01 Jun Civil “Gideon” Comes To California

With little fanfare, the California legislature has passed what its supporters call the nation’s first “Civil Gideon” statute. Signed into law by the Governor in the last legislative session, the “Sargent Shriver Civil Counsel Act” (AB 590) is the first step toward a comprehensive plan for providing government-paid lawyers to qualifying litigants in civil cases, just as the landmark Supreme Court case of Gideon v. Wainwright, 372 U.S. 335 (1963) required state-provided defense counsel in many criminal cases.

The bill’s sponsor, Assemblyman Mike Feuer (D-Los Angeles), has framed the fundamental issue as follows:

“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.”

The Civil Gideon movement is a nationwide phenomenon amongpro bono legal services providers. Its goals are bold and sweeping:  in 2006, the House of Delegates of the American Bar Association unanimously called for free legal counsel, paid for by the government, to “low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody. . . .” The nationwide CivilGideon movement thus seeks to fundamentally alter the way many civil cases are handled in the United States, by using general revenue tax dollars to “level the financial playing field” in litigation between private litigants.

California’s initial foray into Civil Gideon is more modest in scope. The new law simply requires the California Judicial Council — a group of judges and lawyers, headed by the Chief Justice of California — to establish pilot programs to provide legal counsel to low‑income parties in civil cases involving basic human needs.  But nothing in the legislation dictates precisely which types of cases will be eligible for free legal aid; that will be left to the Judicial Council.  And, at least initially, tax dollars will not be at stake.  Rather, the pilot projects will be funded by increases in court filing fees for civil judgments. Thus, civil users of the court system — specifically, those who have obtained civil judgments — and not taxpayers, will be footing the bill for the new pilot projects.But supporters of the Civil Gideon concept envision a legal delivery system for civil cases that is similar to the one now existing for criminal cases:  taxpayer-funded legal counsel for those unable to afford a lawyer. With the passage of the Shriver Act in California, the entrepreneurial community must begin to ask itself: Is this a good thing?  Is taxpayer funding of private litigation a sensible solution to the problem of inadequate legal services for the poor?

Few people today debate whether taxpayer funding for defense lawyers in criminal cases is good policy. After all, even fiscal conservatives admit that the current system is an effective way to curtail the immense power of the State. When the government tries to take away the liberty of one of its citizens through criminal laws, what better antidote is there to government overreaching than having the government itself provide and pay for the defense lawyer?

But the argument becomes much less persuasive, and the issues far murkier, when the government is not involved in the litigation. Consider the case of housing and evictions. Many landlords are middle-class homeowners who do their best to follow the laws of landlords and tenants. They, like their tenants, have their own housing concerns: many of them need rental income to help pay their mortgages. It is easy to envision situations in which a tenant is unable to pay rent, and has no legitimate defense to eviction, but where the lost rental income will jeopardize the landlord’s mortgage payments.

Given that residential landlord-tenant laws already provide substantial protection for tenants, it frankly does not take much to increase the cost of eviction for our hypothetical landlord, whose family home depends on mortgage payments, and whose mortgage payments are in increasing jeopardy for each day that a government lawyer is able to stave off eviction for his non-paying tenant client.  In such a case, Civil Gideon laws interfere with the legally-just and economically-correct solution of replacing the non-paying tenant with a paying tenant.  Does it make sense to provide the non-paying tenant with free, government-paid legal help, to enable him to “game” the system and delay an eviction that is entirely just?

In this hypothetical, why should the system favor one private litigant over another, with a free lawyer? Or, consider this: because the landlord may be in jeopardy of losing his or her home, will the landlord also get a free lawyer?  This latter scenario — two government-paid lawyers battling against each other in a civil lawsuit between private litigants — may not be as far-fetched as it sounds at first blush.

After all, the ABA resolution calls for state-paid lawyers “where basic human needs are at stake, such as those involving shelter . . . .” Or, consider this hypothetical:

What if a person is qualified for a state-paid attorney (under whatever rules are ultimately established), and is about to lose his or her small business because of an unjust lawsuit?  Can a business owner get a free, state-paid “Civil Gideon” lawyer to defend a small business in a lawsuit?  One could argue that, under the ABA’s unanimous resolution, such a person might well benefit from the Civil Gideon program.  A lawsuit that jeopardizes one’s business, and hence the ability to feed one’s family, could theoretically qualify as an “adversarial proceeding where basic human needs are at stake.”Having government-paid lawyers representing businesses in civil litigation may seem highly improbable in our society.  But the CivilGideon law in California remains in its infancy, and only time will tell how the economics of litigation will be changed, as the new law is framed and implemented. At a minimum, the hypotheticals discussed above show that, when a lawsuit does not involve the government trying to enforce the criminal laws, but rather one private party suing another private party, a new layer of complexity is added to the issue of providing free legal services to the poor.

The entrepreneurial community would do well to lend its voice to the development of this new and potentially sweeping law. Send an e-mail to Paul S. Marks, Esq. by clicking here. Learn more about California’s Civil Gideon law by clicking this link to the California Judicial Council.

See the American Bar Association’s unanimous resolution in support of Civil Gideon by clicking here. Let us know what you think about California’s new Civil Gideon law by clicking here to send us an email.