Tag Archives: Civil Gideon

Another Victory for Civil Gideon

Due process rights recently took another step forward as Hawai’i joined the overwhelming majority of states that automatically appoint counsel for indigent parents in child welfare proceedings.  On January 6th, the Hawai’i Supreme Court held unanimously that indigent parents have a constitutional right to legal counsel in cases where the state seeks to remove children from their parents’ home and place them into the foster care system. 

Under Massachusetts law, legal counsel must be appointed within 14 days of a petition filed for care and protection proceedings.  These are difficult cases in which a juvenile court judge must decide what is in the best interest of the child.  The judge determines whether a child has been or is at risk of serious abuse or neglect by a parent or guardian, whether the guardian is fit to care for the child, and who will have custody.   

The ruling in Hawai’i came in the case of In The Interest Of TM, in which the Department of Human Services (DHS) tried to take custody of a child from the petitioner.  The petitioner was not granted counsel until 19 months into proceedings terminating her parental rights.  The Hawai’i Supreme Court held that the Family Court abused its discretion by failing to appoint counsel earlier, noting that the delay did not give the petitioner a fair chance to defend herself due to the complex legal issues at hand and the significance of the proceedings.  Furthermore, the Court noted that the petitioner’s behavior improved significantly after the appointment of an attorney – she started making positive progress in her personal and home life, in large part because she was better able to understand what she needed to do in order to have a chance at custody of her child.   

When a state doesn’t require and subsidize legal counsel, the alternative is often pro se litigants who are at a major disadvantage at achieving justice.  The stakes are high in these cases and everyone should be represented by an attorney. 

 

Don’t forget to mark your calendars on Thursday, January 30th for the 15th annual Walk to the Hill.  This event, where 650 lawyers speak with legislators and staffers on the impact of civil legal aid funding in Massachusetts, is one of the largest of its kind nationally and kicks off the year of advocating for legal services.

 

UPDATE – For those looking for more information after last week’s post, we recommend this video on juvenile justice issues in which attorney Hank Coxe gives an entertaining and moving speech on the subject.

  – Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Lauding and Learning: The BBA Civil Gideon Conference

This year marks the 50th anniversary of the seminal case Gideon v. Wainwright, which ruled that state courts must provide counsel for parties that cannot afford them.  It represented a major turning point in the practice of law and individual’s rights in the United States.  It is hard to believe that there existed a recent time when public defense was not considered a basic right in a civilized country founded on the ideal of justice for all. 

In support of these efforts and in conjunction with the BBA’s Statewide Task Force to Expand Civil Legal Aid in Massachusetts, the BBA held a half-day conference entitled Examining the Civil Right to Counsel on the 50th Anniversary of Gideon v. Wainwright.  The event featured keynote speaker New York Chief Judge Jonathan Lippman.  Judge Lippman, who established The Task Force to Expand Access to Civil Legal Services in New York, the model for our own Statewide Task Force, also sat down with the members of the BBA’s Statewide Task Force before the half-day conference.  He has been a leader in successfully securing additional funding for civil legal aid in New York.

Judge Lippman argued that civil legal aid transcends doing a good deed.  It is not simply about helping the poor.  Rather, it should be considered a personal right, just like education and medical attention.  Furthermore, if funded correctly, it can provide a significant net savings to taxpayers.  He talked about his combined approach – (1) making the case for more public funding with his task force’s reports and statewide hearings and (2) implementing programs such as his pro bono requirement for bar admission and the use of retired lawyers for pro bono work. 

Presenters from California and Pennsylvania followed, describing the experiences in their states.  First, Bonnie Hough, Supervising Attorney of the California Administrative Office of the Courts and Clare Pastore, professor at USC Gould School of Law and a member of the California State Bar Access to Justice Commission’s Right to Counsel Task Force spoke on the pilot program established by the Shriver Civil Right to Counsel Act.  This six-year project established, funded, and is evaluating a number of innovations in courts such as courthouse help desks, expansion of e-filing systems, offering more settlement assistance, and providing court-employed neutral housing inspectors.  The speakers noted that court cooperation provided one of the most important reasons for the project’s success and had high hopes for its continued support and funding by the state legislature. 

Cathy Carr, Executive Director of Community Legal Services of Philadelphia and Co-Chair of the Philadelphia Bar Association’s Civil Gideon, described the Pennsylvania experience.  She talked about the various techniques activists have used to garner support for civil legal aid funding in the state.  She emphasized the importance of gaining ground-level support and instituting small changes as a means to achieving the eventual goals of major systemic transformation.

It’s heartening to look back at the last 50 years and see just how far we’ve come.  But this also reminds us of countless unserved people with legal needs in the areas of domestic violence, housing, and custody cases, to name a few.  Not only is there no comprehensive civil right to counsel in the United States, but there is neither enough funding nor enough lawyers providing these necessary and valuable services.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
Comments are disabled for this blog. To submit your comments please e-mail  issuespot@bostonbar.org

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