Archive for October, 2010

The Wisconsin Supreme Court has been asked to adopt a rule that would provide free legal services to poor people in some civil cases.

While public defenders are often provided to the indigent in criminal cases, this is a dramatic change for people who cannot afford to hire lawyers to represent them in serious civil lawsuits.

The rule is only a proposal at this point. If the court agrees, it would require free legal representation to protect poor litigants’ rights to “basic human needs,” the Milwaukee Journal Sentinel reported on Sept . 29.

The proposed rule reads:
Where a civil litigant is indigent (defined as below 200% of the federal poverty guidelines), the court shall provide counsel at public expense where the assistance of counsel is needed to protect the litigant’s rights to basic human needs, including sustenance, shelter, clothing, heat, medical care, safety and child custody and placement. In making the determination as to whether the assistance of counsel is needed, the court may consider the personal characteristics of the litigant, such as age, mental capacity, education, and knowledge of the law and of legal proceedings, and the complexity of the case.

Legal Action of Wisconsin, which represents people who typically can’t afford their own lawyer in civil proceedings, presented a petition signed by about 1,300 people to the court on Sept 30.

Seven  judges,  274 lawyers, and two court commissioners  signed the petition.

The idea has reportedly been circulating for years. One big advantage to providing professional assistance to the poor is that it would help cure the problem of people stumbling through the legal system acting as their own attorneys. Their success rate is understandably below par, not surprising when people try to tackle the complexities of representing themselves in a court case.

In a 2006 resolution, the American Bar Association endorsed a right to a lawyer in civil cases when basic human needs are at stake. The proposal is known as a “Civil Gideon” after a rule for the U.S. Supreme Court case that found a right to counsel for defendants facing possible jail time.

The proposal would not provide a free lawyer for someone suing in a personal injury action, privacy or free speech or other kind of proceeding over something that does not involve the indigent party’s essential needs.

It would not apply in personal injury cases (such as auto, motorcycle and truck accidents and wrongful deaths)  because those cases are generally taken on by attorneys on a contingency basis. Clients do not have to pay anything until and unless the attorney wins the case for them.

Advocates for the so-called Civil Gideon rule – it is named after the plaintiff in the landmark U.S. Supreme Court case that established the right to an appointed lawyer for criminal defendants – say it’s not just to help poor people thrust into complex court actions. Many such people now go forward on their own without lawyers, and that slows down and complicates court proceedings. It’s inefficient and also puts many judges in the precarious ethical position of trying to assist the unrepresented party without really acting as counsel.

Of course, there is the cost to consider. By one estimate,  it would cost anywhere from $50 million to $80 million a year to enact the rule.

If the Supreme Court accepts the petition, it would then solicit comments and set an administrative conference to discuss whether to adopt the rule. The process could take several months.