It is fundamental to the economic system

The Law Man

Jim Rockefeller

 

Dear Readers,

We rely so much on our justice

system as an adjunct to our economic system. Yet, we make virtually no attempt

to make sure that civil litigants have an attorney.

As you all probably know, where your liberty is at stake,

the state has to provide you with an attorney. This dates back to 1963 in the

famous case of Gideon v. Wainwright.

Mr. Gideon was indigent and asked for an attorney to be

appointed to represent him during his trial in a Florida prosecution. At the

time, counsel was provided to indigent criminal defendants in the federal

courts, but the United States Supreme Court had addressed what was required in

state courts. Gideon lost his argument, lost his trial (representing himself),

and eventually sought relief through a federal “Habeas” petition, drafting the

appeal papers himself.

Gideon eventually won his argument and, since 1963, states have had to supply

attorneys to indigent defendants in criminal cases.

Ironically, this can sometimes create some unintended

inequities. Sometimes, an accused can be too poor to hire an attorney and not

poor enough to justify a court-appointed attorney. Still, despite some

complaints from government functionaries over cost, this landmark ruling has

worked pretty well – Georgia had some “bobbles” in some counties until the

legislature required  state-funded

public defender offices.

The idea that everyone is entitled to counsel was truly

revolutionary. Many had been convicted of crimes they did not commit for lack

of someone to defend them. 

Then, in 1981, the United States Supreme Court revisited the

issue of right to court-appointed counsel in the context to a parental

termination hearing. Abby Gail Lassiter was convicted of murder and, as a

result, the Department of Social Services (North Carolina) sought to terminate

Ms. Lassiter’s parental rights. She complained that she had need of a

state-paid attorney to help her fight the State’s attempt to take her child

from her.

Unlike Gideon, though, Lassiter lost her argument. The

United States Supreme Court did not completely reject the idea that the

termination of parental rights is a such a constitutionally loaded issue that a

court appointed attorney should be made available to indigent parents. And, in

fact, it is pretty much unheard of to have someone have their parental rights

terminated in a state-initiated proceeding without court-appointed counsel

being made available. However, the Court ruled there is no blanket right to an

attorney in a termination proceeding.

In the meantime, in 1974, Congress responded to concerns

about indigent litigants being harmed in civil litigation by passing

legislation to establish “Legal Services Corporation, Inc.” (LSC) as a

non-profit parent organization for local offices like, in Georgia, the Georgia

Legal Services office in Macon.

LSC gets funding from Congress, but also from a brilliant

idea to have interest from attorney’s trust funds be paid into each State’s

Legal Services agency.

Unfortunately, LSC worked just a little too well. It was perceived as an

activist organization that was aggressively trying to right civil wrongs, as

opposed to just helping out litigants. Subsequent litigation trimmed LSC’s

power and reach, leaving it to provide indigent representation to victims of

domestic violence, limited divorce actions, housing cases, some consumer

litigation, government benefits cases, and some assistance for military

families. And, with this agenda, it is so poorly funded it can only help out a

small percentage of those in need.

When times are tough, like in the current recession, the

hole in indigent assistance becomes more vivid.

All over the country homes are being taken from families in

foreclosures or they are being forced from rentals in eviction proceedings.

Families are also deteriorating and in need of legal assistance to help them go

through divorce. Yet, they have to figure their way through the legal system on

their own.

Doesn’t quite seem fair, now, does it?

Our civil legal system is fundamental to our economic

system. If we don’t make sure that everyone receives a fair shake, justice will

become just a mirage and faith in its fairness will be undermined. Something to

think about.

 

Local attorney Jim Rockefeller owns the Rockefeller Law

Center and is a former Houston Co. Chief Assistant District Attorney, and a

former Miami Prosecutor. Visit www.rockefellerlawcenter.com to submit

confidential legal questions, and to review former articles and  Frequently Asked Questions.