State gives poor a new legal right

California is embarking on an unprecedented civil court experiment to pay for attorneys to represent poor litigants who find themselves battling powerful adversaries in vital matters affecting their livelihoods and families.

The program is the first in the nation to recognize a right to representation in key civil cases and provide it for people fighting eviction, loss of child custody, domestic abuse or neglect of the elderly or disabled.

Advocates for the poor say the law, which Gov. Arnold Schwarzenegger signed this week, levels the legal playing field and gives underprivileged litigants a better shot at attaining justice against unscrupulous landlords, abusive spouses, predatory lenders and other foes.

Although some analysts worry that it could swell state court dockets or eat up resources better spent on other needs of the poor, the pilot project that won bipartisan endorsement in the state Assembly will be financed by a $10 increase in court fees for prevailing parties.

Anybody confronted with criminal charges has a constitutional right to an attorney, as set out in the landmark Supreme Court decision in Gideon vs. Wainwright in 1963. But such a right does not apply in civil court, and the majority of citizens fighting what can be life-altering civil actions now attempt to handle their cases without professional guidance.

An estimated 4 million people seek to represent themselves in California in civil matters each year, the state Judicial Council estimates, not because they want to but because they can’t afford to hire a lawyer.

“How ironic that you can be arrested for stealing a small amount of food -- a box of Twinkies from a convenience store -- and you’re entitled to counsel. But if your house is on the line, or your child is on the line, or you’re being abused in a domestic relationship, you don’t have the same right to counsel,” said Assemblyman Mike Feuer, the Los Angeles Democrat who sponsored the bill.

California’s pilot project is the first in the nation to create a right of “Civil Gideon” and will be closely watched by access-to-justice advocates across the country, say legal analysts who expect the presence of lawyers to ease court congestion.

As conceived, the program will fund public interest law groups, where lawyers typically earn salaries more on the level of teachers than their well-paid colleagues from big law firms. Such legal aid groups are overwhelmed by the needs of the indigent. At least 70% of those with civil law problems are turned away for lack of funds, experts say. Groups receiving the money will be chosen by the Judicial Council, and the pilot program will be reevaluated to determine whether it should be continued beyond its 2017 funding guarantee.

“The great thing about this is that local courts and local legal aid programs will team up and provide local solutions,” said Julia R. Wilson, executive director of the Legal Aid Assn. of California.

Some legal analysts, however, see the project as a misplaced priority, especially given the persistent shortcomings in a criminal justice system many say is increasingly plagued by instances of wrongful conviction.

“I think it is of considerable doubt that this is the best use of scarce resources on behalf of the poor,” said Lawrence Rosenthal, a Chapman University professor of civil rights law, arguing that the tens of millions to be devoted to civil case representation would be better spent on law enforcement, quality day care or lead paint eradication in low-income communities. “There are a lot of questions that nobody asks when this kind of bill gets passed, because everyone is too busy applauding that more money is going to be paid to lawyers.”

Three years ago, the American Bar Assn. called on states to provide a right to counsel in civil cases in which “basic human needs” are at stake. Since then, nine states have made moves to afford limited civil representation, but California will be the first to extend that to a broad array of family law and social justice issues.

“A lot of states have moved forward bit by bit. What is noteworthy about the California situation is that the proposed pilot projects are in a lot of the core areas people have been pushing for, like foreclosure and landlord-tenant disputes,” said Russell Engler, a professor at New England Law in Boston.

Over the four-plus decades since the Gideon ruling, legal researchers have documented that when litigants have lawyers in civil cases, more just and cost-effective outcomes are reached.

For example, women seeking restraining orders against abusive partners were successful 83% of the time when they had legal representation, compared with 32% without an attorney, according to a 2003 report by University of Baltimore law professor Jane C. Murphy. Giving civil litigants the legal advice they need to work out a settlement ahead of their court dates also cuts down on post-judgment appeals and the costly social services incurred when parents lose their rights simply because they don’t know how to navigate the legal system, analysts say.

“In abuse-and-neglect cases, if parents don’t have representation, children spend more time in foster care, and that’s very expensive for the state,” said Laura K. Abel, deputy director of the Justice Program at the Brennan Center for Justice at New York University School of Law.

The project gives hope to the legions of unrepresented civil litigants such as Angela Rhoden, 31, who said she was forced to leave her job in Atlanta earlier this year to come to Los Angeles after the father of her 10-year-old son seized the boy during a visit here and refused to return him.

“When I came to California, I didn’t have legal representation, nor could I afford it. I didn’t even have a job at the time,” said the mother, whose case was recently taken up by the Legal Aid Foundation of Los Angeles.

“To a certain extent, you know your rights,” she said. “But if you have a lawyer to speak on your behalf, the court just takes you more seriously.”

Irma Green, an ailing 62-year-old surviving on $890 a month in disability benefits, said she would have been unable to fight off an eviction notice from her landlord in South L.A. if she hadn’t had an attorney represent her for free.

“I can’t tell you how bad it feels when you’re sick and you’re a senior citizen and they’re kicking you out of your home,” she said, crediting the intervention of Neighborhood Legal Services with preventing her from becoming homeless.

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90%

Percent of litigants in domestic violence cases currently appearing without counsel

85%

Percent of litigants in child support cases currently appearing without counsel

83%

Success rate in obtaining a restraining order for women with representation

32%

Success rate in obtaining a restraining order for women without representation

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Sources: Judicial Council of California; Assembly Bill 590; “Engaging With the State: The Growing Reliance on Lawyers and Judges to Protect Battered Women,” by Jane C. Murphy