Sept. 29, 2010

Poor people facing serious consequences in civil court actions would get court-appointed lawyers just like indigent criminal defendants under a rule being proposed to the Wisconsin Supreme Court.

The group Legal Action of Wisconsin, which represents people who typically can’t afford their own lawyer in a variety of civil proceedings, plans to present a petition signed by about 1,300 people to the court on Thursday.

The idea has been circulating among some lawyers and social service groups for years, said John Ebbott, executive director of Legal Action, and 274 lawyers, seven judges and two court commissioners are among those who have signed the petition.

“We quite some time ago came to the conclusion that when you try to help people represent themselves, it’s just not that effective. It’s like trying to do surgery on themselves,” Ebbott said. “Nothing short of a lawyer in significant cases will suffice if we’re talking about equal justice under the law.”

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.

It 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 nonessential needs.

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.

While there are some groups – such as Legal Action, the Legal Aid Society and individual lawyers – that take some cases for free, the efforts can’t come close to meeting the need, Ebbott said.

And while some clinics can help lawyer-less parties do a more competent job representing themselves, they still very rarely fare as well as if they had a lawyer.

The big hurdle: cost. Ebbott estimates that it would cost anywhere from $50 million to $80 million a year, depending largely on how judges implement the rule.

Some of that money could come from the court services support surcharge, paid when people file small- and large-claim civil actions, he said.

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