucs.

viii. Prepare ancl subrnit an annual report to the Governor, the Legislature, andthe Judiciary on the extent of its activitícs, including any data utilized orgenerated relaiirrg 1o its duties and both cluantiteitive aud clualitative data about thecosts, cluantity, quality, and othcr rclevant performance rncasules legarcling publiclegal services proviclccl cluring thc ycar. Thc Board also may makcrscomnreuclations for changes irr the Model Access Act aud other State statutes,court rules, ol other policies tliat would inrprove the quality or reducc the cost ofpublic legal services t¡ncler the Modcl Aoccss Act.

Cotnntetrtary: While the size and composition of the Boarcl are matters to bc determined l¡asedon local circumstances and need, it is suggestc<l that an appropriate numbcr of mcmbcrs toconsiclel is seveu, with appointrnents being rnacie by the Govemor, the Chief Justicc of the stateSupreme Court, and cither a reprcsentative of thc state Legislature or Plesidcnt of a state ormctropolitan bar association. Appointments should be allocatecl to cnsure that a majority ofmcmbcrs are lawyers, For example, on a seven-pcrsoll board, the Governor, Chief Justice,Legislative representative aud Bar Fresident oould each a¡rpoint one lawyer and the governmentreprescntatives could have a sec<lncl appointment that could be a non-lawyer. It is suggestccl thatterms be for thrce years, with onc rencwal possible, ancl that tenns be staggered.

Broad diversity on the Roard is of critical inrpoltance, particularty in Iight of thc cligiblc clicntpopulation. Other cliversity factors may be taken into account as well. For cxample, it maymake scnse in a particular state to have business and civic leadcrs on the Board as well as

persotls representing thc eligible population or others.

Also, as an a[ternative to creating an indepenclent aclministrative bocly within the judicial system,a St¿rte may consider providing fbr adrninistration of tlie program by an entirely independentcntity, by the state bar association, the state court systenr, or the executive branch. Notably, mostnations rvith advanced legal aicl prograrns - inclucling the United States - have chosen to establislisome form of independent or semi-independcnt body to aclminister their public legal aid systoms.Snlaller states, however, may find it too cumbersomc or cxpensivc to sct up a frcc-stanclingindepcnctent body to administcl their public legal aid systcrì1.

r0

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I04 (Revised)1'hc crir¡rhasis irr Scction 4.U,i is on effcclive, cost-cfficicnt scrvices that provide thc applicantr.vith &rir ancl cqual acce:ss [o justice. ilow th¿rt is accomplishecl nrzry vary from statc tt¡ statcdepencling on the l'esources available in the community. TlTus, tlie Board uray choose to colltractwith local non-profit legat aid organizations or with privatc attorncys, ol both, as it decmsappropriate, to proviclc thc services authorized uudcr the Model Access Act, If the Board choosesto corltracf with a local nou-profit legal aid olganization, it noncthcless lnay choose to contract as

wcll with private attorncys under circumstances it deems appropriate, such as lvhcn non-profitlegal aitl olganizations arc unable to provide re¡rresentation to an eligible client becar¡se of anethicaI conflict, legal prohibition or because therc are not enough salaLied aiiorneys properly torcprcsent the number of clients requiring reprcsentation in a given court ol gcographic arca at thctirne lepresentation is rcquirecl, or in cases when, bccause of special expertise or experiencc, orother exceptional factors, a pl'ivate attorney can provicle reprcscntation that better selves thegoals of effcctiveness, cost-efficicncy, and fair and eclual acccss to justice.

Assuming it is lawful to do so under thc law of tlie enacting Statc, Section 4.E.ii may includeauthority for the Boarcl to cielegate eligibility and scope of public legal serviccs dcterminatious tolocal legal aid organizations, such as legal services organizations funded by the federal LegalServiccs Corporatiou, those fi.rndcd under the State IOLTA program, aud any self-hclp centersthc Statc court systcm ccrtiflres as qualificcl, all of which would automatically be considered^^'.t.iiì^.i rn '.a¡Êa¡n¡ iÌ.^.^ iì...^ri^-^ Í*vL¡r rrrlvu ç\, pw¡¡urrrr Liiurü rLii.ruLiu¡.rs. j.iì ASSeSSlng eltgtbtltty, tht OfgAnlzattOn malctllg thedetermination shoulcl be autlrorized to evaluate both the applioant's linancial eligibility andwhether the applicablc staudard defined in Section 3.8 is satisfied,

SECTION 5. STATB ACCBSS FUND.

A. Thc State Access Fund supplies all the firnancial support necdccf for the scrviccsguarantecd by the provisions of tlìis Act as well as the costs of achninistering the programestablislied under this Act,

Il. In coniunction with pleparation of the state judicial budget, the Roard shall subniit anestimate of ariticipatecl costs and revenues for the forthcoming fiscalyear and a requestlor an appropriation adequate to providc sufficient rcvcnrrcs to rnatch the cstimatecl costs.Annually thereafter, the lloard slrall provide the Governor, the Lcgislaturc, and theJucliciary with a status report of revenues and expenditures during theprioryear, Withinthrce months allcr the cnd of the state's fiscal year thc Board shall submif to theGoveruor, tlrc Legislaturc, and the Judiciary a rcqucst for the funds requirecl from general

revonucs to make up the difli:rer-rce, if any, between revenues rcceivcd and appropriateclpursuant to the initial butiget cstimatc and the obligations incurred in ordcr to support thcright defrnecl in this [aw.

Commentary: Bec¿ruse of varying finanoial conditions in iniplementing jurisclictions, noattempt is rn¿rde in this Section to identily ¡lossible revcuue sources. hnplcmenting jurisclictions

1t

104 (Revised)47t412413474

rnay consi(ler using any availabfe sourcc of rcvenucs, but sirall cllsuro that currcnt financiaisupport to existing Icgal aid proviclcrs is not rcduccd, as sct tbrtli in Scction 1 G, of this MoclclAcccss Act.

l2

APPENDIX C

105 (Revised)

AMI1TìICAN T}AR ASSOCIA'IION

STANDING COMIVTITTEII ON LEGAL ¿IID ANÐ INDTGENT'DIITìIìNDANI]SSBCTION OF T,ITIGA.TION

COMIVTISSION ON. I MMIGR ATIONSIÌECIAL COMMITTEE ON DEATI{ PENAL]IY REI'IIESI1NTATION

COMMISSION ON trtrOI\'TELESSNBSS AND I'OVERTYCOALITION FOR JUSTICB

JUDICIAL DIVISIONSENIOII. L/t IVYERS DIVISION

SECTION OF TORT TIIIAL AND INSURANCD PR/i.CTICESTANDING COMMITTEE ON FEDER¡\L JUDICTAL INÍPROVEMBNTS

COMMISSION ON INTERES]] ON LAWYERS'TRUST ACCOUNTSPIIÍ I,ADELPHTA BAR ASSOCIAT]ION

SANTA CLARA COUNTY I}AR ASSOCIATIONNEW YORK STATE BAR ASSOCIATION

NBW YORK COUNTY LAWYERS ASSOCIA'TIONKTNG COUI.{TY BAR ASSOCTATION

MASSACHU SICTTS BAIì ASSOCIATIONPIINNSYLVANIA BAR ASSOCIATTON

STANDING COMMITTEE ON PI{O BONO AND PUI}LIC SERVICECOMMISSION ON DOMESTIC VIOLENCE

ATLANTA BAR ASSO CIATIONNAiI'IONAL LEGÄL AID AND DEFENDEII. ASSOCIATION

BAR ASSOCIATION OF SAN FIIANCISCOWASHINGTON ST,ÀTB BAR ÄSSOCIATION

LOS ANGITLBS COUNTY BAR ASSOCIATIONSECTION OF FAMILY LAW

SECTION OF INDIVIDUAL IìIGIITS AND RESPONSIBILITTESSBCTION OF BI.ISINESS LAW

SBCTION OF ADMINISTIIATIVB LAWYOUNG I,AWYIìRS DIVTSION

COMMISSION ON YOUTII AT RISK

IìBPORT TO TT{E HOUStr OF DIILEGÁ,TBS

Recommendatio¡r

I IìESOÍ ,VIiD, That the Anrerican Rar Association adopts the black letter and cotnmentary ABA2 llasic l,rinciples of a Right to Counsel ín Civil Legal Proceetlings, datcd August 2010.

I

105 (Revised)RTIPOIìT

Introduction: lfhc ABA's llolicy on Civil llight to CounselI1 August 2006. the l{ousc of Delegates of thc Artrerican [Jar Association (AI]r\) look a

historic ste¡r towald achicving Ílrc Associatiou's objective to "[alssltrc rncarriugfttl acccss to

justice for all persous" by aclopting a resolution r"rrgirrg "f'ederal, state, and terr:itorial

govcrnmcnts to providc lcgal counsel as a uratlcl'of right at public expense to low-income

persons in those categories of adversarial proceedings whcrc lrasic humari needs arc at stakc,

such as those involving shcltcr, sustonauce, safbty, health or child custody, as determined by

each.juriscliction."r This action marked the first tinle the ABA officially recognizc<l a

governmcntal obtigation to lund arid supply effeclive legal l:eprcsentatiou to all poor porsons

involvccl iu the type of high stakes proceedings rvithin the civil justice system that place thcr"Lr at

ûsk of losing tlieir lromes, custody of their children, protection from actttal ol threatened

violence, access to basic heatth care, their solc source of financial support, or othcr fiurdamental

necessities of life. The AtsA resolution carìle on the hecls of a growittg consenstls, following a

decacles-long, widc-ranging clÏort by a cledicated cadre of ABA mcmbers and other national

advocates, that the time was ripe to bring to liglit the critic¿l need for a civil right io counscl in

this country.

Iìliohf fn Cnrrnsa! It.ffnrfs +nrì Develanments Follorvino últe A-BA-'-s AcfÍon in 2006_--et -_-- _

In ttre few short yeals since thc ABA adopted its rcsolution, there has been significant

interest and activity on the part of the courts, legislahrres, local policymakers, bar associettiotts,

and others to examine civìl right to counscl issucs and establish a right as well as systems forimplenrcntation. Notable examples of such eftbrts that have occurrecl acl'oss the nation-someof which have achievecl a measure of succesc-are discussed in nrore dctail below:

Altrsku: On Septcmber I l, 2008, the Alaska Bar Association's Boalcl of Govornors adoptcd

a resolution sporrsored by the association's Pro Bolro Committce that directly tracks the

languagc of the ABA's civil right to counscl resolntion adopted in 2006. Specifìcally, ihe

Alaska resolution "urges the State of Alaska to provide le gal counscl as a matter ol'riglrt to

low income persolls in those categories of aciversarial ploceedings where lrasic humall uceds

are at stakc, such as those involving shelter, sustenaltcc, safety, healÍ.h or child custody."Following the resolution's adoption, the bar association formccl an irnplementation

committ"ee to e,rplolc and defrne the rnethod by which the Roard of Govcmors will pursue

the goals of the resolution. In addition, the ABA filed an amicus brie f in Novcmber 2008 in

a civit right to counscl case before the Alaska Supreme CourL (Office of Ptthlic Advocttcy v.

Alask:a CourÍ System, R¿udctll Guy Gorclanier, et a/.). Ttic casc ínvolved an appealby state

a

I $'ec Anrorica¡ Bar Association, Mission anrì Coals, Goal lV, Olrjective 4 (August 2008), availabte at

[r!rj !]Y]ü.!ÞI!l]çt*ug¡rÞrugsaor\.1ì[nl]; AMERTC^N B^R Asso(ìtÀ1'loN, RECOMMENDÁ1'loN I t2A (Aug. 7, 2006),

at,ailable¿rl¡11.p:,',1.!)y-W-jib:rrrç],grglog¡tl-.1çl!-Lç-ç-qSçbid&jçv'¡lpalis¡064 1!!!¡¡!1..

a

105 (Revised)ageucies ol a lower court ruling reclLriring appointtrent of cottusel for an indigent parcnt in zr

custody matter unclcr both the eclual plotcction ancl due process cl¿ruscs of the state

cons[itution, Or'¿ll argumenI in ihis case toolc placc on May 21, 2009. One week latel, ilirosponsc to a perceived lack of argurnent in opposition to tlte civil riglit to counsel claim, the

court issued an or<1er for supplcmental briefing from thc parties ancl anrici to addrcss whethcrthe case was rloot and/or whether the duc proccss claim lvas ptoperly lrefore thc court. InAugust 2009, the Alaska Supreme Court issued an order clismissing the appeal as moot.

CaIÌJbrnìa: Tn Octotrer 2006, the Confercnce of Delegutes of Califbrnia Bar Associations(now known as the Conference of California Bar u\ssociations) adopted a resolttliou,cndorsed by the state's chiefjustice, recommending sponsotship of lcgislation to amend the

st¿rte constitution by actding the lollowing languagc providing a right to counsel in certain

civil cases: "All pcople sliall have a righf to the assistance of counsel in cascs bcfore forums

in rvhich lawyers are permitted, Those who oannot afford such rcpresentatiotl shall be

provided counsel rvhen needcd to protect theit rights to basic hltman nccds, includingsustcnarlce, sheltcr, saÍbty, health, child custody, and othel categories the Legislature rnay

identify in subsequent legislation."In Novemb er 2006, the California Model Statutc Task Force of the California Access

to Justice Commission (an cntity funded by the State Bar of California, with board menrbers

appointerl by thc state trar as well as other governmental artd non-governmental entities)

distributed a modcl statute, known as fhe State Equal Justice Act, implernenting a broad

"right to equal justicc" in civil cases (including the provision of publicly-ftrnded legal

services) with very lirnitecl exce¡rtions. The task force dish'ibuted a second moclel statute iu

March 2008, knowrr as thc State llasic Access Act, which provided a morc nârrow right tocounsel in cel'tain high-stakes urattcrs involving basic neccls such as sltelter, stlstenancc,

safety, healtir, ancl chilcl custody. Both acts address a variety of issues that statcs may face

while consiclcring thc implement¿rtion or expansion of a statutory right to counsel in civilcases, including the scope of the right, oligibility critcria, clelivery of services, and

adrninistration issues. Adclitionally, the Calìfornia Access to Justice Commission's Right to

Legal Scn,ices Committee was involved in designing a pilot prograrn to provide free

representation to poor'litigants in high-stakes civil cases that ultimately informed the content

of Assembly Bill No. 590 (later enacted as the "sargetrt Shriver Civil Counsel Act" in 2009).

In October 2008, the Bar AssociaÍion of San Francisco held a confbrence entitled"Ilridging thc Justice Gap: Thc Right to a Lawyer" that tbcused on the state movement to

implement rnalldates and funding for a civil light to cottnsel. Mot'eovcr, reports indicate that

both the Bar Association of San Francisco ancl the Alamecla Couuty Ilar Associatiori*-thetwo lalgest bar associations in Northern Caiifornia-focused a significant alnount of their

cfforts cluring the 2009-201 0 bar year on thc right to connsel issuc. Further, tnentbers of the

Bar Association of San Fraucisco's Justice Gap Committee are cxploring various strategies

for prornoting and cstablishing a civit righl to counsel at the state level and lrokling focus

groups with menrbors of the general public to infoun any possiblc futLlre legislativc efforts.'l"he commiticc will coltvene a uroot court in 2010 focusing on whether there is a right to

)

a

105 (It evised)cornscl in civil cascs unclcr thc Califolnia Clonstitutiorr. Attorncys fiom two promìnent law

f'r¡¡s i¡ the state (Morrison & Iìoclster and Cìoolcy-Gocldarcl) u,illbc arguìng opposing sides

of the issuc, and sotne retirecl Court of Appeals justices will act. as -iudges.Orr October 1 t. 2009, Calil'ornia G<lvernol Arnold Schwarzencgger signed into law

Assembly Ilill No. 590, the "sargcnt Shrivcr Civit Counscl Act," which provicles funding

over six years for a pilot progr¿rm (beginning in Juty 201l) to evaluate the effèctivcness ofprovicling counsel1.o pooi litigants in certain high-stakes civil cases. The pilot program willbe finded through ¿r Íì10 increase in ccrtain ¡rost-judgment court fees ancl is expected to raise

$11 million pcr year. [n rcsponse to the state's current budgct crisis, initial rcvenuc fiom

thesc fees will be diverlecl to the court system budget until 201 1, after which the revenue willbe usecl to ftrnd the piLot programs. Rcprcscntation will be pr:oviclcd through a paltnership

betwccu a cortrt, a leacl legal ser:vices age ncy, and otlter cornmunity legal serviccs providers

i¡ honsiug, domestic abnse, conscrvatorslri¡r, guardianship, and elder abttse cases, as well as

certail .uito,ty cases. Tl're program will be evaluated accolding to scveral f'actors, including

clata on the allocation by caÀe type of funcling and thc impact of thc program on families ancl

chilclren, and a report is clue to the legislatr-rrc by January 2016, Currcntly, ihe Judi.cial

Council is working to establish an implcrncntation committec for the program.

ÍIowai.í: In l)ecember 2007,the Hawaii Access to Justice Ilui-a group including the

^ -- - -. -a:-.- rr^--.^:: T..^¡:^^ E^,.-¡-f:^.. +1"a ¡t.¡ta ì,,¡1i¡iorrr .t.rl rrr,,'inrrcI'l.a\¡,râl¡ ùtAlC !JAI ê-SSrJçIäl.l()ll, l'!ilWAlt Jl.!ùltLtt I uullL¡Gtrurrr \rru ùrqrvirru¡vr(rtJt u¡rv vs¡ ¡usu

aclvocacy or.ganizations-issued a report listing ten action steps necessary to increase access

to justicð in ihe state þy 2010, orrc of rvhich is the recognition of a right to counsel in civil

cases i¡volvi¡g basic human needs. Further, the l{awaii Aocess to Justice Courmission,

created by state sgpreme court rule iu May 2008 and inclucling three nrembers appointed by

the state bar assooiation, established a Comrnittee on thc Right to Counsel in Certain Civil

Ilroccedings, which is charged with: (a) studying cleveloptnetrts in oLher jurisdictions

regarding ihe estabtishmeni and implementation of a civil right to counsel; (b) recommending

rhe typeiof civil matters in which counsel shoutd be provided in Hawaii; (c) assessing the

cxteni to rvhich attorneys are available for such matl"ers; and (d) recommending ways to

ensure counscl is availaþle in these ntatters. The conrrlittee met in August 2009 to consider

ncxt steps, including the possibility of drafting a resolulion.

Muryløn¿: In 2008, the Maryland's chicf .iuctge appointed thc Marytancl Access to Justice

Commissio¡ to devclop, "oot:,linute,

and impleuretrt policy initiatives designed to cxpand

access to thc civil j¡stice system. In its first year, the Comtnission has been gathering

inforr¡atio1 from ihe public ancl witl issue a rcport rvith recornrnentlations at the conclusion

of this prooess. Irr Novernber 2009, thc Cotnmission issr.lecl au interim report tltat, among

other tËings, dctails its discussion and examination of possìblc strategics for impiernenting a

civil right to counsel in Maryland. The rcport includes a recommendation tliat closcly tracks

the language ol the ABA's 2006 civil riglrt to counsel rcsolution ancl statcs that "[t]he

Marylancl À"""., to Justice Commission sup¡rorts thc plinciplc that low-incorne Matylanders

s¡orild ¡ave a right to cr¡unscl at public expcllsc in those categorics of adversarial

3

a

a

105 (Revised)proccoclings where basic hurnan necds are at stake, sLtch as those irlvolving shclter,

sustcnancc, safcty, health or chilcl cr"tstocly."

Mussachusells: OnMay 23,200?, the Massacliusetts Rar Asstlciatiolr acloptcd a rcsolution

urging thc st¿rte "to provicle legal counscl as a mattcl of riglrt at publ ic cxpcnse to low income

persons in those categol'ics ofjuclicial procccclings rvhere basic hutnan neccis ale at stake,

such as thosc involviug shclter, sustellance, safety, heallli, ol child custocly, as clclhnecl in

I{esolution I I 2A of thc Amcrican Rar Associ¿ttion." Furthcr, in October of that ycar, the bar

association j<lined forces with thc Massachusctts Acccss to Jttsticc Commissìon to sponsor a

"CiviI Gideon" symposiutn'lhe Boston Bar Association and the lv{assachusetts Bar Association creaþd a joint

Jlask fìorce ou the Civil Right to Counscl, which issued an exteusivc rcport otr Septemtrer 9,

2008 cntitiecl "Gideon's New Trumpet: Iìxpanding the Civil l{ight to Counscl itilr4assachuselts." Thc report pto¡rosed establishing pilot programs in the state that would

provicic counsel in certaitt civil cases.

In May 2009, follorving a recommendation of the joint Task Force on Civil Right to

Conlrsel and with grant fundir,g totaling $300,000, the lJoston Bar Foundation anci other

aclvocates launched two pilol. projects to provicle counsel to low-income individuals itt certain

cvictign defense cases irr the Quincy District Court and the Northeast l{ousing Court in, a I t--- rl-- a t------^^l^---.^¿¿.r l.)^- D^,.-,1^É:^.. ^-.1 ^+L^*[,4fiss,acnusetts. I nc granß were awar(IçG LìJv !It(i Lvt¿{Ssauuu¡;uùr.ì\ L)¿1r r.'urlrru4rr\[r 4uu u(¡r!¡

local foundations and fi¡ncl the provision of'legal representation by attorneys from Greater

Boston Legat Services anct Neighborhoocl Legal Services in Lynn. The pilot projects will be

cvaluated by a legal expert/statistician who will conduct a randomized study. In addition, a

more informal evaluatiòn will be conductccl involving cotttt otrsetvation, interviews with

litigants ¿¡nd cotu[ persounel, lile reviews, ancl comparison ol'data gathcrcd from the clockets.

Ittichìgan.: In May 2009, thc National Coalition lbr a Civii Right to Counsel (NCCRC) filed

an ar¡ic¡s brief in In re McIlride, No. 136988 (Mich. 2009), a casc bcforc the Michigan

Snplcme Coult involving the denial of couusel to an incalcerated f¿ther in hearings that

terminated his parental rights. NCCRC is a broad-based association formed in 2004 that

includes rnore than lB0 individuals and organization.s from over 35 statcs ancl is committed to

supporting efforts to expancl recognition and irnplementatiou of a right to couusel for the

poor in civil rnatters. Tire father appealcd the unpublished decision of the Michigarr Court ofAppeäls, in which the court hcld harmless thc error of thc lower court ìn neglccting to

afpoint counsel fcrr the father unclcr statutory law. NCCRC's brief arguecl that the parcnt had

a-right to counsel uniler the Micliigan Constitution, and that the complcte denial o1'counsel

carl nevcr þe trarmless error. ln .Iune, the Michigan Srtpremc Court dcniecl the fathcr's

request for re'r,iew, but the olclcr includcd a strongly worded dissent agreciug that the fathcr's

duc process rights had been violatcd.

Minnesolu: Írt2007, the Mirurcsota St¿rte Bar Association crcatccl a Civil Gideon Task Force

fo explore the feasibility of establishing a civil right to counscl in Miunesota attd analyze

4

a

t

105 (Revised)hor.v suoh a right niight affcct the lcgal scrvices de[ivery, public clef'etrse, county attot'ney, and

judicial systelns in thc statc. 'ìllie taslc lorcc consists of 60 membcrs appointecl by the state

bal president r.vith broad representa[ion from all parts of the civil and crimirial justice systenr,

inclucling judges, public dcfenclers, private attorncys, and legal servicc providers, Sirtce the

goal of the task f'orcc involves thct-finding rathcr than implementation, the task force willcorrsicler alI sides of the issue, rveighing the pros and cons of zr "Civil Gideon." Additionally,the task force is considering '"vhether to convene lbcus groups or hold ltearings to gain the

client perspective as well as cducatc the public on what a civil right to counscl might rnean

lor the oitizens of Minnesota. Further, the task fbrce producecl a whitc paper describing the

scope of r:iglit to counsel culrently in Minncsota and possible areas for expansion, Finalty,the Juclges' Committce of the task forcc spousorecl a half'-day conference on October 30,

2009 (cturing National Pro Bono Week) at St,'lhomas Law School, at which Walter Mondalegave the kcyllote speech and Justice Earl Johnson, Jr. also spoke regarding civil r:ight to

counsel issues.

New Harn¡tshire: In 2006, the New lìampslrire Citizens Comrnission on the State Courts,which was crcatcd via appointmcnts by the Chief .hrstice of the New Hampsliire Supreme

Court, issued a rcport recommending that thc state "examine the expansion of legalrcprescntation to civil litigants unable to afford counsel and study the implementation of ac"t^.1)t)

New York: In November 2007, a bill was introduced in the New York City Council toestablish a right to counsel f'or low-income scniors facing eviction or foteclosure. Althoughthe matter has yet to come to a vote belbre the council, reccnt developments tndicatc that thc

bill likely will bc reintroduced soon. In December 2008, thc New Yolk County Lawyers

Association's prcsidcnt publishcd a letter supporting the bill and urging the expansion of the

right to cot¡nscl to include all low-income litigants facing eviction or foreclosurc and ullableto afford counsel. A bill was also introduced in thc state legislature in 2009 to give courtsdiscretionary power to appoint counsel for lolv-income seniors facing eviction and to sfay the

proceediugs for up to three rnonths to allow seniors to find counsel,Also in 2007, the plesident of the New York State Bar Association, Kate Madigan,

published an article in thc New York Law Journal on tbe need for expanding thc right tocounsel in civil cases within the state. In March 2008, the New York State Bar Association

co-spousorocl with Toulo Law School a civil right to counsel confcrerlce, resulting in a

symposium issuo ol thc Touro Law l(eview devoted to civil ríght to counsel matters and a

white papcr de scr:ibing the soopc and possiblc cxpansion of the riglrt to counsel in the statc.

Thcreafter', the state bal association launched a radio cam¡raign to ¡rrotnote the civil right tocounsel concept and, in Novclnber 2008, adopted the conference rvhitc paper as its report.

The same clzry, the lral association passcd a resoluiion urging the legislature to cxpand the

right to counsel to cover vulnerable low-income people facing eviction or foreclosure from

their holles as rvell as certain uncmployme nt insurance claitnants.

5

105 (Revised)North Caralina: llhe Cirief .lustice of thc Norlh Carolina Supreme Clourt has convenecl a

Civit Right to Counsel Clornmiitec of that state's Acccss to Justicc Commission. ln aclclition,

the North Carolina Center on Povcrly, Work, and Opportunìty hosl.ect a half-day confcrcnccon October 30, 2009 relating to access to justice ancl civil right to counscl issues.

Itennsyh,nrtiu: In Novclnber 2007, the Pcnnsylvania Bar Assooiation passed a resolutiottconsistent with the 2006 ARA resolution urging the state to provide counsel as ¿t mattcr olright to lorv-income litigants in high-stakes civil proceedings, suclt as those involving"shelter, susterrarlcc, safety, health or child custody." Theleafter, thc bar association tbrmecl

its Acccss to Justicc Task Force to develop broad irnplementat,ion stratcgies fbr the right tocounsel enclorsed by the association, inctudiug sirategies for funcling a right to counsel aud

for lnaxiurizing plirrate bar involvement in eff'orts to iru:prove âccess to the justice system.

l'he Philaclelphia Bar Associalion also has fbrrned a "Civil Gideon"'I'ask Forcc toconsiclcr expancling thc civil right to counsel in the state. The task force co-sponsorcd a

symposiurn on Alrril 10, 2008 with the Pennsylvania Bar Association's task force. On April30, 2009, thc Philadelphia Bar Association aclopted a rcsolution (tracking the language of thcABA 2006 rcsolution) calling for the establishrncnt of a right to counsel in civil cases

involving basic hunran needs and directing thc bar associalion's Task Force on Civil Gideonto: (t) investigate all nreans for effectively providing f'or this right, including, for example,co!!aborative moclel-c, lcgistativc ínitiatives, fr-rnding propr6s¿!5, pilot proicc.ts, ancl othcrexploratory vehicles; and (2) upon cornplction of such investigatiou, prepare and submit areport with recornrncnclations to the association's Board of Govemors. The Task F'orce

sut¡mitted this report to thc Boarcl of Govemors in Noveniber 2009,

Texas: On June 25,2009, a petition for writ of certíorari w¿u filed in the U.S, Supreme

Court for ll.hine v, Deaton, in which the pctitioncr, 'ft'acy Rhine, asked the court to considerwhether Texas Family Cocle Sec. 107.01.3 (which provides corrnsel to indigent pareuts facingterrnination of parental rights in state-initiate<f snits, but not privately initiated actions)viotates ttre l4th Alnendment's Equal Protection Clause. The petition aiso raised the issue ofwhether the cumulative denial of safeguards ili Rhine's casc violated her due process rights,Additionally, the cert pctition argued that Rhinc's casc presented thc U.S. Suprcme Courtwith an opporlunity to address thc refusal on the part ofìstate trial courts to adhere to the

Court's 1 981 ruling ín La.ssif er v. I)epat"tment o./'Social Services tliat courts evaluato the neecl

fbt court-appointcd counscl using the factors articulated within the Suprente Court's 1976

decisiorr in Matthews v. Elclritlge. On Octobcr' 5,2009, tlie Court invite<i the SolicitorGcneral of Texas to "express the vier.vs of thc State" in Rhine v. Deaton. In December, the

staie filed its amicus bricf in the case opposing a grant of the ccrt pctition, On January 25,

2010, the Court denieci the cert pctition in llhine v, De.aton,

Washiny¡tor¿.' In Jant¡ary 2009, a Wasliingtou stâtc appcllatc court tuled ín Bellewte Schc¡ol

Di.ctrict v. E.S that students have a clue process right to counscl in truancy procccdings that

may lead to eventual detentioll. The casc r.vas appcalecl to the Supretuc Court oJ. Wasliingtort

6

a

105 (Revised)arid oralargurnents lvcre he¿rrclon January 19,2010. On Febrt¡ary 19,2010, lhc Korematsu

Center on l-aw arrcl Equatity ¿rt thc Seattlc University School ol Law, University ofWashington School of Lau,, and Gonzaga University School of Law co-s¡lonsorcd a

syn'rposiurn cntitled, "Civil Legat Reprcsentation ancl .Access to Justice: Breaking Point oL

Opporturiity tirr Change?" Panels a<iclrcssed a discussion of thc landscapc of the civil right to

co¡nlscl movcmcnt, the cleveloprneut of the rigltt uudcl statc lar.v, and appropriatc stancfards

fol implcmentation. Aclditionally, a working session was hcld to explore principlcs upon

which a civit right to counsel in Washingtott state could be lrascd.

Tlrc Necd for Further Guidance to l{etp Implement ABz\ Policy: fhe Proposcd ¿tI}'4 ßasic

Princi¡tles for ø Right trt Coun.sel in Cívil Ptoccedíngn^

The ABA's 200ó civit riglrt to counsel policy has played a key role in scvcral of tltceflorts discussecl above. However, nal.ional advocates and A.IIA Ieadership agree that, almost

fou¡ years later, the ABA can and shoulcl bc doing lnore to help suppolt stato efforts to advancr:

thc establistrment and implementation of thc rigbt to counse I tlrroughout this country. In 2009,

AIIA Presi<lent Carolyu Lamm requcsted assistarrce frorn the ABA Working Group on CivilRiglrt to Coulrsel (oornprised of representatives from various ABA sectious, committees, and

other entities interested and involved in civil right to counscl issues) in identifying practical

nleans for a<lvancing thc ABA's existing civil right to couusel policy. This llepoLt withn-.-.-..-----^^--)^.:^- ^-l¡.1.^ :..^^*^..^ô-Å ,1 ÞA II-^i^fr,,ì','.lnlr.,fntnflìohtln.t(-UUUf!II.lfU!!rrliJllu!t' ¿llltl L!!t; 4L/t/tJrtrl)dtrJ llrË yruPvùvv /^urr ps\"v t

Counsel in Civit Legul Proceeclíngs (Principles), represent a collaborative effort by members ofthe Working Gronp, with significant input from urembers of thc legal services cotnmunity as

well as pardcipant.s in the National Coalition for a Civil Right to Counsel (NCCRC), to provirle

much-nãedecl, easily accessible guidance regarding tire effcctive provision of civil lcgal

rcpresentation as ¿r rnatter of right.2 Achieving the ty1:e of public policy change involvecl in

crãati¡g and funding new civil right fo counsel systems recluires the support of a rvide variety ofpotentiãl allies, many of whom mây not bc lawycrs (including, for example, cornnunity and

business leaders, representative s of local government, tnotttbers of chambers of commcrcc,

meclia reprose ntatives, and represcntatives of social service or faith-basccl organizations).

Accorclirigly, the black-letter Principle.s are written in clear ancl concise language and embody thc

minimum, basic requirernents for provicling a right to counsel that havc becn culled from the

larger þoc1y ofrelevant casclarv, stAtntes, standards, rules, journal aÉiclcs, and other sources oflegãl infolrnation lhat may be prove to be overwhelniing for laypersons to assimilate.

t 'l'hc tcpresont¿rrive entitics ol'thc AIIA Civil Rigbt to Counsel Working Croup inclutlc: the Standing Cotnruittee

on l-egaiÁ,i<l and tncligcnt Defendants, the Section of Litigation, the Section of Busincss Law, the Judicial Division,

tlre Scction of Tor{ Trial and [nsurance pr:actice, the Coalition lor Justicc, ihe Corn¡nissiort on f)otnestic Viotcnce,

a¡<lthe Courmissiononlmmigratìon. (lonoulrentlywitlrthcploposcdAB¡\BasicI'rinciplcsoftRigltttoCounsel in Civil I)rocccdings, the Working Croup developed a ploposcd modcI stattrte, known as the ABA Model

Access Äct, for i¡r¡rlementati<.rn ola civil right to cotrnscì; this utodof sta{itte also has l¡ccn subrlrittcd to, and

r.ecor¡¡¡cn{ed f'or idoption by, thc ABA IIouse of Delegafes in Augtrst 20 10. The Working Cloup solicitcrl

co¡1¡lc¡t on both oi'these ploposals frorl thc lcgal sclvices cotnnrltuity nt largc and othcrs (hroughotri the nation.

1

t 05 (Revised)Conclusiou

The mcmbers of the ABA Worlcing Gloup on Civil lliglrt to Cotrnscl aucl co-sponsors ofthis Report with Recomnrenclation firrnly believc ihat the proposecl AB¡l llasìc Princi¡tles of ø

Ilight to Counsel í.n Cit,il Proceedings will scrvc as â convenient educational tool for use by

aclvocates working to implement thc ABA's existing civil right to cotrnscl policy. Moreover,

ex¡reriencc has shown that this type of straightfbtward policy statetneut, wlten rnarked with the

ABA's im¡rrimatur, can be extrcmely efllective in helping to gamer thc broad-based sttpport

necessary to irnpleurent systernic change, Tlic "ABA Tcn Ptinciples tbr a I'ublic Dcfense

Dclivery System," adoptecl by thc IIouse of Delegatcs in 2002" ale wiclcly acknowleclgect to have

becn helpful in educating ancl convincing policymakcrs and othels involved in examining

criulinal incligeut def'ense systems to undertake necessâry reforms iu scveral states. 'lhe

ploposecl ABA ßasic Principles of ø Ríght îo Counsel ín Clit'il l'rocecdings follows this rnodel

ancl, hopeñllly, will prove to lre as useful ín canrpaigns to establish and implemetlt a right to

counscl for poot'persons on the civil side.

Respectfully sutrmi ttecl,

ll.obert E, Stein, ChairStanding Committee on Legal Aid and Indigent Dclenclants3

Augur^t 2010

3 Members of the Al.!A Workhrg Grorrp r¡n Civil Riglrt to Counsel (ARA Dntitics are indicatccl for

idcntllication prrrposes only)l

lv'lichael S. Creco, Cltair'(Past Prcsidcnt of thc Anrcrican Bar Assocíation)Terry Brooks (Courrsel, Stancling Conrnrittcre on Legal Aicl and Ilrdigent Dcfcnclants)

Petcr I-f . Carson (Scction olBusiness l-aw)S[Lrbhangi Deoras (ConsLrltant, Standing Conrnrittee orr l-egal Âid and Indigent Del'cndants)

Margaret Bell I)rcw (Cotln-rission on Dotnestic Violence)Justice Ear'l Johnson, Jr. (ltet.) (Standing Co¡nruittcc on Lcgal Aid and lntligerrt Dcfendants)

Wiley E. Mayne. Jr. (Scction ol Litigation)Neit G. Motsride (Standing Commi(tee on Legal Aid and Indígcnt Defendnnts)

JoNeI Newrnan (Conrrttission on hnrnigration)Robcrt L. Rothman (Secticln ol-I-itigation)Judge Edward Schocnbatt¡n (Judiciat Division; Coalition lor Justice)

Robert E. stcin (standifig conrurittec orr Lcgal Ai<J ancl Indigcnt Dcfcndants)

lr,fichcllc Tilton (Seotion of Tort T'r'ial irncl [ttsttrancc Practice)

I{obcrt A. Wccks (Standing Cornrnittee on Legal Aid and Incligent Defèndants)

Lisa Cl. Wood (Scction of Litigation)

oö

105 (Revised)

ARA lìasic Principles f"or aRight to Counsel in Civil Legal Proceedings

Attgttst 2010

The Obiective

The goal of thc ABA Basic Principles.þr a Rigltt to Counsel in Civil Legal Proce.eclings

(Principtes) is to aid in implcmenting Amclican Bar Association (ABA) policy, adoptcd by vote

<lf the ABA l-louse of Delegates in August 2006, that "urges feclertrl, state, and territorialgovernments to proviclc legal counsel as a mattcr of right at public expense to low-incomeporsons in those categories of advcrsarial procccdings where basic liuman needs are at stake,

such as those involving shelter, sltsterance, salbty, hcaltli or child custoc{y, as cletelrnincd by

each juriscliction."a

These Priuciples set folth ilr clear terms the fi.tndamental requirements for provicling

cíicctivc rcpreseniaiion in ccr:iain civil procee<iings 'ro FlL'rsurrs uriatiic io pay foi'ilie se¡-viccs of a

lawyer, in order to guide policyn'rakers ancl oflrers whose support is of irnportance to the

implementation of civil right to counsel systems in the United States. Since the Principles

embocly minimum obligations, jurisdictions rnay wislr to provicle broacler protcction for the rights

of civil litigants beyond the scopc ol'thcsc basic rcquir:ements.

The Principle,,s

l. Legal representation is provicled as a mntter of right atpublic expense to lolv-incomeper.sons in adversarial proceetlings rvhere basic huntan needs-such as shelter,

sustenauce, safety, health, or child custotly-are at stake. A system is establishedrvhereby it can bc readily ascertaincd whether a particular case falls within the

categories of proceedings for rvhich publicty-funcled legal counsel is provided, and

whetherr a person is otherwisc eligible to receive suclt representatio¡r. The failure todesigrrate a cltcgory of proceedings as one in rvhich the right fo counsel applies does notpreclude the ¡rrovision of legal represerrtation from other sources. The jurisdiction

ordinarity does not provi<Ic publicty-funded counsel in a case rvhere the existiug legal

aid delivery system is witling a¡rd able to provide rept'esentation, {rr rvhere ihe person

can otherlvise receive such represeltú:rtion at no cost.

a AH¡gnlc:¡rN ll¿rn ¡\SSOCln'rtoN, ItnC<lVN4htNI)A1 lON I l2A (Aug. 7. 2006), uvailaltle ai

!¡!q¡-:-/llt.lru,:¡,|¿.trç!olg,1l.-:litl¡ç"1 :::iç:ts¡cl-¡tiç!ltlsl"l!rr¡ds,/,06¿lll¿A,llilf .

I

105 (Revised)Coutruentut'¡:

Principle I echoes thc ABA resolution (acloptecl by its House of Dclegates ort Attgttst7, 2006) advocating for govcrnments to ñ"rnd ancl supply counsel to indìgent civil litigants as

a mattcr ol'right iu those categories of adversarial procecclings in rvhich basic hltnran necds

are at stakc.s 'lLe resolution specifics the iìlliowing five examples of.categorics involvinginterests so fundar¡ental ancl critical as to triggcr the right to cotttlsel:u

. "Shelter" includes a ¡rerson's or family's acccss to or atrility to t'emain in a dwelling,and thc habitability of that clwelling.

. "sustenancc" includes a persolr's ol farnily's ability to prcscrve and tnaintaitt assets,

iucotne, or financial support, whcther cicrivcd from cmployment, court orderedpayments based on support obligations, govertrment assistancc including monetarypayments or "in-kind" benefits (e.g., f oo<l stamps), or from other sources.

. "Safcty" includes a pel'son's abitity to obtairi legal remedies afÏorcling protection frornthe thrcat of selious bodily injury ol harm, including proceedings to obtain or cnforcc

protection orders because of'allcgecl achral or thre¿tteuecl violcnce, ancl otherproceeclings to address threats to physical well-being.

. "lleahh" includes åccess to health car-e tor treatment of significant health ¡rroblcms,whether the health care at issue would be financetl by govemnlent programs (e.9,,

Medicare, Medicaici, VA, etc.), financcci through privale instuance, provicte<i as aü

cmployec benefit, or othcrwise.. "Chilcl custocfy" includes proceedings in which: (i) the parental rights of a party are at

risk of bcing tcnrrinatecl, whether in zr private action or as a resttlt of proceedings

iriitiaicd or intervcned in by the state for the purposos of chikl protective intervention,(ii) a parent's right to residential custocly of a child or thc parent's visitation rights ale

at risk of beiug terminated, severely limited, or subjeot to a sttperuision requirement

or (iii) a party seeks sole legal authority to make major dccisions affecting thc child.The right to rcpreseniation fol:childlcn shoulcl bc limited only to proceeclings initiatcd

by thc state, or in which the state intervencd, fior the pulposes of child protectiveintervention.T

The abovo list should not be consicfered all-i¡rclusivc, as jurisdictions tnay provide for a rightto counsel in aclclitional catcgorics of proceedings or for espccially vrrlnerable indivicluals

with specitic impairrnents or lrarriers requiring the assistanoe of counsel to guarantcc a fair

t z\uentc¡x Ll^R AssoctATIoN, [tt]cot',lMr:NDAl'loN I t2A (Aug, 7,7006), avttikthle athtÍt.;,//rvrvrv,abançt.erlVl!1{r!rqr[ces^c]Ài!iirirrrvql-e¡!!l¡,!óÀ]:12Â.LLst'('Anrc¡ican

Bar-Association's'['ask lr<lLce on ¡\ccess t.o CivilJustice, Report to tlte lk¡ustt ofDelegate.s t3 (Aug.

2Q06). avaitablc rrl !r!.Q2;/i'r1'.lllw.Ctxtttp-t.qtg,l-LEgî,ir,.rUC.ÊVlç]¿rUf,t8rrlloír¡!V-Q-Q¿\-l-LlÀ+rli,t 'l-1,i, ,l"finitiori is co¡rsistcnt with fhe proposecl Arnerican ÏJal Association Report rvith lìecornmenclation, "ABAModcl Access Act," g 2.8.v, at 3 (submitteti flor consideration by ABA f'{ousc of l)elegntes irì August 20t0) and

AMIìRIcAh* ßAR .A.sSoCf /\T-ICTN, S.I.ITNIIIIìDS oF I)RAC,| ICE tIOR I-ÂWYF.RS WIIO RßI'R[JS¡]N.I CIIILDIìIJN IN ABUSE ANT)

Nt:Gt.ßc.¡ C,rS¡s, Stsndard f l-I (1996), (:tvdileble or ht1¡llrvrvrv,4ll4rtct-ugstìrld4uutiuui$-luilc.u!!.')

10s (RCViSEd)hearing.s On the other hancl, ttrc f¿rilure ofjurisclictions to designate particular categories ofplocecclings as those in whioh thc right to cortnsel a¡r¡rlies shoulci uot discouragc ol'prcvcnfother sources (iucluding legal services agencics, pro bono progralÌls, law firms, or individualattorneys) liom supptying iegat leprescntation at no cost in such areas.e Arlditionally,counsel nced not be provicled at statc eKpcnsc if a larvycr is availab[e to a litigant on a

contingcnt fec basis ol via arrother arrangemerlt by which the litigant's interests arc plotectedby counsel at no cost (inclucling, fcrr: example, as a lesult of insurance policy ¡rrovisions or-the

exìstcnce of a class ¿rction larvsuit that the litigant realistically rnight bo ablc to join),t0

Thc right to counsel dcscribecl in Principle I applies in adversarial ploceedingsoccurring in both juclicial and "quasi-juclicjal" lribunaii, iuclu<ling administrative agencies.tl

lnhercnt in the Pl'inciple is the strong presumption that full rcpresentation is required in allsuch adversarial procecdings; nevertheless, in soute situations, "limitecl scope representatio¡t"

may ¡rrovide an appropriatg cost-el'fbctive routc to ensuting fair and eclual access to j ustice. l 2

"Limitecl scope representation" is rcasonably dcfincd as the perfornrance by a liccnsed legalprofessional of one or more of thc tasks involved in a party's dispute before a couLt, an

adrninistrativc proceecliltg, or an arbitrat.ion body, to dre extent pcnnittecl by Rule 1.2(c) ofthc ABA Moclct Rules of Prol'essional Conduct or the jurisdiction's equivaleut, and wllensuch limited representation is suffrcicnt to afford the applicant fbir and equal acccss toiustice

Principle I also requires that jurisdictious estatrlisil a system to determine readily at

thc outset of the proceedings whether an indiviclual is eligible to reccive cottnsel as a tnatter

of right, In making these cligibilify determinations, thc clecision-rnakcr should consider

8 Ame rican Bar Association's 'lask Forcç on Access to Civil Justicc, Rcport lt¡ thc House <l'f)elegate.s, su¡tra note 3,

at 12-l 3.e C¡LIronNlrr Accßss ro Justrcn Corøvrssror.r's MoDßt. S'rn'rula Tirsr lìonce, S't'^rE IIASIc Acc)ESS Acl $$ 401'404 (Feb.8,2008) avuilablc at

ArnericanBar¡\ssociation's'l'askForceonAcccsstoCivil Justice, Il.e¡torltotheHouseo.fDe.legates,supranote3,at 14.

'0 CaLrponNrn Accoss ro Jus'ncrì CovrurssroN's Moos.t, Slnturn'll.\sK. FoRcE, Slrtr¡ R¡slc Acctiss lrct,supranote 5, $ 3 0 i .3.2; ¿\nrerican Bar Association's 'fask Force on z\ccess to Civil Justicc, Repttrt to tlte Hottsc ofDelcgale,r,su¡tra note 3, at 14.f r Arncricarr Bar' ¿\ssoc iation's 'l'ask Forcc on Access {.o Civ it JLrsticc, Report to tltc [-lous'a of Dclegatcs, sttpru rtote

3, at 13.r2ArnericranllarAssociction'sTaskþ-orceonAcccsstoCivil Justice, Ile¡tnrihÍhel-lt¡usettJ'Dele.gutus,st¡p¡unofe3, at 14. ln lightof the extraorclinary lcvct of u¡inretneecl, autl thc linlitecl l'esorìrces Iikcly ttlbc available to supporl

additional ¡lositions for state-funcletJ tegal selvices ol othel sourccs of lcgal teprcscn{.ation f'ol the poor, sonle states

ntay wish to consicler autholizing pa.ralegals or other lay indivicluals who contplctc appropriatc tlainine progratns toprovide ccrtairi types of'Iiuritcd, carcfutly-clcfìne<f lcgal services in adnrinisttatíve proccetlings to those eligible forreprùscnlaliorì. If pclniitted, sr.rch serviccs should always be provirlerl trnrler thc clileci supclvision ola lawycr,

3

105 (Revised)iãctors otllcr than casc catcgory and f,urancial eligibility, ftir examplc, the nrerits of the c¿rse

a nd thc siguihcancc of the relief' sought. I l

Principlc 1 does not cornmsnt on who shoulcl be res¡ronsible I'or making eligibilityiietcrmiuations, lcaviug this dccision to tlie disclction of individualjurisclictions. I'Iowever, aproposcd rnodel statute for civil right to counsel imple mcntation (known as the "ABA MoclclAccess Act,") has been submitted for consi<leration by thc l{ouse of'Delcgates in August20 10, and adclresses this issue. Thc proposcd "ABA Model Access A.ct," cousistent with thc"State Basic Access Act" (created in2008 by a task t'orcc of thc California Access to Justice

Comlnission), suggests onc approach that nray be suitablc, clcpcnding upon the f aw of theenacting juris<iiction: the delcgation oflthe authority to urakc eligibility and scopc of services

dccisions to idcntificd, certified local organizations (inctucling legal selvices orgatrizationsfunclcclby thc fedcral Legal Services Corporation and thc statc IOLTA proglam) by an

inclepeudent, statewicle oversight boarcl that is responsible for policy-making and thc overallaclministration oîthe civil right to counscl program.'o

In accordance with the ABA civil right to counsel resolution adopted in 2006,Principle 1 assumes that ser'vices r¡,ilI be providcd oniy in thc contcxt of adversarialproceeclings. Many legal matters impacting the poor may bc rcsolved witliout a<fversarialprooecdings (e.g. tlansactional mattors, issues relating to applications for benefits), andcc,unsel inay

-tre irnliorlaüt to a fair resoir-itioir of such matters. While these Fiincipies <io not

address scn,ices in non-¿tdversalial scttings, jur:isdictions lrlay wish to consider whetherservices in such settings provide a useful prevcntive approach ancl miglrt corìserve resourccs

that otherwise r,vould need to be expended in the corlrse of supporting adversarialproceedings.

2. Financial etigibility criteria for the appointment of cor¡nsel ordinarily take lnto accountincorne, liquicl assets (if any), t'amily sizc and clepcrtdents, fixed debts, medical expenses,cost of living in the locality, cost of legal counsel, and other ecortomic factors thai affectthe client's ability to pay attorncy fees and other litigation expenses.

Commcntary

Cousistcnt with thc viervs expressed in the report accompanying the ABA's 2006civil right to counsel resolution, as well as thc cornmentary to the "ABA Modcl Access Act,"Principlc 2 lcavcs it to i¡rclividual jurisclictions to cstablish l"urancial cligibility critcria basecl

in part <ln economic factors spccific io each locality, as opposerl to cmployirig an across-the-

t3 See, e.g., Cìnltt'oRNI.,t AccBSs 1'o JLJS-trcìE CoM¡urrsstoN's Mclonl Sr'¡,r'u-rr¡ Tnsrc Folrcti, Sr¡rrE B¡rstc AcctÌssAt:l,.tttpt'u notc 5, $301 (requiring that trial couLl cligibility <leternrirrations takc irlto account applicant's possibilityof achicving a srrccessfirl outcornc (if plaintiff; or lack olnon-frivolous def'ense (if defendant).la Proposcct Arnclican Bar Association l{c1;r>rt with Recorrrurcndation, "ABA Mod.el Acccss Act," at 9 (subrnitterilor considclation by ABA IJouse of Dclcga(cs in August 2010); Cnltr,oRNIA AcìcESS 1'o Jus'tlcti CoMvtssloti'sMourr- SÎn tu'r'r, 'I'^sK iìoRcE, Sln r e Rnslc

^.ccßss Ac1', supra notc 5, $ $ 501, 505(2).

4

105 (Revised)bo¿rrd stanclard that may be wiclely acknolvlcdgcrl to bc turcler-ittclusive (such as, lorexample, current nat.ional LSC elìgibitity guidclines).rs 'llic calculation of uet assets shoulcl

exclucìe resoul'ces noedecl to ft¡ncl necessitics of life, assets esscntial to generate potcntial

caruing, ancl h<;rne ownership (longstancling asset cxclusiou in legal services eligibilitydetcnriinations).r6 Inclivicluals of limited nreans should not bc forcecl to risk thcir homes to

a1'ford legal reprcsetrtation, espeoially consiclering the impoltirnt role of homeowltership iri

brcaking thc cycle of gcncratiorral poverty,

3. Eligibility scrcenirrg and the provision of publicly-funded counscl occltr early enough in

an ¿rtlversarial procceding to enable effective representirtion and consultation during allcritical stages of the proceeding. An appticant found ineligible ftrr representation is

entitled to appeal that clecision through a process tlrat guarantees a specdy and

ob.iective review by a person or persons independent of the indiviclual lvho deniecl

eligibility ínitially.

Comnrcntary

The requirernent of earty eiigibility screening and appointment of counsel in Princì¡rle

3 is consistent with existing national stândards establishcd by thc ABA, National Center forStatc Courts (NCSC), and other organizatiorrs regarding the provision of certain types ofreprcsentation a.s e r$aiier of rigÍit in certaiii caiegories c¡f civi! proceedings, including thcsc

involvirrg representation of childrcn in custocly and chilct abuse ntattets, o{Parents in abuse

a¡d negléct òor"r, and of inclivicluals subject to involuntary cornmitment.rT Spccifically, the

¡IBA Standards of Practice,for Atktrne.ys Representing Parents in Abuse and Neglect Ccrses

urgc courts to "(c)nsure appointments are m¿dc whcn a case first conlos beflbre the court, or

before the first hearing, and last until the case has beerr dismissecl ft'ottr the court'sjurisdiction."rs Similarly, according to the NC^çC Guidelines for Involuntary CivilCom.nútmenf, "(t)o protoct thc interests of persons who arc subject to commiturent

ti Irr.o¡rose,I Aurelican Bar Association Re¡rort witlt Recornmendation, "AIIA Model Acccss l.tot," supra note I l, ai

8;AnrcricanBar¡\ssociation'sTaskForcconAcccsstoCivilJustice, Re¡tct¡¡¡al the.Hr¡u'setl'De.legate,s,$uprcnoLe

3, at 14. Sec also CR¡-rF()rr¡rrn Accriss 1'o JUS'ilcE Cot\4MlSSloN's MoDtiL STA'IUI'D'li\SK FORCìFI, STATE BAStc

AccËss Ac'r-, supra note 5, (i$ 401-404.

'nCnrtroRNt¡.Accrrlss'roJusïcnCovr'¿lsslor'r'sMODEf,S'rA'¡uTtj'l^st<Fclltce,SrntnBnstcACCESS Ac'l',,eupra

notc 5, $$ 402(2).

't l-aura K. Abel ancl Judge l.ora J. I-ivingston, The Exirting Civil Right Io Coun,sel Infi'astr¿tc.hffe,47.fudges'J' 3

(Iralt 200t3); AMÊRlcÄN llAR AssootATror.*, S'tÂNDAr{DS FoR PR^crrcE ron Är'r'oR¡it¡.YS RI]PRË.sûNI'ING P^tt[ìN IS lN

ABUSÊ ¡Nr> Nt-..ct-tt:t CÁ.slls, Role of the.CouLt 4. (2006), nvailoble at

!rtt¿1fv-wr'..!-1¡tjrSi.9r.glqirdd1¡10rglll_!.Ct]'esc_I]_lt-t!All4t9.$t.htrpl; AMDRTC¡n ll¡t< ASSoC:tA'lloN, ST^NDARDS ot'

Plì.ACTtcD t on L,¿,wynRs WIIo Rlipt{ESriNt CutLt>tteN t¡t ABUsu ^ND

NEcl,ßcl'C,r.stls, Sta¡rclard I{-1 (i996),

at,uilable a/ hrill:/iu,rvrv.rrtranct.orll¡c!rilcì/r'9{¡=slaìdrr¡-elcJxl-ti NnrtoNRl- CENl'nR troR S'lA1'E CotJR'ts, (;ulDELlNEs

rorr Ixvor,uur¡rny Crvlr- CoMMrl'MuNT, Cuidelinc Ea(a) (19S6), uvuilable r,/ !ì][ÈiZçaltlù:rrtdrlr.ncscon.llne.or3þg1;

L..iiLsluirvj-ü c,s¡srlÇLlllllrìQ-T:rclrtlulu&c ¡.ìQIrß- 13.

'8 Avitfr.rc-¡¡¡ Bnt Asst'lc:ln rroN, S-r,vunnrìr)s FoR PRAc'rtcli FoR AI'1-oRNDYs Rtlt'REsßN'ltNc P^IìENTS lN AIJUSE

AND NEGt-Ecr C,tsns, suprct notc i4, Role of thc Coult 4.

5

105 (Revised)procccdings and ¡rermit sufTrcient timo for responclents' attorneys to prepare their cases,

attorneys shoulcl be appointed whcn commitmcnt proceeclir-rgs ar:e f,r¡:st initial.ccl."re [nactdition, statutes pt'oviding for a lighL to counscl in various categorìes of civil matters iuArkansas (involuntary corrrmitmcut ploceedings), Montana (child cttstody/tcrmillation ofparcntal rights), and Ncw l-Iampshire (guardianship of person or estatc) zrll reqr,rile the

a¡rpointment of oounsel irnmediately uporì or afler the filing of the origiual petition in the

c¿se.2o

4. Counsel complÍes rvith all applicable rules of professional resportsibility altd functionsin<lependently of the appointing authorify.

Comntentary

hi accordance rvith a lmmber of national standards relating to ihe provision ofpublicly-funcled legal represcniation in botb tlie civiland criminal coutexts, Principle 4rcquires that counsòl must lìrnction independently of the appointing aLrthority.2l In particular,the ABA Sfandards o/'Practice.for Lawyers ll.e¡tresenting Children in Custody Cases providcttrat tlie court nrust erlsure that appoinled counsel operates independently of the court, courtserviccs, thc ptrrtics, ancl the state.z2 Further, the NC,SC Guitlelin.es./itr huoluntat'y CivitComnt,innenl require that attorneys be appointed from a panel of lalvyers cligiblc to rcpl'csent^:.,:! ,.^*.-:¿---^-¡ .,.,,!-^.--:.--¿^ ^.-l :.. +1.^+ -^î^,,...---l^ ({+1,^ ^,.{^..^"*-. ^F ^++,.-..^.,- :..¡J¡vIl uulllllltùlltçrrL lçùPUlruç[ILb i¡ll'J ll! ct !!!4lrrrçr rtr4L ò(ltvËLr(ÌLrù rr¡v (urlrrlvlrrJ wr 4rrw¡r¡vJù ¡r¡

representing their clients."23

re N¿,rtonnL Crvr¡;r notr Sr'¡r'e Counts, GuTDELINËs r,on INVoluNrnRy clvtL CoMMtTMHN'f ,.r¿ryra note 14,Guiclclinc E4(a).2Ù,Srl¿ MoNt'. Coori A¡qN. $ 41-3-425 (requiring appointnrent of counsel for parcnt or guarclian "imurediately" afler'

filing of petition seeking rcnroval or placcrncnt otchild ol termination of parental ríghts); ^RK.

CODE ANN. $ 20-47-212 (Wcst) (requiling a¡rpoiutmcnt of oounsel in involtrntary co¡rmitment ploceeclíngs inrnrcdiatcly upon filing ofthc original pctition); N.t-{. Rev. Sr^T. ANN. $ 464-A:(r (r'equiring appoin(nrcnt of'courrsel "irnmediately upon the

filing of a pctition for guardianship of thc person and estate, or the person, ol estate"),?l At*'lcttcnN BAtì. AssocrAt'loN (SECTIoN ot F'nutlv I-AV/), SI'AND^tìDS oF Pnnc:trce FoR LAwYIIRSREpRBStsNrrNc Csu-oneN t¡t Cusronv Cnsss $ VI.A.5 (2003), rrailøhlc athttUlU¡VSUlrurS_Uqe4i[u-Lly/rqtor1ôAqre|ills__riluklç_uUOrblÞdf; AB^ S'l¡No¡ttos or Ptt,rc't tcti t'ott LawvensWuo RnnnnseNlCuu,olreru rN ABUSEAND NEct-Bc'¡'Cnsns, supranole [4, Standard G-1; Nr't'ti'lNaLC]ßNTERt'oRS'r'nlr Counrs, Grl¡DELINES FoR INVoLTJNTARy CrvlL CoMI\4r't'r4[N't',supra notc 14, Cuideline E4(b); AventciutBi\R Assoct^'r'toN, TEN l)ttNctnLES of'A [)[,Br-tc DEFENSE DßlttrERY Svsr-cn¡, Pnl¡ictlt.t; I (2002), uvailabla. ut

Livingston, su¡tra note 14, at2-3; C¡\r-TFORNTA AccìBSS 1'o Jus'lrcE CoMMrssrON's MoDF;Í, STATLTIË Tnsr Fottc:ri,

Sl'nr'¡ Bn¡^rcAco,ìss Ãcl.,.tu¡tru no{e 5, $$ 501-505; Avnnrc:Ar'l BAR ASsclcr.{'rtott, GirlætuSllnoxrNPnovtse:AMBRtc^'s CoNTTNUtNc Qutis't' ron llQUa,L Ju ffircri. 42-44 (2004), availablc at.b11u-ztftvw.at,urct.orf{-/[cf{¿llscl'\,i ]p.!_qILì_Gs.1'ftúlqrq]-rt¡rrll (rccomnrcntling itrdepcndence ofp^ublic tlcfensc function tlor effcc{ivc inrplcnrcntation ofright to counsel in crintinal cascs).

" ÄMEIucr\N BAR AssoctATtoN (SECTION ot'FAMrLy L^vv), SÏANDARDs orì PRACuctì t tflt LarvYERS

Rt.plìtlstsNltNc Ct-rt¡-otult,t ttt Cuslrtuy CASES.sr4rrzl note 18, {i VLÄ 5.

" Nattorunl Ct;^*l'cR Fott S't¡t't't Coufì.'rs, GLltot;t,tN tis l'oR INVoLLJNT¡ Rv Ctvtt.. Coivttvtt't'vrN't., sttpt'u note I4,Guideline E4(b).

6

105 (Revised)llo allow jurisrlictions maxintun flcxibility in clcsignìng civil light to cortnscl

systclïìs, Principlc 4 clocs not spccifii thc appointing authorityl ncvcrthelcss, \'arious

stanciards and other sorrrces providc exam¡rles that jurisdicfions may fìnd appropriate for their

purposcs. For instance, tlrc applicable NCSC involuntaty civil commitrnent gr-iiclcline vcsts

rcsfionsibility fior maintaining the pancl ol. attorncys ÍÌom which appoinlmertts must bc tnadc

with "Íur oþjcctivc, independent third party, such as the local bar associalion or: a legal

scrviccs orgauization," Ând rcquitcs courts to a1:point at[orr]eys serially from thc panel

(unless compelling rcasons rcquirc otherwise).24

Additionalty, both the pro¡roscd "ARA Modcl Access Act" and the model CaliforrriaStatc Basic Access Act include a signihcant amount of detail rcgarding thc cstablishment and

operation within the statc's judicial systcru of an indcpcudcnt boal'cl rcsporrsible frrL policy-

making ancl the ovcralI administr¿rtion of the type of civil right to counsel progmm detailccl in

the statutc.2t This approach is consistent with the recommendatious of criminal indigent

deferise standards, cncapsulated in the first of the ÁBA Ten Princíples of a Puhlic De/ense

Delivcry S.ystem, which providcs that "(t)hc public defetrse functiou, inclucling the selectiou,

funt{ing, an<l payment of defense counsel, is inctcpenclent" attd aclds that "[t]o safeguard

independence anil to promote efficiency arrd quality of scrviccs, a uonparfisall boar<l shorrld

oversee dcfendcr, assigned couttsel, or coutract systems."'u

5. To tìlc extc¡rt rcquired by a¡rplicable rules of prot'essioual contluct, rcplaccmcnt cotlllsel

rnust be provided in sittrations involving a conflict of interest.

Comnrcntctry

In accorclancc with appticabtc ÁBA Moctel ltules of Professional Concluct2l and

corrmentary to the proposcd¿ABA Model Access Act,"28 Principlc 5 requiles the

appointment of alternate counsel in conflict of interest sitttations, except whet'e a waiver is

obtained as pemrittecl by ttre ABA Model ktles of Prctfessional conduct.

tu NrrTfclnat- CËNTER p6n S't'n1'e Cctun'r's, CutnLir.tNrs rotr [Nvot-ux'l'¡nv CIv¡l CoN4t\,ltrMENT, s¿lprcz uote 14,

Cuiclcliue li4(b).25 Proposctl Ai¡crican Ba¡ Associatiotr Rcpolt wíth Rccotunrendation, "AIIA Mc¡<icl Àcccss Act," supra notc I l, 8-

l 1 ; CALIFORNtA AccESS'r'o Jus'rrce CouvrSSrOr.r'S MoDßL S'rnru'r¡'lnsr F'oncn, S1'41'rì BASlC AcclìSS Ac'l-.

sr.r¡l'c note 5, $tj 501-505.t'; AMERTC^N ß^R ASSOCIAI'lC.rt{, TeN PRINC)pLtjS OI. A PUBLIC DF.FßNSr.l DEt-tvuRY Sl'S1'lilu1, stiT;rz note 18,

PRINCIPI-IJ I. .S¿I¡I ¿rlSO AMERI(ìAN RAR ASSOCIA'I'ION, GTOTO¡V"SBROKËN PROMfSIJ: AMF,RIC]A'S CONTINUIN6 QUESI'

rorl trQUA L Jusl'tctÌ.,r¡rpr¿.¡ note 1 8, 42 -44,2r

,Se¿ Aryl¡iRtcAN IlArì ^ssocrAl'roN,

Moont- Rul-t;s or'.[-Rot'tiìsstoNAI- CoNl]uc'l', I.7, 1.8, i. t0 (2009), at'ailahk al

!¡l-Ur :,ii:lryil¡t b ;¡n ct.,t¡gfu 1¡r1'.¡ r) q2Sll¡]q:sJg_LlttLì-il.28 ltrtrposccl Anrcl.ican Bar Associatiotr Report 'uvith Rccontnrendation, "ÀBA lvloclcl Access Acl.,supra note ll, at

I I Sc¿r ¿¡isa Ci,qU nOnN lA ACCTiSS 1 O Jris'r'tcß Coìul \4lSS tON's Moltri t- S't,t1'Lll'f ì TASK FORCE, S'l'¡''t l [,],rs tc ,A.C:CF.SS

ÃCI',su¡;ru note 5, $ 505(l),7

105 (Revised)6. (laseloatl linlits are establishcd to ensurefhe provision of'cotn¡tetent, etlticirl, aud higlr

quatity reprcsetttr tiou.

Commenlary

Principlc 6 safegua.rcis against the burdcn of cxcessive cascloads having a ltarntÍìrl

inrpact on the quality olpublicty-fuuaeA re¡rrcsentation proviclcd to low-income litigants.2e

NationaL standards and cthical rulcs long have recognizcd the ct'itical importance ofcontrolling r,vorkload when providing repr:cscntation to indigents in both the civil ¿rnd

criminal contcxts.30 Specitically ,Ihc ABA Standards o.f PracÍice for Attorneys RepresenÍing

Paretzls in Alntse and Neglect Cases recluites coutts to "cnsure that attorneys who are

lccciving appointments carry a reasonable caseloa<l that would allow thcm to provide

competent representatiou for each of thoir clicnts."3 ' The ABA Standards of Prctctice frtrLavt),ers Representing Chilclren in Custody Cuses imposes the following aclditional

obligations olr courts:

Courts should control the size of court-appointed caseloads, so that lawyers do nothave so rì1¿uly cases that thcy are unable to meet thesc Standards. If caseloads ofìndividual lawycrs appr:oach or exceecl acceptable lintits, coufts should take one or

more of the following steps: (l ) work with bar a.ncl chilclren's advocacy groups to- incrcaso ihe avaiiabiiiiy of iav,,ycrs; (2) rrrake 1'omrai ùrrangeirrcriis ior ciiiicí

lcpresentation rvith law tìrms or programs providing representation; (3) rerìegotiatc

existing court contracts for child representation; (4) alcrt agency adrninistrators that

their lawyels have excessive caseloacls and ot'der them to establisli proceclttrcs or aplarr to solvc tlie problem; (5) alert stzrte juclicial, cxecutive, and legislative branch

leaders that excessive caseloads jeopardizc thc ability of la'uvycrs to competently

to For an in-dcpth discussion on thc delctclious eflects ofexcessive caseload,s in the orinrinat indigcnt dclense

corìteKt, sc¿ Atøttttc,ru BAtì ÀSsoctAtloN, G¿¡)¡;o¡v'.s Bf{oKsN PRoMlsE: AMElì.tc.t's CONI'INUING QUEsr FoR

EetJ.A,L Jus't'tcl, sripra note 18, at 43 (r'ccornnrencf ing cstablishnre¡ir ancl cnfolceruent of limits on defelrse counsel's

rvolkloacl fol cffectivc implemcntotion of right to oounsel in criminal cases). ,Sce a/so N¡rloN¡L RIcli'r To

CouNsnl CovMrrrne (THri Corus'rr, U'iloN PROJrjcr/Nnrtor'¡¡rt Lncel AID ANI) DtìFBNDER Assoctn'rloN), JusTlcc

DsNI¡:l¡: AMr,.Rrcì¡\,s CoNTtNUtNG NEci-ßcl'ot. Oun CoNsll-ruÎoNAt- Rtcut ttl Cc¡ut'lsuL. 65-70 (2009), availableat http: I ltcpjusticeclorricd,org/.l0 Atur,Rlc¡,N B/,R AssoctATfoN, Sr¡\r,*DARDs FoR I'R.rcrtcE FOR A't"toRNEys REPltnsEN'l lNG PAItEN'ls IN AßtJSf:l

^,ND NÊcLIìcT CASFS, supra note 14, Role of fhe Court 8; ABA (Slicrttru ot' F¡TMILY LAw), Sr^NDARDS oF'

Paecrlcc f'oR L¿\wYtìRs IìEPRESENTINC Ctllt'nnrN tru cus'ronv c^sES' s¡4,'¿1 note l8' 5\ y¡ ¡¡t AtlA srnNn'q'nns op

PRAcncE [.ol{ L,AwyßRS Wrro RßPRESENT CHtLt)t{EN lN Atìusll AND NE(;LBC'I'CASns,.ruprz note 14, Stanctard I-.

Sec also Abel & Livingstol, nt¡tra note 14, aL2; AturDRtc^N tlAR AssocrnlloN, FoRìv1^L OptNloN 06-441, ETHICAL

OulrcnTrttls oF L,A!vyr.lrì.S Wrro RripREsnNt INutctixr CnlulNau DaFENDÀN'lS W¡tfiN ExcESStvl¡ C¡rsrloaDs[NT]:rìFEIìE wl'nr CoMI'tirENT

^ND DILrceNl Rupttusuxr'¡rr-roN (May 13, 2006); ABA'I'¡:w PRINCIPLES ot'A Puul-lc)

DIìFENSE DELIVTìRY Svstlr:vl, .çupra ¡ote 18, PRINcìlPLti 5.lr AvBnlc,lN Bnn Assclc:lRTfoN, S1'.{NDAtìDs r}oR PRACT'I(:rj I,oR A'r'ror(NDYS [{F.PRDSI]NIfN(i I)ARliN'l-s lN AllusE

¡¡¡o NLitit-t c l C^sES, s?lprïl note 14, Rotc of thc Cotrrt 8.

8

7

105 (Revised)reprosent chiklrcn: an<t (6) scek adciitional finding'32

On the criminal sidc, the fifth principle of the ÁBA Ten Principles of cr Public DeJ'ense

Delivety S),sletn obtigatcs counsel to decline appointtnents when his or her workload has

become "s9 largc as to intelfere witlr the rcndcring of quality representation or lead to thc

breach ol; ethical obligations," ancl unctgr no circumstancos shoulcl national caseload

standarcls be exceeded." In 2006, thc ABA issr-red its l.rrst Fonnal Etliics Opinion clctailing

the affirmative obligations of'lawyers who represent indigent crirninal clcfcnclants rvith regard

to ma¡aging excessivc cascloads, Thc opinion statecl uttcqrtivocally that, cousistent with the

ABA lulodet Rules o.f Pro.fessional Conduct, no lawyer may accept new clienLs if his or her

r.vorkloa<l prcvents the provision of competcnt and cliligent re¡rresentation to existing clients;

further, tlie opinion outlinccl the specihc measures_ larvycrs rnust take to custtre ihat they willnot reccivc firrther appointnrcnts cluring this timc.3a

To irnplernent this Principle 6 in accordance rvith cxistlng uatioual stalrdarcls and

ethics rules, a juriscliction's appointing authority shot¡ld set caseload sta¡ldards and

reasonable limits on the nunrber of appointmcnts a particulal'attorney shoulcl acccpt, ancl

attorneys should decline new appoinûneuts whencver theit workloads bccome so excessive

as to pievent them from providìng competent an<l cliligcnt representation to existing clients.3s

Counsel hts tire relevant experience and ability, rcceiives appropriate tralning, isrequir.ed to attend continuing legal educatiotr, atrd is required to fulfill the basic tluties

appropriate for each type of assigned case. Couusel's performâncc is evaluated

,' ABA (Sec'rroru oF FAMtr.y I-Aw), STANDATTDS or. Prì.AcTIcrì I,oR LAWYERS RßPIìËsDNl'lNG CtttLurrnx IN- Cus'loDY

Cases,supra notc 18, {i Vl.D.3r ABA TÈN llntruclpr-Es ot? A PutlLtc DßFËNsE DF.LrvfìRY SYS'ruM, supra note 18, PRINCIPLIì 5. See also On' Rev'

Srn'r., QurnlrrrcA'iloN Sreruo¡rnos ron CouRr-ApporNl'ED COUHsËl-'r'o RlìPlltisENl' FINANCIALI-Y Ët-tGl¡Lr

PERS9NS ¡r'Sr'¡,r'u ExpËNSE, Stan<lard tl (court rule providing that "neithcl tlefcndcr organizatiot.rs nor assigrred

counsel should acoept workloads that, by rcason ol thcir size or cornplexity, intert'ere rvith providing conlpe(ent and

aclequate represcntation or lead to the brcach ofprofessional obligations").3o Auenrc¡.r.r Iì^rì AssocrAïroN, FoRMAL OprNror.l 06-441 , Erutc,qt- OBLIG^TIONS o¡' LnwvEns WHO ITBPRESENT

INDICìENT.CIìIMINAL DËFBND^N.I'S WI,IEN EXCOSSIV[Ì CASI]LOADS IN.I.DRFERE TVITU COI.¡PT:TI]N'I AND DII-ICT,N'T

RBprìDSENT^l'roN (May 13, 2006); .,\BA MoDril Rulcs or PRtxr:sstouat- CoNDUCT, 1.1, 1.2(a), 1.3, 1.4 (2009)'3t Abcl & Livingston, supra îotè 14, at 2; CnLr¡'orNrn Acctiiss'i'o .lUSTlcE CoMMlsslol.ì'S MODIìL Sr',rrurr TasrIioRCrì, 51'^t'0 BAstc A()()rss l]tc't',supru notc 5, $ 505(7): AN,IURICAN BAI{ AssoctAtt<lN, St,twunRt)s FOR

pRACTrcF. pon All'olrNovs Rripuesr.¡¡'ltNc Pnnnrur's tN ABTJSE a¡¡u Ncct-t:cl' C¡.ses, stlpra trotc 14, Rolo of the

Couri 8; AIIA (SFCTTO¡* Clr F-nn¿rly LAw), STANDARDS OF Pnnct'tctl FOR LA\\'YßRS Iì.EPRESF:N'IING CHtlu¡ttix l¡'l

CUSTOOy CÂSBS,.s?/prd uote 18, $ VLD; ABÂ. S'rn¡runrlr)S oF PR^CrlCF. ItoR L,rrvvElts Wtto RI:¡ncsn-Nr Cl{lt.t)RßN

lN ABUSS ¡un N tcu;c r CASBS, .rr4)ra note 14, Standard L. Sec also Nn'rlor,¡Rl- RICìI'11"I'o CouNSiiL C<lvtutLt"l'ctt

(THtìCoNStn'uTroNPRoJFCl'/Nn'noN,uI-ËciALAtD,r¡roDe¡ENt:l:RASSoclATIOÌt),JusTtce D¡¡HIntr: AlvilìRIcA's

Co¡l'r'rNur¡rc NEcLEC'I or" Oun Co*-s'u lu-ltoNAì.. RIcH'r'ro CouNStiL,.tl?¡'a uote 26,192-1q4,202-205; At'¡titttt:nN

RAR ASSOCI^T]OX, GtOroU ',s BRoKtìN Ptto¡¿rs¡: AMERTC^'S cON1'lNt'f N(i QUtist t'O¡t EQUAL JUSl'lCß', sltPra noLe

1.8, at 43 (recourrnending estabtishrne¡rt ancl enärrcenrent of linrits on clefènsc counsel's wolklood 1'ol effectivc

irlplerncn(ation of right ro counsel in crirninal cascs); ABA Ttì.N Pr{f NClPl.liS oF A PuBt-lc DÙFlìNsB f)gt.tvliRv

Svs'trtvt, suprz no{.e 18, I)fìlNCIPLtl 5.

9

105 (Revised)systcrnaticalty for qualitl,, et'tcctivc¡tess ¿rnd ctficiency ¿tccording to natiortally anrl

locally ado¡rtcd standards.

Conmtenlary

Numelous right to counscl statutes, cour[ rules, and national stanclards impose the

type of experience, training, anclcontinuing education requireme-nts, as wcll as the

requirenreit to perform spðcitrc duties, found within Principle 7.36 In adtlition, r.vith respect

to the evaluation of counscl's performancc, this Principle reflects the approach taken by the

pro¡rosed "ABA Moclel Access Act," which requires an inclepenclent board to establish and

¿rdutiuister a system of evaluation of the quality of representation providcd by institutious anct

private attomeys rccciving public funding for this ptlt'pose thlougli thc Model Act.'"

r(' ,Sec Abel & I-ivingston, suprû note 74, at2; ABA Sr¡ruonRDs t:ot{ PR^CTICE poR Art'oRHrivs RtipltusÈtt1'lttc

P¡,rtrinlSrNABUSEnNDNti(ìLt;c't'C¡1sËs,ót?¡'¿rnote I4,ContmentaryfolJasicObligation l,BasicObligafions4,19, 20; ABz\ (SricTror.l on Favn-v Lnw), SrnNDi\RDS otì Pll,{c'llcE FoR L^wYEIìS RDp¡lcse N'l'tNc Ctttl-oREN lt't

Cus'roDY CirSEs, supra note 18, $ VI.Â.7; ABA S'TANDARDS ot I'tìAcrtcE FoR L¡wvtns Wtlo RIìPRESEN'|

CHrLolrcN tN ^DrJSrì.{ND

NEGLucl CASnS, supra notc I4, Standard ll-4,1-2,1-3; NAl'loNAL CouNclL oF JuvENlLÐ

nrun T..nvIIv Coun.r JUDGDS, RIjSoUITCÊ GLIIDF.LINIÌS: IMPROVING COUI{.T PRACI.ICE IN CTIII.II AIIIJSE ^ND

NEGT.NIT

C¡.sris22-23(l9i)-s\. ¿tt:allahleal!itrn:,//wrvrvint:if'ci.olg,'inrailcs/sþtics/<lc:ü41¡ctUUtltçsgtriçlS,.pti!'; NATIoN^L

CEN'IER l.oR S'lnle CouRl's, GurnEl-¡Nns I,oR INVOLUNTARY ClvtL Coplvtt'vl;rur',slq)r'(t note 14, Guicleline El(a),

E I (d), 82, E5; Anrz. Rrr¡. Slnr. ANN. $ 36-537 .Ij (requiring spccific duties of attorncys involvcd in involuntary

com¡iliturent cases); Ark. Sup. Ct. Adruin. Order No. l5 (imposing expcrience, training, continuing lcgal education

r.equire¡rents, as well as thc iequirctncnt to per{orm specifrc cluties, for attorneys represetrting parents or children in

<lependerrcy or ncglect pr.oceedings); Änr. CooE ANr'r. $ 9-27-401(d)(2) (West); 'tËx. ['AM. CoDE ANN. $ 107.003-

107.004 (requiring the cornpletion of ccrtain basic and adclitional dutics olattorncy acl litem for child and atnicus

attorncy); C,qL. W$¡l'. & lNs'r. COoe g 317 (c), (e) (Wcst) (plovidíng casçload ancl training $tarìdards for attorrlcys

for clrii<tren and recluiring the perfonnance of s¡recifìc dtrtics by &ttol'neys); Florì¿{a lndigent Set'vices Advisory

[loart{, Final Repor!: R<¿cr¡mtncnclalions Regarding QualiJìcations, Compensation and Cost Cotttairunent Sh'utegies

.þr Stat<+frutde¿t Due. Process,se¡vices, Iucluding Cour! Re¡torters, Inler¡tt'ctet's and Privute Court-Appointed

Countel,5, l4(2005) ovaìlahlealþ!¡¡r-;//rvrvrvjustic:cirtùrín..cr¡gl¡¡t--!¿l-(r-?()05rt"20Fin¿d9i'Z9Rgilor.LlXlt(r.ecom¡retrdirrg experioncc and training staridards that are mct ot exceeded by statldalds irnposed on counsel in

clepe¡{ency cnses in each judiciat district in Florida); MD. R. CT., tit. I I app. (GulDELINrìS oF ADV0CACY FOR

A'rroRNEys RËpREsENTtNc CHtLnunw rN CINA [Ctttt-uncn lN NEED oF Asslsl'^N(;ri.l nruu lìaln't tio'fPR

ITERMtN^'troN of'P^RtìN'rAL Rlcnrs] AND ADoplroN PRocEItDINcs); Cnr.. WElr'. & I¡'s'l'. Cr:nr: $ 317 (c), (e)

(West) (provicling caseloacl and training standalcls lor attorncys for chitd¡en ancl reqtriring thc petfortnance ofspecific dLrties by attorneys). See also Avt;utc¡N Bnn Ass<tct¡116.r, GIDI0N',s BI{oKuN PRot'¡tse: Av¡nlcn'SCoNt'tNUt^*c QuESll.oR EqttalJust'tcE.,supra note 18, at t4-15 (expcricnccd and trained clefense counsel

necessary for effcctivc inrplcrnentation of right to counscl in criminal cases)i ABA'l'ÉìN PRlNclPLhìs o!'Á PUBLIc

DEF uNs ¡.; Dtir.t vERv S vslRtl, sapra r-rotc I 8, Pntructpt-t'-s 6, 9.17 [rroposed Anrerican I]zu'Assocíation lìcport with Reco¡lmendatiou, "ABA Moclcl Access Act," strpra n<lte I l, at

10. ,S¿¿ ¿r/,ro C^LtFoRNr^ AcìCtiss'to Jusl'tcu CoN.lN4rSSIoN's Mot)El- Srnrurr. TnsK FoRcE, S'r¡rle Bnslc AccF.ss

l.¡cr,su¡tra ¡ofc 5, $ 505(7) (providing lor cstablish¡ncnt of standar-cls forall appoinlcd attorneys (whctliersalariecl

staff frorr ¡o¡-¡rrofìt lcgal scrvices olganiz.ations or priva[c attorneys) strpplying legal represctttation in accordauce

with the act. to ensure that "the quatity ancl quantity of reptescntntion provicletl is strf'ficìent to af'ford clicnts lair and

cqual acccss to justice in a cost-cfficicnt manner."); ABA I)Rf NCIPt,t'.S oF A ST,\1'lì SYs'l t:tr¿ l:ot{ TllE Dnl.tveRY oF

CrvrL I-IìcAr, ArD, PrttNc:tPt-u 3 (Alrg. 2006), availahlc atl0

105 (Revised)fÌ. Couusc[ reccivcs adequate compensal.ion antl is ¡rrovidetl lvitlt the resotlrces llecessâr]r

to provicle e:om¡rctent, ethical :rntì h i gh-qu ality represe¡l ta tio n.

Cotnrnentur¡t

Consistent with national stanclards, Principlc [ì r'ecognizcs that succcssful

implemeutation of a right to counscl in civil legal matters canttot be acconrplished without a

sufhcicnt ilrvestmcllt of'resoul'ccs to compensate attorneys adequately and to provicle thcm

wit[ the rcquisite support services and practical^tools necessaty to dcliver competcnt, etltical,

ancl high-quality repiéseutation to theil clicnts.3s Thc ABA Section of Family Lau, Stcrndards

of Practic'efor [,awyers Representing Children ín Custodv Cases provicles that lawyers

appointed to represent chilclren "are cntitlcrl to ancl should receive adequate and predictablc

compensafion that is based on legal standards gencrally used for determining thc

rcasonahlelress. .." of liees received by attolneys who are privately retairlecl in family law

cases.3o The organized bar arrd judiciary should coorclinate efforts with the state legislatule,

courts, local public clefeuse/civit legat aid progranrs, and civil.iustice system

fi.urclcrs/supporters, to avoid competition among the various sectors of the civil and criminaljr"rstice systcms fbr finite resources and, instcad, secure fundirig sufficient to ensure equal

^ rr 4t,.lusilce ror all.

9. Litigants receive tinicly and aciequaic notice of thcir potcniiai rigirt tc pur^rliciy-Í'undeci

cou¡sel and, once eligibility lbr such counsel has been establishetl, tny waivers of the

right are accepted onty if they have been rnade knorvingly, intelligently, and voluntarily

Cottunentøry

Principle 9 rcquires that individuals unable to afford counscl bc notifrecl of their lightto publicly-fun<led counsel in a timely and adeçtate fashion. Moreover, this Principle

b!qr.]?l!¡t)yjrt 4!ì!_(.g_rg49gÀtscrvrcct/$l.a i¿i/aLircsoufcefìcn[cr¡'rlorvnloadsits4gi¡llDliuç-Uilgi.td!l ABA ]'tt'tPtUNCtpLßS On a PtlgltC DEFBNSE DELMìRY SYS'I'Elrl,stl¡rr'¿ note 18, Pnt¡lCtplU 10.rsS¿¿A,bel&Livingston, supra.note14,at3:'ABA(Sr:crtouonFnvuvl-nw),STaNuaRI)soFPltÀC]'lcllFORl,Awygts IIEpRESßN*TING Cntr,nnn¡r tN Cusl'oDy CASES, s¿lprr¡ note I8, $ VI.C; ABA STANDARDS oF PR^cìrlcE tìol{

[.A.wytìtìS Wrro Reput:seN'r'CutLoneN IN AI]usE ¿tNu Neclnct C¡rsris,.s¿rlrra note 14, Standarcl J-i: NnTtor:lnL

COUNCIL oF JUVËNf LB AND FAMILY CotInT: JuocIIS, RESOURCìì CUIDELIN.ES: IMPROVING COURT PR¿\C].ICE IN CHII-I>

AIìusE AND N trlcl-Ec,T CAStis, supr! ûote 33,at22) Net'lol'l¡.t- CUN'rÉn FoR ST^TE CotlRts, GutogltNns poR

lNVoL.uNl'^Ry Crvr¡- Covt,rt-rMr.;N't, s¿{rr¿¿ note 14, Cuidcline E4(c). See also ABA GIDt:oN's BROKEN PI(OMrsfi:

Av elucn's Cc¡¡1'rNu lr.lc Q uEsr FoR EerJ^ r., Just tcc, srr¿rra note I 8, at 4l (defensc cortnscl t'cquires adequ:rte

conr¡rensation and rcsoirrces to provicle quality reltlesentati<ln ncccssary for ef[ective itripletrtcntation ofrigttt to

couisel in criniinal cascs); ABA TF.N I,RrNCrpr,ES oF A PI-Jtìt.tc DuFcNSlì DELIvERv SvS't'n*t,.supra n<¡te 18.

PrìrNcrPLrì [ì.re ABA (SECTIoN ot Fl,MlLy Lew), STnnoAIì.DS otì PRACTICE ¡cltt l,¡lvvltus RI:PRrÌsL:NTt¡{c CHILDIìIìN IN Cusl'oDY

Cnsts, .ìupra notc ltì, $ Vl.C.ott z\nrerican Bar.Associatipn's Task Force on Access to Civil Justice, llcporl to the Hott,se oJ Dclegutes, ,supra n<>te

3 atl5;AIlAPnlNcrpt-ESoF^St'A]-IjSysTtìMrìOR'tHEI)nllVt::nYOt,CtVlL.[,tic¿LA¡rr,.srtpranoLe34,PtttNctt'ln9;AB^ 'l'rìN pRINCTPLES or,

^ PuuLIC f)E,FtiNSE, Dnurvtttv SYS t'tlvt,.szrpra note 18, PRlr-*clPl.tì 8.

U

105 (Revised)prolribits thc acccptauce of rvaivers of tl'rc civil right to counse I unlcss they rneet the shictrequircments cstirblishect by thc II.S. Sr"rprernc Court f'or proper waivers otthc SixtltAmendment right to counsel in crirninal cascs; that is, the waiver nrust be nracìe knowingly,intclligcntly, anci voluntarily aftcr thc dcfcnclant has beeu aclviscd olÌ his or her right tocounsel,at The NC,IC Guidelines Jòr Involunlat), Civi! Commitmenl contains similarlanguagc, requiring courts to detennine thert any waivcr of appointeclcotursel in involutttarycolnr¡itment procccclings is'oclear', knowirrg, and inte[igent,"a2

10. A system is established that ensures that publicly-funded counscl is provideclthroughout the implementirrg jurisdictiort in a manner that ndltct'es to the st¿ltd¿rrdsestnblished by these basic Pri¡rciplcs ancl is consistcnt with tlte "Anrerican BarAssociation Principtes of a Stafe Systen-r f'or the Delivery of Civil Legal Aid."

Comtttentary

1'he goal of thesc Principles, in kecping with the rccommenclations of nationalstanclards, is at a minilnuru to establish a statewide systeur fbr providing counsel toin<lividuats in certain high-priority civil proceedings who are not able to afforcl an attoruey,a3

TIle state system shor¡ld bc operated in coniunction with thc systems that are established to

fi.rnd and provide civil legal aicl throughout the state and to help achieve the ABA Principlesof a Siate System ior tirc Ðeiivcry of Civii Lcgai Airi.aa Principic i 0 also rccognizes an,j

suppolts the fact that local jurisdictions nìay wish to provi<le broader access to counsel withintheir borders than can be accomplished at the state lcvel,

n' Jolln*un v. Zelbst, 304 U.S. 458,464 ( 1938).o' Nertc)Nrr.l- Cc.rlr¡n FoR S1'.\'f c Cclutt'rs, Ct..rn>rilt¡l-is f orì IN VoLUN'tA RY CtvtL CoM M rt M tlN'l , t;Lrpra note 14,

(ìuiclelinc E4(a).o3 Abel & Livingston, .ç¿.pr¿r notc 14, aL3; C^.LIt,oRNI^ AccESs ro Jusrt(:E CoMN4lsstoN's MODEL S-tA]'uTE'l'AsK

Force, S'tA'rD BASrc Acc[ss Ac]r',su¡tra note 5, $505; AMßRlcAN BAR AssoctATtoN,I]RINCIPLES ot'^ STA'Í'E

Syst'EN,f FoR THE DBf-lvßl{y ot CtvtL I.nc¡,t Altr, supra ftole 34, PRÍNCTPI-E 6; ARA Srnruo,tnns t)t'Pltec:ttce rott[-nrvr,¡ns WHo Repnr:seNT Crur.DREN rN ABUSE ¡.No Nec;lEc'L Cases, srrpr'ø note 14, Standard G-2, J-4. See also

AMÊRIc^N Bau Assocl¡r'¡'tON, G¡o¿oNT BnoxtN PROMrsE: Auritttcn's CoN'rtNulNc Quesr l,on EQUÁ.L Jus'rlcË,

s¿lp,r¿ note 18, at42-43 (statewide shucturc for delivery ol public defense scrvices cnsures unif-olmity in qualityneccssary for cfÏective irnplerncntation of criurinal r:ight to counsel); ABA 'l'EN Pnt¡*clpt-tls oI' A PuuLlo DE}"ßNSE

DI;t-lvERy Svst'EM, sr;¡irz note 18, PntNctpt-u 2.oo S"c gn,rorr,/þ Altr:utcnx R¡rn AssoclerroN, PRINc)tpLF.s or A St'¡r'tg Sysrgpt l()R Tf tll Deltve ny ol'ClvlL I-rìGAL

AtD, su¡tra notc 34.tz

Amicus Olson v Olson - American Bar Association

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