Summary of Civil Gideon Symposium, 10/04/07

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1 Summary of Civil Gideon Symposium, 10/04/07 Welcome and Introductions MBA President David White thanked those involved with planning the conference and briefly reviewed the history of the ABA resolution on Civil Gideon. He said many tasks lie ahead, including figuring out which basic human needs are not being met and the difficult issue of funding. A blueprint for Massachusetts is needed, using existing structures to search for answers. In Massachusetts, we are on the road but much work needs to be done. There are no false illusions. BBA President Tony Doniger thanked David and the MBA for cosponsoring the event. He reported that many lawyers and judges do not understand the concept of a Civil Gideon. This symposium is just the first in a series of educational events. He described Massachusetts as beyond debating whether the civil right to counsel is a good idea. He appointed the BBA Task Force on the Civil Right to Counsel and charged it with addressing the issue of how to implement such a right. It will consider the extent to which legislation, litigation, model projects in specific courts or areas are called for. He hopes the task force will provide direction for making this goal a reality in the Commonwealth. Opening Remarks Northeastern University School of Law Professor David Hall began by noting that history is constantly being made, How different things would be if there had been no such case as Gideon vs Wainwright. How many people would be wrongly arrested or dead? He urged the audience to make history. David described how he grew to understand that rights given to people are meaningless if they have no ability to enforce those rights. It calls into question the integrity of the justice system. Civil Gideon is an opportunity to make things right. There will be many objections and concerns, but we have answers and we need not get stuck. This is a watershed moment. Why Civil Gideon Now? Past ABA President Michael Greco speaking on videotape, asserted that it is the responsibility of lawyers to create equal access to justice. This

2 should not be an empty promise. We need new solutions for old problems of access to health benefits, family law matters and housing. The Lassiter case should be overturned. Gaps in Access to Justice in Massachusetts Chief Justice Wilkins (ret.) discussed the Access to Justice Commission s work. Four hearings were held. Witnesses identified barriers to justice in such fields as housing, domestic violence, youth, immigration and consumer law. The Commission submitted a report which will be released shortly. Among 45 recommendations in its report, the Commission recommends increased funding for legal services, increased pro bono, training of lay advocates, new statutory mandates or judicial authority, unbundling and ghostwriting. CJ Wilkins asked whether the term Civil Gideon is too narrow. A legislative bill or a court rule may be more viable than a constitutionally -based case decision. Perhaps the group should consider providing legal services before people need to go to court. Aren t there occasions when a lawyer is not available but an experienced advocate can do as well? Indeed many types of legal assistance short of an attorney can help out. CJ Wilkins gave examples of types of cases where attorneys are not now provided civil contempt proceedings where a party is threatened with incarceration, DYS proceedings to revoke a conditional grant of liberty (like parole) and certain child custody matters in which DSS is involved. During the hearings the Commissioners heard that even where there is a mandate to appoint an attorney, there are instances when it does not happen. CJ Wilkins closed his remarks by asking how to coordinate the efforts of the BBA, MBA and the Access to Justice Commission. What Exists in Massachusetts Today and How Do We Move Forward? Michael Dsida, Deputy Chief Counsel for CPCS s Children And Family Law Program, talked about the areas in Massachusetts in which counsel is already mandated (e.g. CHINS, care and protection cases, truancy, runaways and Rogers cases. CPCS has 35 attorneys and 7 social workers on staff but the vast majority of the work is done by 800 private attorneys

3 When the legislature created the program they mandated, in addition to billing, audit and oversight divisions, an important support system which includes: a. Performance standards detailed expectations for attorneys b. Required training substantive law and trial skills training c. A well developed mentoring system d. A certification system e. Continuing education available through regional coordinators f. Twelve regional coordinators g. Providing advice on individual cases through the coordinators and over the phone and h. A complaint investigation arm which follows up on allegations Michael suggested that Civil Gideon would need a similar foundation, whether or not a staff model is used. The cost of the CPCS civil system is approximately $50 million of the $180 million CPCS budget. He next turned to times when a right to counsel exists for a child as in CHINS cases but the parent has no right to counsel. A care and protection case is being argued before the SJC this week that asserts that a parent should be provided counsel. Michael is a strong supporter of expanding a civil right to counsel and believes that the CPCS experience provides useful lessons. Where do we go from here? New England Law Professor Russell Engler offered 7 steps but prefaced his remarks with cautions to take into consideration such as impact on existing structures, cost and identifying the most important needs. Russell called for an overall three prong approach: (1) revisiting the roles of judges, clerks, court procedures and suggested reviewing the new judicial guidelines; (2) using every form of legal assistance short of counsel such as hotlines, unbundling, pro se clerks, lawyer for the day - 3 -

4 and technology and measuring how each affects outcomes; and (3) establishing a right to counsel in cases where only counsel will help. He asked the task force to consider all three prongs of his approach. He then outlined his seven steps. Step 1: Think about the areas of basic need where counsel may be necessary to achieve a just outcome: health, safety, shelter, sustenance and custody. Step 2: Think about the types of cases in which counsel makes a difference. In considering what we know about the value of having counsel in certain types of cases, Russell reviewed about 80 to 100 reports this summer and found two consensus points. First, power matters. The greater the power imbalance, the greater the need for counsel. Power includes differences between the parties but it also includes who the substantive law favors, who has the easier procedural role and the like. Second, it isn't enough to have just any advocate. An expert advocate matters. The studies show that the two areas with the greatest power imbalance are housing and debt. Step 3: Put the information derived from Steps one and two together. Step 4: Look for a consensus on where the need is greatest. He mentioned custody cases in which only one party is represented, custody cases involving domestic violence and housing cases involving the elderly. Step 5: Collect basic assessment data concerning the number of cases in each of the categories in which a right to counsel is under consideration. Step 6: Analyze and maximize available resources. When considering resource issues, it is not appropriate to compare the cost of full representation to the cost of steps such as self-help assistance when nothing less than full representation will insure appropriate access to justice. We must also always consider the cost of inaction, such as homelessness. Step 7: Consider how to proceed, whether it is via CPCS, MLAC. legal services programs, etc. One factor to consider is how easy a proposed program will be to administer

5 Russell suggested that the Task Force look for situations that involve basic human needs, in which lawyers can make a significant difference. The many stakeholders in such situations should work together to find consensus about just when counsel is most essential to achieving a just result. Then the Task Force should decide how to proceed, including whether to obtain funding for a pilot project. Discussion Much of the discussion had to do with the importance of successful coordination of efforts among the BBA, MBA and the Commission. Hon. Jay Bliztman said it was also time to coordinate the Juvenile and Probate Courts concerns. Andy Scherer, the Executive Director and President of Legal Services for New York City, reported on a special state bar committee in New York. They believe the public needs to be educated about the importance of a civil right to counsel before it will support legislative action to expand the right. The Committee plans to write a white paper to start a conversation, broaden the conversation, and then host a statewide bar, bench and advocacy group conference in March 2008 They plan to tell real stories to get the message out. Prepared by Jayne Tyrrell

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