Expanding Gideon: The Right to Indigent Civil Representation

 

I.  INTRODUCTION 

      This paper summarizes the expansion of indigent parties’ “right to counsel” in civil cases.  While the constitutional right to counsel in criminal cases does not apply in most civil cases, some states and localities have created limited rights to counsel in high-stakes civil cases (e.g. evictions, foreclosures, unemployment benefits, child custody, etc.).  This paper assesses progress in New York and other states in this area, including actions by other states to create a “civil Gideon” – a right to counsel in high-stakes civil cases analogous to the criminal right to counsel.  This paper will map out arguments for and against establishing such a right, as well as likely implications. 

      Civil legal service (“CLS”) programs nationwide target the volatile mix of pro se (unrepresented) litigants appearing in high-stakes civil actions where opposing parties tend to be sophisticated and well-represented (e.g. banks, landlords).  For most CLS programs, eligibility depends on indigency (e.g. income below 120% of federal poverty levels); others make counsel available based exclusively on a proceeding’s subject matter (e.g. certain unemployment benefits proceedings). 

      Starting with Gideon v. Wainwright in 1963, the U.S. Supreme Court has required states to provide effective legal representation to indigent criminal defendants facing imprisonment.1  Due process protections attach when the state deprives any person of “life, liberty or property,” which requires paid counsel when an indigent defendant risks the loss of “liberty” by imprisonment.2  Likewise, Congress requires that government provide representation to any indigent facing civil forfeiture of a primary home.3   

      While federal law does not convey a right to representation in other civil actions, supporters of a “civil Gideon” right to civil counsel argue that high-stakes foreclosures, evictions, consumer credit, child support, custody and paternity actions risk fundamental “liberty” and “property” interests, and thus should trigger due process rights to counsel. 

Courts have not yet ruled broadly on “civil Gideon,” but states and localities have partly accepted this premise and enacted statutes granting limited rights to civil counsel. 
 

      II.  NEW YORK STATE RIGHTS TO INDIGENT CIVIL REPRESENTATION

 

      The state guarantees indigent civil representation in a variety of areas, mainly in family law, guardianship and certain unemployment insurance cases.   

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    1. Family law representations

 

      State law affords paid counsel for indigent litigants in certain proceedings where children are at risk or custody is at stake: 

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    • Parental rights.  Respondents and children in cases terminating parental rights are entitled to counsel.  Respondents in paternity proceedings are also entitled to counsel;4 petitioners, however, often are not because the state is not impairing or imposing on them core constitutional rights or duties.  
    • Child protection and permanency.  Parents and guardians have a right to counsel in permanency proceedings for children freed for adoption, as well as custody, foster care, child protective and child abuse proceedings.5  Children have law guardians in abuse and neglect actions, foster care placement and review proceedings, and person in need of supervision (“PINS”) cases.6  Judges also may appoint a law guardian for children in custody, visitation, and adoption proceedings.7  
    • Child visitation.  Non-custodial parents and grandparents have a right to counsel in seeking visitation of a child in foster care and in cases where a government social services agency is assuming custody of a child.8  
    • Domestic violence.  Parties have a right to counsel in Family Court civil proceedings arising from violence among members of a family or household, including unmarried couples without children.9

 

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    1. Guardianships and Mental Health Proceedings

 

      The state grants counsel in civil cases where “liberty” and autonomy are at stake: 

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    • Adult protective proceedings. Where the state seeks protective custody of adults allegedly unable to protect themselves from abuse, neglect or other hazardous situations, these adults have a right to counsel.10 

 

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    1. Economic Cases 
    • Mental health facility residents.  Residents of mental health facilities are entitled to counsel in actions to protect them from abuse or mistreatment.11 

      In most cases, there is no right to counsel in benefit cases. New Yorkers denied unemployment benefits who get them on appeal to the Unemployment Insurance Appeal Board can receive representation to protect their benefits for a further appeal. Fees in such cases, capped at the low rate of $500, are paid by the state.12

    III.  IMPORTANT CASES LACKING RIGHTS TO CIVIL REPRESENTATION

 

      There are many other high-stakes civil cases affecting rights to housing, marital assets, public benefits and other economic rights cases that do not trigger a statutory right to counsel. In many of these cases, indigents appear pro se or with whatever level of CLS support is available based on agency funding.  In most, cases CLS programs are overwhelmed by demand and can only serve a small portion of the need.   

      A.  Housing Cases Without Rights to Representation 

      Indigent parties often appear without counsel in housing cases, including: 

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    • Foreclosures, including workouts and other settlements;
    • Evictions;
    • Habitability claims, including improvement in basic housing conditions;
    • Discrimination on the basis of race and other illegal grounds;
    • Housing denials in public housing and section 8 programs;
    • Building condemnation; and
    • Challenges to denial of emergency shelter.13  

      In these cases, CLS providers are overwhelmed relative to need.  In 2006, the Legal Aid Society of New York represented 15,000 low-income tenants facing eviction but turned away 90,000 others.  Legal Services for New York and Legal Services NYC advise 10,000 households but can only assist 21% of eligible tenants seeking help.14  

      B.  Family Cases Without Rights to Representation 

      There remains no right to counsel in non-custodial divorce or asset-distribution matrimonial cases.  In Orange, Putnam and Westchester counties, the courts, with assistance from Legal Services of the Hudson Valley and Putnam Legal Aid Society, matrimonial attorneys can apply for a fee award if one is available.15 

      C.  Economic and Public Benefit Cases Without Rights of Representation 

      The right to counsel does not exist in welfare cases.  As of May 2008, more than one million New York households relied in whole or in part on public assistance, food stamp benefits, veteran assistance, emergency assistance for families with dependent children, etc.16  The Office of Temporary and Disability Assistance receives 200,000 requests for “fair hearings” to contest the action or inaction of local social services districts. While there are no valid statistics available as to the number of individuals who go unrepresented in these proceedings, the number is clearly quite high. 

      Even in cases involving unemployment benefits, there is still no right to counsel in initial proceedings to contest denial of benefits.  Right to counsel only exists where the party received a favorable decision from the Unemployment Board and another party seeks overturn the decision on appeal.  Even in this situation, counsel is rarely assigned due to the $500 cap on reimbursement for appointed counsel.  The Department of Labor does not mention this right to counsel on its webpage, so few people know of it.  

      IV.  THE PROMISE AND FAILURES OF NEW YORK LAW 

      Existing law invites courts to assign counsel in these civil cases, but in practice the lack of sufficient CLS funding and structure make this promises illusive at best.   

      Under current law, New York courts may appoint counsel for low-income parties in all civil cases.17  State law specifically invites courts to appoint counsel to represent military members unable to appear in an eviction proceeding.18  Federal law also allows state courts to appoint counsel to “a person alleging a discriminatory housing practice or a person against whom such a practice is alleged” in state or federal court.19   

      In practice, however, courts rarely if ever assign counsel in civil cases because there is no way to pay the cost.20  For indigent criminal representation, a complex statutory scheme allocates funding responsibility between the state, counties and New York City, and requires the Judiciary to provide some level of oversight.21  By contrast, for CLS programs there is no mandate, no funding stream, no standards to determine who should receive mandatory counsel in most instances,22 and no agency responsible for the quality, oversight and distribution of services.  Absent structure and funding, the courts generally formally enforce a request for representation. 

  As of this writing, we are unaware of any state-level legislation that would create a broad state-level right to representation in these cases. 

      In 2007, NYC Councilmembers Rosie Mendez and Alan Gerson offered a bill requiring city-funded counsel for elderly low-income tenants in housing cases.  A veto-proof majority reportedly supports the bill, as does 90 housing, bar, senior and other advocacy groups.  The Independent Budget Office, however, does not yet support the bill, which therefore remains pending at this writing.23 

      V.   EXPANDING RIGHTS IN OTHER JURISDICTIONS 

      Several states and other nations provide free civil counsel for the indigent: 

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    • California’s Civil Gideon.  In October 2009 – at the height of that state’s fiscal crisis – California enacted legislation providing free legal counsel in eviction, foreclosure, domestic abuse, predatory lending, child custody, disability and elder abuse cases for persons 200% below the poverty rate.   The law, once fully implemented, will be funded by a $10 increase in some court fees on a pilot-project basis, with a variety of delivery vehicles jointly proposed by provider coalitions and the state court system.24 
    • Ohio’s Foreclosure Program.  Ohio homeowners can delay foreclosure by demanding and receiving court-appointed counsel, and Judges can demand law firm representation on behalf of Ohio homeowners.  
    • Washington Disability Allowance. Washington law authorizes the court to appoint counsel as a reasonable accommodation for disabled civil litigants.  
    • International Initiatives.  The European Convention on Human Rights recognizes broad indigent access to attorneys in civil cases.25  Each nation has its own system of administration: most use a means test.  South Africa likewise provides free legal counsel for the indigent in certain civil cases.26    

 

      VI.  ARGUMENTS FOR AND AGAINST CIVIL GIDEON EXPANSION OF CLS 

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    1. Arguments in favor.  CLS expansions, including a right to counsel in high-stakes civil cases, would be sound policy for a variety of reasons: 
    • Rights and justice.  Litigants often can’t fully claim (or even know) their rights without lawyers.  Statutes grant many procedural and substantive rights in housing, income, family law and other cases that shape New Yorkers’ lives and livelihoods, but these rights mean little or nothing if they are not claimed.  This is especially true when litigants are not sophisticated or face well-represented opponents.  For example:
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      • Two-thirds of New York adults receiving public assistance have not completed high school; 10% in NYC lack a ninth-grade education.27  
      • In cases affecting welfare or public housing, many appellants do not know that the hearing officer is a state employee and the agency is not representing the appellant’s interests.   
      • In mortgage foreclosure cases, illegal practices are increasingly common and it can be extremely difficult to prove the fraudulent practices without the involvement of a lawyer.
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    • Economic efficiency.  CLS services save money for governments and directly expand the economy.  CLS providers return to government and the economy 125% of the funding for their operations: IOLA-supported providers recouped $200 million in 2007 alone.  For instance: 

      • Representations to keep persons in homes reduce homelessness services and other county/NYC social service spending:28 NYC estimates that for each dollar spent on indigent representation in eviction proceedings, it saves four dollars in homelessness costs.29

    

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      • Representations in federal benefits cases, child support and consumer credit cases funnel money into the state and keep parties off public assistance.  Expanding rights to counsel could increase these trends and their economic benefits. 
    • Fundamental fairness.  In family law cases in which respondents have publicly-paid counsel (e.g. termination of parental rights), it can be unfair and traumatic for petitioners not to receive similar rights.  (This inequality arises because only the respondent risks the losses of rights that trigger due process access to counsel.)

 

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    • Judicial efficiency.  California enacted its own Civil Gideon program in part because the pro se (self represented) system was clogging that state’s courts, especially given the difficult economy’s spike in CLS-eligible cases (e.g. foreclosures, evictions, family law cases).  The California Legislature determined that greater investments in CLS were necessary to return the state court system to greater efficiency.  As existing law invites courts to appoint counsel (even if there are no standards or funds), it also can be reversible abuse of discretion for courts to deny counsel in high-stakes cases.30 
    • State unclean hands.  The legal reason that there is no constitutional “Civil Gideon” in private housing, family law and related civil actions is that a private party rather than the state seeks to deprive someone of liberty or property rights, so there is no due process right to counsel.  However, courts long recognized that by operating courts that resolve disputes, the state is not a mere bystander.  If due process keeps state courts from enforcing restrictive covenants, the argument goes, then state courts should not be able to deprive anyone of property without implicating constitutional protections, including the right to counsel.

 
 
 

      B.  Arguments Against Civil Gideon:  Most arguments against a Gideon-style affirmative right to counsel in civil cases revolve around cost. 

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    • Overall cost.  There is no valid estimate at this time of the total cost of a Gideon-style right to counsel in all civil cases that might be suitable for it, or even estimates for discrete case types.  If indigent criminal representation is any guide, the cost could exceed $250 million/year. 
    • Local impacts.  NYC and counties support expanded CLS to reduce social service costs and improve government efficiency.  They oppose, however, any fiscal mandate to provide these services: many already bristle at the increasing costs of providing criminal legal services. 
    • Frivolous defenses; impact on business.  Banks, landlords and some private counsel may oppose subsidies that help low-income parties make frivolous claims that drag out proceedings and increase litigation costs.  Such impacts could have direct effects on banks (access to credit) and landlords (rental prices, procedures, etc.). 
    • Suing the state.  Because CLS clients have legal disputes with a state or local government, a CLS right could empower more clients to sue the state: in essence, the state would be paying to sue itself.  This quirk has led federal law to strictly limit the lawsuits that CLS-providers supported with federal funds can bring – a restraint that has become controversial.