California Recognizes Civil Right to Counsel in Pilot Program

October 13, 2009

The week of October 12, 2009, California Governor Schwarznegger signed into law the historic Sargent Shriver Civil Counsel Act (California AB 590), sponsored by Assemblyman Mike Feuer, a Los Angeles Democrat.  The Shriver law recognizes a civil right to counsel in a two-year pilot project that will provide poor individuals a lawyer in certain high stakes cases, anticipated to include domestic violence claims, child custody cases, and housing matters.

The pilot project is slated to start in 2011, and the funding will be generated by a $10 set-aside of fees already in place on certain court services, including those for issuing a writ to enforce an order, recording or registering a license or certificate, issuing an order of sale, and filing and entering an award under the state's workers' compensation law.

California is the first state to create a civil right to counsel program of this kind and the legislation's passage comes three years after the American Bar Association adopted a resolution urging federal and state governments to expand and create a right to counsel in civil cases where "basic human needs are at stake."

In dual editorials issued while the bill was on Governor Schwarzenegger's desk awaiting signature, the NY Times and L.A. Times urged its passage.  On October 17th, the LA Times summarized the need for this "unprecedented civil court experiment," and the bill's import, writing:  

California is embarking on an unprecedented civil court experiment to pay for attorneys to represent poor litigants who find themselves battling powerful adversaries in vital matters affecting their livelihoods and families.

The program is the first in the nation to recognize a right to representation in key civil cases and provide it for people fighting eviction, loss of child custody, domestic abuse or neglect of the elderly or disabled.

Advocates for the poor say the law, which Gov. Arnold Schwarzenegger signed this week, levels the legal playing field and gives underprivileged litigants a better shot at attaining justice against unscrupulous landlords, abusive spouses, predatory lenders and other foes . . . .

'How ironic that you can be arrested for stealing a small amount of food -- a box of Twinkies from a convenience store -- and you're entitled to counsel. But if your house is on the line, or your child is on the line, or you're being abused in a domestic relationship, you don't have the same right to counsel,' said Assemblyman Mike Feuer, the Los Angeles Democrat who sponsored the bill.

California's pilot project is the first in the nation to create a right of 'Civil Gideon' and will be closely watched by access-to-justice advocates across the country, say legal analysts who expect the presence of lawyers to ease court congestion.

As conceived, the program will fund public interest law groups, where lawyers typically earn salaries more on the level of teachers than their well-paid colleagues from big law firms.  Such legal aid groups are overwhelmed by the needs of the indigent.  At least 70% of those with civil law problems are turned away for lack of funds, experts say. Groups receiving the money will be chosen by the Judicial Council, and the pilot program will be reevaluated to determine whether it should be continued beyond its 2017 funding guarantee . . . .

Three years ago, the American Bar Assn. called on states to provide a right to counsel in civil cases in which 'basic human needs' are at stake.  Since then, nine states have made moves to afford limited civil representation, but California will be the first to extend that to a broad array of family law and social justice issues . . . .

Over the four-plus decades since the Gideon ruling, legal researchers have documented that when litigants have lawyers in civil cases, more just and cost-effective outcomes are reached.

For example, women seeking restraining orders against abusive partners were successful 83% of the time when they had legal representation, compared with 32% without an attorney, according to a 2003 report by University of Baltimore law professor Jane C. Murphy.  Giving civil litigants the legal advice they need to work out a settlement ahead of their court dates also cuts down on post-judgment appeals and the costly social services incurred when parents lose their rights simply because they don't know how to navigate the legal system, analysts say.

'In abuse-and-neglect cases, if parents don't have representation, children spend more time in foster care, and that's very expensive for the state,' said Laura K. Abel, deputy director of the Justice Program at the Brennan Center for Justice at New York University School of Law.'