PJC In The News

Daily Record article: "ABA calls on U.S., states to fund right to counsel in some civil cases"

ABA calls on U.S., states to fund right to counsel in some civil cases

August 11, 2006
By CYNTHIA DI PASQUALE,
Daily Record Legal Affair

Maryland’s proponents of a right to counsel in civil cases are smiling this week.
The American Bar Association voted unanimously at its annual meeting in Hawaii on a resolution calling on federal and state governments to guarantee legal counsel in certain civil matters as a right for low-income people.

“I think it’ll help,” said Robert J. Rhudy, former head of the Maryland Legal Services Corp. “It’ll certainly help for the largest, most influential, oldest body of lawyers in the country to say, with real evidence, that if you don’t have a lawyer, you’re at a disadvantage.”

The ABA’s non-binding resolution recommends guaranteed government-funded services for adversarial proceedings involving shelter, sustenance, safety, health or child custody matters. (It excepts those in which a lawyer would take the case on a contingency basis.)

The resolution does not propose legislative language, nor does it advise individual jurisdictions on how to manage the mandated services.

Locally, the resolution will probably have the greatest impact as an educational tool for legislators and as a message to the courts on where much of the legal community stands, according to Debra Gardner, legal director at the Public Justice Center.

“Our first step in Maryland is still to ask the courts to recognize the right to counsel under the Maryland Constitution,” she said. “And the ABA statement just says to them this is an important issue to access to justice. … If the state does recognize the right and a determination of a way to implement the right, the ABA has something to say about [doing] that in a categorical way rather than case-to-case.”

The Public Justice Center has tried for a number of years to secure an appellate decision guaranteeing the right to civil counsel in the state.

It managed to bring a test case, Frase v. Barnhart, before the Court of Appeals in 2003. However, a majority of the court declined to reach the issue of whether Deborah Frase had the right to counsel in her child-custody dispute.

Since then, the center has continued to search for a second test case. It has also spearheaded an effort to expand the right in other states through the National Coalition for a Civil Right to Counsel.

Implementation vs. goals

Although a court-based strategy prevails in Maryland, Wilhelm H. Joseph Jr., executive director of the Legal Aid Bureau Inc., acknowledged that the legislature will ultimately become involved if courts grant the right.

“Someone has to come up with ways to finance it,” he said. “So, eventually, there is a component that has to be legislative.”

Considerations for the legislature will be balancing a budget that already includes funding for the courts and the public defender’s office. The courts will receive $372.9 million this fiscal year; the public defender, $83.9 million.

Legal service providers in Maryland, which handle the bulk of civil matters for poor people, currently receive about $45 million annually from combined sources, including those offered by the Maryland Legal Services Corp., Executive Director Susan Erlichman said in the spring. It would probably cost at least $15 million more to fund a mandate, although that is a conservative estimate.

Katherine Kelly-Howard, legislative committee chair of the Maryland Multi-Housing Association Inc., noted that there doesn’t seem to be the same government commitment to funding civil services as there was for publicly funded criminal defense when the Supreme Court established that right in 1963. Kelly is also secretary of the Maryland State Bar Association and a former president of the Bar Association of Baltimore City.
“The ABA’s recommendations are commendable, but I think that they are painted with a very broad brush,” she said. “The implementation is going to be a far different process than coming up with the goals."

To read more about the resolution click here.

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