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The Existing Civil Right to Counsel Infrastructure

A discussion of the ways in which to use existing legal infrastructure to expand the right to counsel in civil cases appeared in The Judges’ Journal.

  • Laura Abel
Published: December 4, 2008

 

 

 

 

 

Ran in the Fall 2008 issue of The Judges’ Journal.
Click here to down­load PDF.

In August 2006 the ABA House of Deleg­ates unan­im­ously passed a reso­lu­tion endors­ing a civil right to coun­sel in cases concern­ing basic human needs.  The resol­u­tion was, in the words of former ABA Pres­id­ent Michael Greco, “historic.”  At the same time, the report accom­pa­ny­ing the resol­u­tion made clear that it was offer­ing “a care­ful, incre­mental approach . . . limited to those cases where the most basic of human needs are at stake.”

The resol­u­tion is incre­mental in anoth­er way, too: it builds on the exist­ing civil right to coun­sel infra­struc­ture already in place through­out the coun­try. Virtu­ally every juris­dic­tion in the coun­try has a right to coun­sel in at least some types of civil proceed­ings (includ­ing proceed­ings concern­ing family law matters, invol­un­­tary commit­ment, medical treat­ment, and many other issues). The rights are set out in hundreds of state and federal laws and court rules. Some imple­ment court deci­­sions estab­lish­ing a consti­tu­tional right to coun­sel in one or more types of pro­ceed­ings.  Others imple­ment federal laws requir­ing the provi­sion of coun­sel to spe­­cific types of indi­vidu­als, such as members of the milit­ary or Native Amer­ican chil­dren facing removal from their parents. Still others flow from a legis­lature’s belief that provid­ing coun­sel in a partic­u­lar type of case is good social policy. For example, recent changes strength­en­ing the role of appoin­ted coun­sel for parents in abuse and neglect proceed­ings in Arkan­sas and Texas appar­ently resul­ted from a desire to ensure that chil­dren were not sent to foster care unne­ces­sar­ily.

These exist­ing civil-right-to-coun­sel laws ease the way towards fulfill­ment of the ABA’s resol­u­tion in several ways. First, the fact that there already exists a civil right to coun­sel in some cases concern­ing basic human needs means that the task of fulfilling the ABA’s right-to-coun­sel resol­u­tion is not as large as it would other­wise be. In our first section below, we compare the exist­ing civil right-to-coun­sel stat­utes and court rules to the scope of the civil right to coun­sel outlined in the ABA resol­u­tion. It is clear from this analysis that, while no juris­dic­tion has a right to coun­sel in more than a few types of cases concern­ing basic human needs, no juris­dic­tion has to start from scratch, either.

Second, we can learn from exist­ing civil right-to-coun­sel schemes about how best to create new schemes to fulfill the ABA resol­u­tion. Some lessons drawn from exist­ing civil right-to-coun­sel schemes are discussed below in our second section.

Cases Where a State Stat­ute or Court Rule Provides for a Right to Coun­sel

Child Custody
The ABA resol­u­tion calls for a civil right to coun­sel in cases where any one of five types of basic human needs are at stake: shel­ter, susten­ance, safety, health, or child custody.  Of those, child custody is the category with the greatest number of exist­ing civil right-to-coun­sel stat­utes. This is in part because federal law requires that states receiv­ing federal child abuse preven­tion and treat­ment fund­ing appoint a repres­ent­at­ive for chil­dren involved in abuse or neglect pro­ceed­ings.  Thus, virtu­ally all states have stat­utes guar­an­tee­ing either the right to an attor­ney or the right to a guard­ian ad litem for chil­dren in abuse and neglect cases.  Many, but not all, states also have a stat­ute guar­an­tee­ing the right to coun­­sel for parents in state-initi­ated termin­a­­tion-of-parental-rights proceed­ings, and some have a stat­ute guar­an­tee­ing the right for parents in abuse and neglect proceed­ings as well.

Federal law also requires states to provide coun­sel for the parent of an Indian child in abuse, neglect, and termi­n­a­tion-of-parental-rights proceed­ings.  A number of states have incor­por­ated that require­ment into their stat­utes.

Other categor­ies of child custody mat­ters in which stat­utes guar­an­tee a right to coun­sel for one or more parties include:

  • private peti­tions to termin­ate parental rights or for adop­tion;
  • patern­ity proceed­ings;
  • child custody, support, and visit­a­­tion proceed­ings;
  • divorces and annul­ments; and
  • proceed­ings regard­ing visit­a­tion or perman­ency for chil­dren in fos­ter care.

Health
Being able to obtain access to or to refuse medical treat­ment is another subject of some right-to-coun­sel stat­utes. For example, some stat­utes guar­an­tee coun­­sel to a minor seek­ing a judi­cial bypass of a require­ment of parental noti­fic­a­tion or consent before under­go­ing an abor­­tion.  Other stat­utes guar­an­tee the right to coun­sel for people who are the subject of an invol­un­tary ster­il­iz­a­tion proceed­ing.  Connecti­cut guar­an­tees the right to coun­sel for people who are the subject of an invol­un­tary vaccin­a­tion order.  Finally, Indi­ana provides a right to coun­sel for the subject of a peti­tion for the invol­un­tary release of mental health records.

Safety
As discussed above, all states provide some sort of repres­ent­a­tion to chil­dren who are the subject of an abuse or neglect pro­ceed­ing.  A 2005 Flor­ida law provides that abused, neglected, or aban­doned noncit­izen chil­dren whom a state court determ­ines may be eligible for special immig­rant juven­ile status under federal immig­ra­tion law have a right to coun­sel for the purpose of peti­tion­ing the federal govern­ment for special immig­rant juven­ile status.

New York appears to be the only juris­dic­tion provid­ing coun­sel as a right to people seek­ing protec­tion from domestic viol­ence, although a few other states give courts the discre­tion to appoint coun­sel for the peti­tioner in such cases.

Shel­ter and Susten­ance
There are few laws creat­ing a right to coun­sel in cases concern­ing shel­ter or susten­ance.

One standout is the Civil Asset Forfeit­ure Reform Act of 2000, which provides a federal right to coun­sel for low-income homeown­ers who face civil forfeit­ure of their primary resid­ence.  New York appears to have the only right to coun­sel in any sort of case concern­ing susten­ance: this state has a stat­ute provid­ing a right to coun­sel on appeal for unem­ploy­ment insur­ance claimants who won before the Unem­ploy­ment Insur­ance Appeals Board and are defend­ing that decision against their employ­er’s appeal.

Other
Civil cases concern­ing phys­ical liberty are outside the scope of the ABA resol­u­tion, perhaps because it is already gener­ally accep­ted as a matter of consti­tu­tional law that there should be a right to coun­sel in such cases.  Nonethe­less, it is worth noting that many, but not all, states provide a right to coun­sel for people facing incar­cer­a­tion as the result of civil contempt charges.  Many state stat­utes guar­an­tee the right to coun­sel for people facing invol­un­tary insti­tu­tion­al­iz­a­tion for mental illness or alco­hol or drug intox­ic­a­tion and for people facing disease quar­ant­ine.  Alabama also guar­an­tees coun­sel for anyone seek­ing to commit another person invol­un­tar­ily.  A number of stat­utes provide a right to coun­sel for adults who are the subject of a peti­tion for invol­un­tary protect­ive services or guard­i­an­ship. 

A few other mandat­ory right-to-coun­sel stat­utes fall into the follow­ing categor­ies:

  • Civil Arrest or Impris­on­ment.  North Caro­lina provides a right to coun­sel for people who are the subject of a peti­tion seek­ing their impris­on­ment for a debt or their civil arrest.
  • Indi­vidual under Disab­il­ity to Sue.  Mary­land provides a right to coun­sel for people under a disab­il­ity to sue.
  • Members of the Milit­ary.  The fed­eral Service­mem­bers Civil Relief Act requires all states to provide coun­­sel to a milit­ary member who is a defend­ant in a civil case and has not appeared in the case.  A number of states have incor­por­ated this require­­ment into their laws.

The Admin­is­tra­tion of the Civil Right to Coun­sel

While some exist­ing civil right-to-coun­sel regimes provide a high qual­ity of rep­resent­a­tion, others are widely criti­cized as capable of provid­ing repres­ent­a­tion in name only.

To address this prob­lem the ABA, the National Center for State Courts, and other entit­ies have issued national stan­d­ards for the repres­ent­a­tion of chil­dren in custody and child abuse cases, of parents in abuse and neglect cases, and of people subject to invol­un­tary commit­ment.  Although guidelines do not yet exist for the perform­ance of other types of mandat­ed civil repres­ent­a­tion, the exist­ing guide­lines teach that, for a civil right-to-coun­sel scheme to be effect­ive, appoin­ted coun­sel must have the follow­ing char­ac­ter­ist­ics:

  • adequate exper­i­ence and train­ing;
  • assigned to fulfill partic­u­lar duties;
  • given only as many cases as they can compet­ently handle;
  • func­tion inde­pend­ently of the appoint­ing author­ity;
  • be adequately compensated;
  • be appoin­ted early enough in a partic­u­lar proceed­ing; and
  • the appoint­ment system must be uniform through­out a partic­u­lar state.

We discuss each of these require­ments in turn.

In order to provide compet­ent repre­sent­a­tion with respect to most types of mandated cases, the attor­neys appoin­ted need to have relev­ant exper­i­ence and train­ing.  Appoin­ted attor­neys should fulfill certain basic duties, such as inter­­view­ing clients, although the specific duties will vary with case type.  However, virtu­ally none of the civil right-to-coun­sel stat­utes or court rules requires exper­i­ence, train­ing, or the fulfill­ment of any partic­u­lar duties.

Excep­tions in some states are nota­ble. An Arizona stat­ute spells out specific tasks for attor­neys appoin­ted to repres­ent people who are the subject of an invol­un­­tary commit­ment peti­tion.  An Arkan­sas court rule requires that attor­neys appoint­ed to repres­ent parents or chil­dren in depend­ency and neglect proceed­ings have exper­i­ence and train­ing, that they receive continu­ing legal educa­tion in specified topics, and that they complete specific duties, such as review­ing relev­ant docu­­ments, attend­ing court hear­ings, meet­ing with clients, and filing appro­pri­ate plead­ings.  In Flor­ida, each judi­cial district imposes its own stand­ards for coun­sel in depend­ency cases, and all such stand­ards must meet or exceed train­ing and exper­i­ence stand­ards that the Flor­ida Indi­gent Services Advis­ory Board suggests.  A number of states impose stand­ards on coun­sel for chil­dren in abuse and neglect cases but appar­ently do not impose stan­d­ards on coun­sel for the parents or in other types of cases.

Courts should not assign appoin­ted attor­neys more cases than the attor­neys can handle compet­ently.  However, very few right-to-coun­sel stat­utes or court rules provide any case­load limits or guidelines. One excep­tion is an Oregon court rule provid­ing that “[n]either defender orga­n­iz­a­tions nor assigned coun­sel should accept work­loads that, by reason of their size or complex­ity, inter­fere with provid­ing compet­ent and adequate rep­resent­a­tion or lead to the breach of pro­fes­sional oblig­a­tions.”

Appoin­ted coun­sel should be inde­pendent of the court.  Comment­at­ors gener­ally agree that someone other than the presid­ing judge should appoint coun­­sel to ensure that coun­sel’s desire to be appoin­ted in other cases does not influ­ence coun­sel’s repres­ent­a­tion of clients.  However, very few civil right-to-coun­sel stat­utes provide any guidelines about how judges should appoint coun­sel. Judges presid­ing over the cases are free to appoint the attor­neys in those cases, and, except in juris­dic­tions where the public defender is respons­ible for repres­ent­ing people enti­tled to coun­sel in civil cases, that seems to be what gener­ally happens.

Coun­sel must be adequately com­pensated.  Many civil right-to-coun­sel stat­utes do not address compens­a­tion beyond requir­ing that it be “reas­on­able.”  In prac­tice, fund­ing falls short of need almost every­where.  Many of the stat­utes that do specify how much coun­sel should be paid provide for an hourly rate of between $50 and $75, which is far below what most attor­neys in private prac­tice receive.  Moreover, the fees are often capped at an extremely low rate.  Other stat­utes expressly permit or require courts to appoint uncom­pensated coun­sel.  Too often, the clients suffer because attor­neys must main­tain a very high case­load to make ends meet.

Coun­sel need to be appoin­ted early enough to be able to repres­ent and con­­sult with the client during crucial stages of the proceed­ings.  Some right-to-coun­sel stat­utes require that this happen, and some require the court to grant an adjourn­­ment for this to happen. For example, a Montana stat­ute requires that coun­sel be appoin­ted for a parent or guard­ian “imme­di­ately” follow­ing the filing of a peti­tion seek­ing removal or place­ment of a child or the termin­a­tion of parental rights.  A New York stat­ute provides that parties who have the right to coun­sel in family court also have “the right to have an adjourn­ment to confer with coun­sel.”  However, many right-to-coun­sel stat­utes are silent about this import­ant issue.

Where possible, coun­sel should be provided in a uniform manner through­out a state.  Lack of a uniform system can lead to indi­vidual judges or county admin­is­trat­ors determ­in­ing who should get coun­sel on an ad hoc basis. Even when indi­vidual counties have writ­ten policies, the differ­ences between those policies can lead to vastly differ­ent access to coun­sel in differ­ent counties, despite the pres­ence of an applic­able statewide law guar­an­tee­ing this right.

However, unified state systems to admin­is­ter the right to coun­sel are very rare.  In most states, indi­vidual counties are respons­ible for admin­is­ter­ing and often fund­ing the right-to-coun­sel sys­tem. Often the counties them­selves have no uniform proced­ures.  Thus, how the right to coun­sel is imple­men­ted tends to vary not only by state but also by county and by judge.  For example, in Nevada’s Clark County, a public defender office special­iz­ing in family law handles fam­ily law matters, with contract attor­neys hand­ling only those cases that the spe­­cial public defender cannot handle.  In the rest of the state, however, the gen­eral public defend­er’s office or court-appoin­ted contract attor­neys handle family law matters.

Alaska and Montana are excep­tions to the general lack of uniform­ity. Alaska oper­ates a statewide public defender office and an Office of Public Advocacy, both repres­ent­ing civil and crim­inal liti­g­ants with a right to coun­sel.  After a major lawsuit, Montana created a state­wide public defend­er’s office to repre­sent low-income people in both civil and crim­inal matters.

The exist­ing civil-right-to-coun­sel infra­struc­ture is far from perfect, and per­haps the ABA resol­u­tion will help strength­en it in some respect. At a minimum, the resol­u­tion under­scores the import­ance of the right to coun­sel in civil matters when a litigant’s basic human needs are at risk. Any strategy, whether incre­mental or global, that advances the right to legal repres­ent­a­tion in these import­ant cases is a signi­fic­ant step toward the goal of access to justice for all.