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Essay: In opposition to a civil Gideon

Each year, the Minnesota Supreme Court Historical Society — in conjunction with the Minnesota State Bar’s Civil Litigation Section and the American Board of Trial Advocates — sponsors an essay contest that is open to all high school seniors in the state. Students compete for up to nine $500 scholarships. In May 2014, five students, who answered the following question, received scholarships:

Does equal access to justice for persons who cannot afford legal representation require a civil right to counsel in Minnesota under additional circumstances? If not, please state why. If so, what would those circumstances be?

This is one of those essays:

By Cade Zacharias

The 1963 trial of Gideon v. Wainwright ensured the constitutional guarantee of legal counsel in all criminal proceedings, requiring that all state courts assign counsel if the defendant cannot afford it. It was a landmark decision. There has yet to be an equivalent ruling in civil proceedings, and not all civil cases are guaranteed counsel. I contend that no such ruling should be made. Equal access to justice for those financially incapable does not require a civil right to counsel. The idea of a civil Gideon is both logistically and financially unrealistic, creating a program easily abused. It would empower the government even further, giving the public a key role in private affairs. There is a more effective alternative of using private legal aid societies and looking at our own laws that restrict access to justice. Providing justice to all is imperative, but it does not require the use of a civil Gideon.

A civil Gideon program would be a logistical nightmare. First, examine the state of a comparable system, the criminal Gideon. Recently, a Missouri county’s public defender office could not accept criminal cases on the grounds that its caseload already exceeded 395 cases per lawyer per year, and a Tennessee office handled 10,000 misdemeanor cases in a year with a mere six attorneys (Siskind). These kinds of caseloads cannot possibly provide sufficient representation. The New York Civil Liberties Union claims that “…its public defenders are so overwhelmed that they routinely fail to investigate their cases or make basic legal arguments” (Siskind). This swamped system would be extended and exacerbated in a civil Gideon system.

Basic economics tell us that decreasing the price of a commodity increases the demand for it. Case in point, making civil counsel free ensures that there will be more of it. Worse yet, free civil counsel will be rendered vulnerable to untold abuse in the form of frivolous and unmeritorious cases. Consider the case of Khadijah Farmer in New York City. A restaurant bouncer mistook her for a man in the ladies room after hearing a complaint from a likewise confused customer and removed her from the restaurant. The restaurant attempted to make amends for the misunderstanding, but three lawyers took the case on pro bono instead. They sued the small business for $35,000 when the misunderstanding could have easily been resolved without the judicial system (Frank 3). Such a case is not an outlier. An Ohio pro se litigant was able to live in his home without rent for eleven years by using meritless litigation (Frank 2). No-cost litigation has been used for everything from demanding that taxpayers pay for a convicted murderer’s sex-change operation to fighting for a triple murderer’s right to shower shoes (Frank 3). If civil counsel is free to all, the amount of meritless cases will only increase.

Beyond logistics, the civil Gideon is financially impossible. Look at the budget issues of current systems. The California State Bar’s 2007 report found $394-million of unfunded civil legal services. The California court system has had 30 percent of its resources cut over the last three years, reducing its budget from $3.5 billion to $350 million (Siskind). This has caused the layoff of 40 percent of its employees, which will result in a five-year wait for lawsuits to see a trial (Siskind). Doug Kays, executive director of Legal Services of Southern Missouri claims that, “As funding is right now, we couldn’t handle a civil right to counsel” (qtd. in Toohey). The ABA House of Delegates urges states to provide legal counsel as a matter of right at public expense, but they have not calculated what that expense is or how it is to be paid.

Some European nations recognize a civil right to counsel, so a parallel to cost can be estimated in this manner. The government spends $2.25 annually per capita on civil litigation in the United States while England spends $32.00 (Schneider). In order to match Britain’s legal services for the poor, the United States would have to spend about $10 billion annually (Schneider). If states are struggling to afford their current budgets, how will they pay for a new legal entitlement program? Lawrence J. Siskind writes, “In an ideal economic climate, Civil Gideon would be problematic. In today’s financial emergency, it is a non-starter.” The only way to fund such a program would be to significantly raise taxes, affecting much of the populace but aiding only a fraction. It would be a frivolous misuse of government resources.

A civil Gideon lends too much power to the government. The criminal Gideon decision of the Sixth Amendment is meant to limit the government’s ability to prosecute someone criminally. That isn’t the case in civil litigation. Ted Frank says, “…civil Gideon will use taxpayer-funded attorneys to litigate cases against private citizens, aggrandizing rather than limiting government power” (qtd. in Toohey 5). Why should the government have a place in a private dispute between neighbors? A citizen should not be forced to contend with the resources of the government in a purely private affair.

There are alternatives to the civil Gideon that will provide access to justice. Legal aid societies exist to give justice to those who cannot afford it. They have scarce resources, but that is exactly what makes them effective. A legal aid society must screen its cases, only accepting those they see as meritorious. In a civil Gideon program, this screening process is removed (Siskind). A pro bono attorney using scarce resources signals to the judge that the litigant thought the claim was meritorious. If everyone gets an attorney, then there is no easy way to show a case is legitimate (Frank 2). To ensure access to justice, these legal societies need only be encouraged. A government entitlement program would be unnecessary. Other alternatives involve examining our own laws. “If the goal is to improve access to civil justice, it seems strange that we are looking first to the taxpayers and not to the rules within our own legal system that restrict access to justice” (Frank 4). Ted Frank presents the option of a loser pays rule. A private lawyer would gladly take a meritorious case in such a system as they would not have to bear the financial burden in a victory. A lawyer would take a case no matter what the income of the defendant or plaintiff was, increasing access to justice for all (Frank 4). It seems that the alternatives are altogether more appealing than a civil Gideon.

The civil Gideon is not the answer to the problem of access to justice. It would create a clogged justice system, but not before crippling it financially. Frivolous lawsuits would fill the courts with this new access to free legal services. The government need not extend itself into private civil affairs; this issue can be solved with other methods. Access to justice can and will be improved; however, it will not be done with the civil Gideon.

Works Cited

Frank, Ted. “The Trouble with the Civil Gideon Movement.” Outlook, 3, (August 2008): 1-6. Web. 29 Jan. 2014.

Schneider, Mary Deutsch. “Trumpeting Civil Gideon.” Bench & Bar of Minnesota, 63.4., Apr. 2006. Web. 29. Jan. 2014.

Siskind, Lawrence J. “Civil Gideon: An Idea Whose Time Should Not Come.” American Thinker Aug. 2011: n. pag. Web. 29 Jan. 2014.

Toohey, Gary. “A Civil Right to Counsel: Inevitable or Unrealistic?” Precedent, 7.2 (2013): 24-30. Web. 29 Jan. 2014.

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