Crime and Courts: Supreme Court rejects court-appointed lawyers for poor in civil cases

The court's decision at Thursday's administrative conference was in response to a petition by Legal Action of Wisconsin asking the court to adopt "civil Gideon," which takes its name from the landmark 1963 case Gideon vs. Wainright, which established the right to counsel for criminal defendants.

Civil Gideon advocates sought to establish a similar right in civil court for low-income people litigating matters involving basic needs like shelter, food, clothing, heat, medical care, child custody and safety.

Legal Action filed the petition, with 1,320 supporting signatures, in September 2010.

John Ebbot, executive director for Legal Action, says he was "deeply disappointed" by the court's decision.

"I'm concerned that this pilot project is going to be an excuse to wait for that to be concluded before courts start to appoint counsel," he says.

No state has enacted a comprehensive civil Gideon policy, but a few states have done pilot projects. Last year California embarked on an $11 million project. 

While rejecting Legal Action's petition, the court also instructed the Wisconsin Access to Justice Commission, created by the Supreme Court, to set about devising the pilot project to weigh the effectiveness of appointing lawyers.

Ebbot says he working with the commission, but the funding will be tight. Legal Action is trying to get a $100,000 grant from the State Bar to cover the costs.

Ebbot says it's unclear what the pilot project will look like. Possibilities include: having a county appoint lawyers and comparing it with one that doesn't; keeping the project within one county with some judges assigning attorneys while others don't; or having a single judge appoint attorneys in some cases but not in others. 

"Right now it's pretty much in the air," Ebbot says.

Advocates see civil Gideon as a way to ensure that the rights of the poor are upheld. But the high court pointed to the cost as the main reason for rejecting the petition.

Legal Action has estimated the cost at roughly $56 million a year, but advocates say that would be offset by savings in other social services spending.

Ebbot says those savings would be realized in a number of ways, from saving the cost of incarceration in instances where domestic violence can be avoided through court action, to saving food and shelter costs for families that can defend themselves from eviction or foreclosure.

In addition, he says, courts would save costs because cases with attorneys tend to move much more quickly and efficiently through the system.

On Oct. 4 the high court held a public hearing on the proposal that attracted numerous speakers, most of them in favor. The State Bar of Wisconsin's Board of Governors last year voted to support the concept in principle.

While denying the petition, the Supreme Court reiterated its commitment to providing access to legal counsel for the poor and is reaching out to law schools, the State Bar, advocacy groups and others to find attorneys willing to take on cases for indigent litigants for free.

But groups like Legal Action and Wisconsin Judicare, the two publically funded agencies that provide legal aid to the poor, have seen huge funding cuts from both the state and federal governments in recent months, reducing their ability to provide attorneys.

Ebbot says the court system will never be able to find enough attorneys willing and able to take cases for free to meet the need.

"It's just not going to happen," he says.

Another avenue suggested by those who feel civil Gideon would be too expensive is to step up efforts to help poor people represent themselves more effectively. Currently, self-represented people are causing a glut of cases.

"The (self-represented litigant) crisis continues to significantly burden the court system, particularly given current economic circumstances," wrote Lonnie Wolf, president of the Wisconsin Clerks of Circuit Association in a Dec. 20 letter to Supreme Court Chief Justice Shirley Abrahamson.

Wolf described self-represented litigants, which she refers to as SRLs, as "confused, frustrated and lost."

"Because of their lack of legal knowledge, SRLs are continually looking to court staff to provide answers to their questions and resolutions to their problems," she wrote.

But Wolf objected to civil Gideon because of the potential costs to counties, which could be responsible for paying for the lawyers. Instead, she suggested stepping up self-help and legal advice resources.

Ebbot says that's unrealistic. Many self-represented litigants have little education, language barriers or mental problems.

"And we're asking them to know the law, the procedures, the evidence rules and try their own cases," Ebbot says. "The only thing that's going to provide justice is to provide lawyers for people. And when they're too poor to afford attorneys, it's a public duty to provide attorneys."