illustration by Phil Foster
A city ordinance signed by Mayor Ed Lee in early April has made San Francisco the first city in the nation to create a guaranteed right to civil counsel. Although the U.S. Supreme Court recognized a right to legal representation in criminal matters in the landmark case of Gideon v. Wainwright
(372 U.S. 335 (1963)), no such corresponding right exists in the civil arena, despite what some see as a greater need for it.
"You cannot have a more compelling cause than child custody or shelter for family," says Robert Rubin, former litigation director for the Lawyers' Committee for Civil Rights of the San Francisco Bay Area. Rubin brought the proposal to the San Francisco Board of Supervisors last fall, together with Shearman & Sterling partner James J. Donato and Morrison & Foerster partner James J. Brosnahan. Rubin argues that while rights threatened in civil court go unprotected by counsel, "You would get a lawyer if you were facing six months of probation for stealing a magazine."
The ordinance, passed in March by the Board of Supervisors, authorizes a one-year Right to Civil Counsel pilot program but restricts the city's financial commitment to paying one staff person to coordinate the city, clients, and pro bono lawyers. To be eligible for free counsel, a person would need to live within 200 percent of the federal poverty line and have a case touching on "a basic human need," such as housing, safety, or child custody.
According to a 2010 report by the Judicial Council of California, 80 percent of litigants in California's family law courts and more than 90 percent of those in tenancy disputes represent themselves. Some aid has come through California's 2009 Sargent Shriver Civil Counsel Act, which created $9.5 million in grants to help low-income clients obtain representation in civil matters.
California's pilot programs are the first instance of city or state governments taking steps to offer a right to civil counsel; in other states efforts are driven mostly by private bars, legal service organizations, and court-created justice commissions. For example, in 2009 the Philadelphia Bar started civil Gideon pilot projects in mortgage foreclosure and child custody cases. In 2007 the Boston Bar conducted a similar project with regard to eviction cases.
The San Francisco ordinance comes at a time when the court system is struggling to meet its responsibilities to the public. But Brosnahan says the ordinance could help lighten the load on courts by reducing delays caused by pro se litigants unfamiliar with court procedures. Judges would also intervene less often to explain procedures to unrepresented parties and thus avoid accusations that they are biased.
"This is a problem that gets worse and worse," says Brosnahan. "On the fifth floor of the superior court in San Francisco, you see people in huge lines at the self-help window. It's pathetic our society can't do better."
If successful, the program will become permanent, adds Brosnahan, who hopes to introduce similar proposals in other cities.
Lawrence J. Siskind, a partner at Harvey Siskind in San Francisco and a civil Gideon critic, expressed skepticism about taking on the added expense of a civil-right-to-counsel program when California's court system is already facing a financing crisis. He says that private legal aid groups are better positioned to decide which cases are most worthy of counsel.
Still, supporters say that the ordinance could save the city money in the long run. "By not providing counsel, cities and states end up paying the costs down the road," says John Pollock, coordinator for the National Coalition for a Civil Right to Counsel, "in extended foster care or more police enforcement or homeless shelters. The San Francisco ordinance is very innovative and noteworthy. It's a milestone."