The Colorado Lawyer
Vol. 36, No. 7 [Page 95]
© 2007 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.
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Access to Justice
Expanding Colorado’s Right to Counsel in Civil Cases—A Modest Proposal
by Daniel M. Taubman
About the Author:
Daniel M. Taubman is a judge on the Colorado Court of Appeals. He has been on the Bench since 1993—(303) 837-3719, email@example.com.
The Access to Justice column provides information about poverty law and other areas of the law as they relate to low-income clients; reports on the Access to Justice Commission and local and national Access to Justice Committees; and testimonials from lawyers about their pro bono experience. Readers interested in contributing an article on legal services, pro bono, and Access to Justice topics should contact Kathleen Schoen at firstname.lastname@example.org.
The Colorado Access to Justice Commission is an independent entity that was formed in 2003 with the support of the Colorado Supreme Court, the Colorado Bar Association, and the Statewide Legal Services Group. The Mission of the Access to Justice Commission is to develop, coordinate, and implement policy initiatives to expand access to and enhance the quality of justice in civil legal matters for persons who encounter barriers in gaining access to Colorado’s civil justice system.
Has the time come to expand Colorado’s limited right to counsel in civil cases? For reasons that may surprise you, this question should be answered in the affirmative.
Seventy-five years ago, the U.S. Supreme Court held that an individual’s "right to be heard [in legal proceedings] would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel."1 Thirty-one years later, the Supreme Court recognized the constitutional right to counsel in criminal cases in the landmark decision Gideon v. Wainwright.2 In Gideon, the Supreme Court held:
Reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. . . .3
In 1981, the Supreme Court held in Lassiter v. Dep’t of Social Services of Durham County4 that in limited circumstances, indigent parents in civil proceedings that could terminate their parental rights were entitled to appointed counsel to represent them. Because of the restrictive interpretation of the constitutional right to counsel in parental termination cases in Lassiter, many advocates were dissuaded from seeking the adoption of a constitutional right to counsel in civil cases.5 Nevertheless, the Colorado General Assembly established a limited right to counsel in dependency and neglect proceedings,6 in mental health civil commitment proceedings,7 and in alcohol intoxication commitment proceedings.8
2006 ABA Resolution
The impetus to expand the limited right to counsel in civil cases in Colorado and elsewhere gained momentum last year when the House of Delegates of the American Bar Association (ABA) unanimously approved a resolution (ABA Resolution) urging state and federal governments to provide "legal counsel as a matter of right at public expense" to low-income persons in adversarial proceedings in five areas "where basic human needs are at stake."9 The five basic needs are shelter, sustenance, safety, health, and child custody.10
Fourteen bar associations, including the Colorado Bar Association, formally supported the adoption of the ABA Resolution recommended by the ABA’s Task Force on Access to Civil Justice. That task force, which included Colorado Legal Services Executive Director Jonathan Asher, was chaired by Maine Supreme Court Justice Howard H. Dana, Jr., who was at one time an appointee of President Ronald Reagan to the Legal Services Corporation (LSC) Board of Directors.
According to the task force’s report, nationally one million people facing legal problems are turned away by local legal services offices every year; millions more don’t even bother seeking legal assistance because they believe that help is not available.11 The report relied on a significant LSC study. The study, "Documenting the Justice Gap in America," noted that recent legal needs studies in ten states "found a level of need substantially higher than the level found in" a 1994 ABA national study (emphasis in original).12 The LSC study reached the following conclusions:
- For every client served by an LSC-funded program, at least one person who sought help was turned down because of insufficient resources.
- Only a small percentage of the legal problems experienced by low-income people (one in five or fewer) are addressed with the assistance of a private attorney (pro bono or paid) or a legal aid lawyer.
- Despite the changes in legal aid delivery over the last decade, a majority of legal aid lawyers still work in LSC-funded programs. The per capita ratio of legal aid attorneys funded by all sources to the low-income population is a tiny fraction of the ratio of private attorneys providing personal civil legal services to the general population.13
Colorado’s "Justice Gap"
Part of the reason for this "justice gap" is that, notwithstanding the diversification of funding during the last quarter century through programs such as the Colorado Lawyers Trust Account Foundation (COLTAF) and the Legal Aid Foundation of Colorado, federal funding remains stagnant. In 1980, $300 million was appropriated by Congress for LSC; last year, the funding level was less than $327 million. To keep up with inflation over that period, the LSC appropriation would have needed to reach more than $717 million last year.14
In Colorado, $6.27 million was appropriated in Fiscal Year 2006 for appointed counsel in dependency and neglect cases and mental health civil commitment proceedings.15 In addition, the General Assembly has appropriated $500,000 for civil legal services for representation of victims of domestic violence.16
Many other states provide substantially more funding for these services, not including dependency and neglect and mental health civil commitment proceedings, both in absolute terms and in relation to their poverty populations.17 Given these circumstances, what can be done to improve the situation?
First, as the task force’s report accompanying the ABA Resolution notes, extensive national efforts are under way to develop through litigation a constitutional right to counsel in civil cases.18 For example, in Frase v. Barnhart,19 Maryland’s highest appellate court sidestepped the issue, but a three-judge concurrence would have declared a civil right to counsel for the indigent mother in a contested custody dispute.
In Colorado, the Colorado Supreme Court and the Colorado Access to Justice Commission have worked actively to increase the amount of pro bono services provided by attorneys participating in Bar-sponsored pro bono programs and organizations such as the Colorado Lawyers Committee. They have done so by creating the Supreme Court’s pro bono initiative program,20 by promulgating a rule providing for continuing legal education credit for pro bono services,21 and by issuing a Chief Justice Directive providing a streamlined procedure for in forma pauperis filings by pro bono and legal services lawyers.22
Notwithstanding these measures, the justice gap in Colorado remains significant. As noted above, at least half of those seeking assistance from Colorado Legal Services are turned away. Many others receive brief legal advice when more comprehensive legal representation is required. Thousands of others do not contact Colorado Legal Services because they do not know of its existence or anticipate they will be turned away. Under these circumstances, the ABA Resolution provides a framework for increasing Colorado’s limited statutory right to counsel in civil cases.
The ABA Resolution applies to those areas where there are adversarial proceedings and "the most basic of human needs are at stake."23 The five basic human needs identified in the ABA Resolution are (1) shelter, which includes eviction actions; (2) sustenance, which encompasses welfare, Social Security disability, food stamps, and other government benefits; (3) safety, which includes domestic violence restraining orders; (4) health, embracing disputes concerning Medicare and Medicaid; and (5) child custody, which includes both contested disputes over parenting time and termination of parental rights proceedings.24
Applying the ABA Resolution in Colorado
Significantly, the ABA Resolution states that legal needs in these areas may be met as determined by each jurisdiction.25 This limitation has important practical benefits. First, as the amount of pro bono services provided by private attorneys increases, the need for state funding will decrease. Second, the General Assembly need not view this as an all-or-nothing issue. Funding could be initiated through pilot projects and limitations in time, geographic area, or type of case.26
Indeed, the General Assembly might consider as part of any legislation in this area a cost-benefit analysis of increased funding for counsel in certain civil cases. For example, a 2006 Wisconsin study concluded that providing $1 million in funding to the Department of Health and Family Services’ Domestic Abuse Grant Program would yield roughly $10 million in net benefits. Such funding, which would be used to provide training to judges and others, and to recruit and train pro bono attorneys, would lead to cost savings in the areas of medical care, mental health, lost productivity, and property damage.27
Cost-benefit analyses in other areas may be similarly informative. Further, by using the language "subject to available appropriations," the General Assembly could assure that legislation in this area would not create an unlimited liability.28
As the civil legal assistance system in the United States continues to evolve, states increasingly are developing their own comprehensive, integrated systems of civil legal assistance. In Colorado, this evolution is occurring in part through the Colorado Access to Justice Commission and a developing statewide network of local access to justice committees in each judicial district. These changes provide a practical, workable framework for increased access to justice for low-income Coloradans. As the authors of "Securing Equal Justice for All" concluded:
The overarching goal for the civil legal assistance program always has been and will continue to be equal justice for all. While the United States has a long way to go to reach that goal, it is continuing on a path toward a civil justice system that will make that dream a reality for the nation’s low-income community.29
Accordingly, supporters of access to justice in Colorado should use the ABA Resolution as a framework to provide funding for a more comprehensive system of legal assistance to low-income Coloradans. This will bring us closer to the ideal of "equal justice for all."
1. Powell v. Alabama, 287 U.S. 45, 68-69 (1932).
2. Gideon v. Wainwright, 372 U.S. 335 (1963).
4. Lassiter v. Dep’t of Social Services of Durham County, 425 U.S. 18 (1981).
5. American Bar Association (ABA), "Report to the House of Delegates No. 112A" (2006), available at http://www.abanet.org/legalservices/sclaid/downloads/06A112A.pdf, (ABA Report) at 9.
6. CRS § 19-1-105; CRS § 19-3-602(2).
7. CRS §§ 27-10-103(3.5)(c) and -106(10).
8. CRS § 25-1-310(6).
9. ABA Report, supra note 5 at 1. The ABA Resolution provides:
Resolved, that the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense 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, as determined by each jurisdiction.
11. See id. at 4-5.
12. Legal Services Corporation (LSC), "Documenting the Justice Gap in America" (2005), available at http://www.lsc.gov/JusticeGap.pdf, (LSC Study) at 13. The ABA’s "Comprehensive Legal Needs Study" (March 1994) is available at http://www.abanet.org/legalservices/downloads/sclaid/legalneedstudy.pdf.
13. LSC Study, supra note 12.
14. Houseman and Perle, "Securing Equal Justice for All: A Brief History of Civil Legal Assistance in the United States" (Center for Law and Social Policy, 2007) at 38.
15. Telephone conversation with Paul Litschewski, Financial Services Division, State Court Administrator’s Office, in Denver, Colorado (May 7, 2007). Many other states provide a right to counsel by statute or court rule in similar categories of cases, as well as domestic violence proceedings, involuntary sterilization cases, and cases involving members of the military. See Abel and Rettig, "State Statutes Providing for a Right to Counsel," 4 Spreading Justice 15, ABA Section of Litigation (Winter/Spring 2007).
16. Access to Justice Partnerships materials (March 24, 2007), ABA Resource Center for Access to Justice Initiatives, unnumbered page.
17. For example, Minnesota and New Mexico, whose poverty populations are approximately the same as Colorado’s, provide a total of $12.3 million and $2.5 million, respectively, in state funding for civil legal services. New Hampshire, with a poverty population approximately one-fifth that of Colorado’s, provides a total of $970,000 in state funds for civil legal services. Access to Justice Partnerships materials, supra note 16.
18. ABA Report, supra note 5 at 7-12. Much has been written about a constitutional right to counsel in civil cases. See id. at 10, n.26 (collecting Law Review articles). See, e.g., Marvy and Gardner, "A Civil Right to Counsel for the Poor," 32 Human Rights 8 (Summer 2005).
19. Frase v. Barnhart, 379 Md. 100, 840 A.2d 114 (2003).
20. "Colorado Supreme Court Pro Bono Legal Services Recognition Program," 36 The Colorado Lawyer 57 (March 2007).
21. C.R.C.P. 260.8.
22. Chief Justice Directive 98-01 (amended July 2006).
23. ABA Report, supra note 5 at 12. Others have addressed the need to establish a comprehensive system for increasing access to justice for the poor in civil cases. See Udell and Diller, "Access to Justice: Opening the Courthouse Door" (Brennan Center for Justice, New York University School of Law, 2007) (given that about 80 percent of the civil legal needs of low-income individuals go unmet, expanded access to attorneys in civil cases recommended, through increased LSC funding and promoting a right to counsel when basic human needs are at stake); Charn and Zorza, Civil Assistance for All Americans (Harvard University, 2005) (recommending full-access legal services system through public-private collaboration); Rhode, Access to Justice (Oxford University Press, 2004) (urging expanded government funding for civil legal assistance).
24. ABA Report, supra note 5 at 13.
25. A task force of the California Commission on Access to Justice has drafted a model statute to implement the resolution. See http://www.brennancenter.org/dynamic/subpages/download_file_38656.pdf.
26. The California legislature is considering a pilot program to make appointed counsel available to low-income Californians in three counties for specified types of cases, such as landlord-tenant or family law. See McCarthy, "$394 Million ‘Justice Gap’ Plagues Legal Services," California Bar Journal 1 (March 2007); Madigan, "‘Gideon’ Right to Civil Cases is Needed," New York Law Journal (Jan. 22, 2007) (President-Elect of New York State Bar Association advocates housing as a focus of expanded right to counsel efforts, noting that each dollar spent on legal representation of tenants would produce four dollars in savings from the costs if tenants become homeless).
27. Elwart et al., "Increasing Access to Restraining Orders for Low-income Victims of Domestic Violence: A Cost Benefit Analysis of the Proposed Domestic Abuse Grant Program" (Dec. 2006), Executive Summary, available at http://www.abanet.org/legalservices/sclaid/atjresourcescenter/home.html.
28. See, e.g., Goebel v. Colorado Department of Institutions, 830 P.2d 1036, 1038 (Colo. 1992) (interpreting amendments to mental health civil commitment statutes).
29. Houseman and Perle, supra note 14 at 49.
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