ON THE RIGHT TO COUNSEL

 

[Posted August 1, 2008]  One of the fringe benefits of being in the ABA’s Council of Appellate Lawyers is a subscription to The Judges’ Journal, the periodical published by the ABA’s Judicial Division.  The CAL is technically a part of that division, and that membership sometimes leads to some awkward correspondence, when I get bulk mail addressed to “The Hon. L. Steven Emmert,” a title I am not likely to see legitimately in this lifetime.

 

The summer 2008 issue of the Journal arrived this week, and I have just read a very thoughtful article by Justice Earl Johnson, Jr., who retired last year from the California Court of Appeal.  Justice Johnson’s theme is that indigent parties should have a right to court-appointed counsel, not just in criminal cases, but in important civil proceedings, too.  Note that he doesn’t advocate an attorney for each and every court appearance, or even each and every case; specifically, he cites with approval a 2006 ABA resolution that calls for such appointed counsel “in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health[,] or child custody . . ..”

 

You probably know that there is no right to court-appointed counsel in civil cases.  You may not know that the US Supreme Court rendered just such a ruling in a 1981 case, essentially sealing off the right to appointed counsel to criminal proceedings alone.  But the context of that ruling, as explained by Justice Johnson, is worth noting.

 

In 1942, the Big Supremes ruled that there is no right to a court-appointed lawyer in criminal cases.  Betts v. Brady, 316 US 455 (1942).  It took only 21 years for the Court to reverse itself on this point, in the celebrated case of Gideon v. Wainwright, 372 US 355 (1963).  But eighteen years later, the Court held, in the child custody case of Lassiter v. DSS, 452 US 18 (1981), that no such right existed in civil cases.

 

The Lassiter decision was 5-4, as so many decisions seem to be on the increasingly fractured Court of the 21st Century.  But as the justice points out, the facts of the case (which he describes as “the weakest possible fact situation for declaring such a right”) seemed to presage the ultimate decision, if only as a matter of practicality:

 

“Lassiter was a double murderess who hadn’t seen her children for years and wouldn’t be able to be a parent to them until her earliest possible parole date, by which time they were adults.  It seemed highly unlikely any lawyer, even a Clarence Darrow or his equivalent, could have won the case [below] . . ..”

 

Despite this overwhelmingly problematic fact pattern, four justices voted to extend a right to counsel to Lassiter.  One can only wonder (as Justice Johnson does) whether the US Supreme Court would react differently if a more compelling case came along.  Given the current composition of the Court, my initial reaction is that I doubt it.  But that doesn’t mean that the issue is dead.

 

The other thread of the justice’s argument is that we are seriously lagging behind the rest of our partners in civilization in refusing to recognize this right.  Germany, he notes, recognized it back in ’77.  By the way; that’s 1877.  France did so 25 years before that, at a time when Victor Hugo was probably just starting to formulate Les Miserables in his imagination.  And in 1979, just two years before the Lassiter decision, the European Court of Human Rights had ruled that the Irish legal system had to provide a free lawyer, based on the guarantee of “a fair hearing,” to an indigent woman who wanted a legal separation.  The Lassiter decision mentions nothing about that case, or any of the other nations’ rulings.

 

In America, we are a confederation of sovereign states, constrained only by the federal constitution in what rights must be provided or cannot be denied.  So what’s the state of affairs here in Virginia?  At least at the appellate stage, Virginia now provides some succor for indigent parties.  Last year, the Supreme Court approved a program providing for panels of volunteer attorneys willing to accept assignments (note – not appointments; there is a difference) to cases involving unrepresented indigent parties (appellants or appellees).  That is an important step toward enabling the court to ensure that both sides of a case are professionally presented for decision, presumably avoiding a whole lot of bad law.  [If any of you would like to volunteer for these panels, contact me and I’ll make that happen.]

 

But does this program go far enough?  Two considerations suggest that it might not.  First, the appointment can be made from these panels only after the court decides to grant a writ.  At the petition stage, there is no provision for appointed or assigned counsel.  Overall, the writ-granted rate in civil cases usually runs to about 21 or 22 percent; the rate for pro se appellants is probably much lower than that.  How many potentially meritorious appeals never mature to the merits stage because they are not presented in a professionally prepared petition for appeal?  I cannot begin to guess.

 

Second, and implicating vastly more resources, is Justice Johnson’s principal thesis:  Court-appointed trial counsel for indigent parties in civil cases.  As any good appellate lawyer will tell you, if the trial record is a disaster, there’s not much she can do with the case.  The seeds for appellate victory are always, always planted in the trial court, and that point is where the assistance of counsel is most vital; where the absence of counsel can be most fatal.

 

Justice Johnson’s views raise the troubling possibility that Americans may regard that their indigent citizens simply aren’t worthy of the kind of legal protections afforded to those in other nations.  Those countries have based their policies on guarantees of things like “fair proceedings,” or of “equal access to justice,” in their fundamental legal documents.  In Justice Johnson’s view, we have a couple of phrases like that.  See if these sound familiar:  “Equal protection of the laws.”  “Due process of law.”  (We even have some language like that in the Constitution of Virginia.)  Europeans, at least, think that noble words like that should be interpreted broadly.

 

Regardless of what the nine Robes say in Washington, our Virginia appellate courts could, based on the Virginia Constitution, declare that there is such a right in our courts.  (The Supreme Court of Virginia, not the one in Washington, is the court of last resort on questions of Virginia law.)  But that does raise one practical consideration:  Virginia’s contemporaneous objection rules, Rule 5:25 and Rule 5A:18, require that an issue be raised in the trial court before it will be considered on appeal.  Few pro se litigants are likely to have the presence of mind (not to mention the legal ability) to suitably raise this issue in a trial court.  The question becomes whether either appellate court will entertain such an argument, raised for the first time when an appellate lawyer steps up to the lectern and assails the way we do business here.  Given the importance of this issue for defining the kind of society we will have – and that history will judge us to have had – I earnestly hope the answer is yes.