Extention of Gideon v. Wainwright by Justin Steele

            For the past couple weeks I have been thinking about Gideon v. Wainwright and the Sixth Amendment right to counsel.   In Gideon, a man was arrested, for public intoxication and for allegedly stealing the money from a jukebox.  The Florida court would not give him counsel despite the fact that he had no money to afford counsel.  During that time, the states were not required to give indigent defendants the assistance of counsel.  Because of this, the state of Florida had determined they would only provide assistance of counsel when a party was unable to afford one and it was a capital offense.  Eventually, after certiorari was granted, the United States Supreme Court determined that the Sixth Amendment Right to Counsel was going to be applicable to the states by the Fourteenth Amendment due process clause.   While Gideon forced the states to provide assistance of counsel to insolvent defendants in criminal matters, it does not require the state to provide insolvent individuals assistance of counsel in civil matters.

            States are not required to provide assistance of counsel in any kind of civil proceeding.  However, in 2006, the ABA’s Standing Committee on Legal Aid and Indigent Defendants (SCLAID) drafted basic principles for when the civil right to counsel should exist.  As a result, many states have either tracked the ABA’s basic principles exactly, or adopted a large portion of it.  These basic principles recognized a governmental obligation to fund and supply effective legal representation to all poor persons involved in the type of high stakes proceedings within the civil justice system that place them at risk of losing their homes, custody of their children, protection from actual or threatened violence, access to basic health care, their sole source of financial support, or other fundamental necessities of life. 

            Civil right to counsel is obviously a hard thing for a lot of people to get behind because of the obvious costs that will be put onto the public.  To fix this, California in 2009 enacted legislation that added a ten dollar charge to certain post judgment fees that was going on in the state to fund a civil right to counsel pilot program.  While I think that an additional fee and pilot program is a fine option for the state of California, other states have been trying different ideas. For instance, Tennessee does not provide any kind of civil right to counsel but it does suggest that attorneys within the state report their pro bono hours that they do each year.  While Tennessee’s method does not provide a guaranteed right to counsel, it gives attorneys an incentive to help people that do not have the ability to pay.  Some states have gone even further and changed the should do pro bono work to the must do a set amount of hours each year in pro bono work. 

            I think that an extension of Gideon v. Wainright to certain high risk civil cases is approaching quickly.  Other than the SCLAID, there are several organizations that are lobbying, writing amicus briefs, and organizing to force the state legislatures to look into civil right to counsel, such as, National Coalition for a Civil Right to Counsel (NCCRC), which has no set base and Committee for Indigent Representation and Civil Legal Equality (CIRCLE) which, is based at Seattle University.   This will be an interesting development in the law and I look forward to seeing how it plays out.