A Loss Of Liberty: Publically Funded Legal Representation

On August 3, 2006, the American Bar Association, through its House of Delegates approved a resolution that urged federal, state and local governments to make assurances that the poor have a right to legal counsel in civil cases where basic human needs are at stake.  The list of basic human needs included providing legal counsel in issues of child custody.  The purpose behind the resolution was to ensure that low income people have meaningful access to the judicial system.

The constitutional right to publicly funded legal representation has been recognized in the United States since 1963 when the Supreme Court decided the case Gideon v. Wainwright finding that the right was rooted in the 4^th Amendment of the Federal Constitution. Initially the right to publically funded legal representation was only established in criminal cases with felony charges but has since been expanded to include any criminal case that includes the threat of incarceration. 

In 1981, the Supreme Court ruled in Lassiter v. Department of Social Services (a case involving termination of parental rights) that a guaranteed constitutional right existed to publicly funded counsel in civil litigation, including child custody cases,  on a federal level but left open the opportunity for individual states to provide such services if the states so decided.

Few argue that there is a need for low income families to have adequate representation in civil cases.  Today, with so many losing their homes and behind on their bills because of the bad economy, many are trying to fight these issues in Court on their own because they cannot afford a lawyer.  However, because of a lack of understanding of the legal system most are finding the legal process to difficult to manage despite their best efforts.  The self represented litigants (sometimes referred to as Pro per or Pro Se) are not only doing themselves a disservice, but they are taking up a vast amount of the court’s time and resources which only serves to slow down the process for everyone.

This is particularly true in child custody matters.  Generally, child custody disputes are a part of a more complex divorce proceeding.  If one side is represented by counsel and the other side is not, this creates a wide disparity in results that is currently condoned by the judicial system.  More often than not women are the victims of this lack of representation.  And by the end of their case, they are childless and without the means of supporting themselves.   Further there is Supreme Court precedent stating that parental rights constitute a fundamental right and the loss of that right is akin to a loss of liberty.  Therefore, proponents of the liberty argument claim, as liberty should be defended at all costs; if child custody is at stake in a civil matter then the Constitution mandates that the public pay for legal representation.

The main objection to publically funded legal representation for child custody cases, or any expansion of publicly  funded legal representation for any civil matter, comes down to a matter of cost.  There are already limited funds for states to pay for legal representation for criminal cases and to mandate that civil litigants must have legal representation will only serve to increase costs.  Lawyers with experience in family law and civil law would have to be hired by every county.  To put it simply, there is neither the money nor political will to get the money out there to fund such an increase in costs.

The ABA makes a strong case that litigants who are not represented by counsel more often than not lose more than they should during the legal process. For the legal system to work, everyone has to be convinced that it is fair and impartial. When one side of a case reaps the benefits of an inexperienced pro per on the other side, and the judicial system condones this, there is the perception that the system only works for those who can afford to make it work for them. However, the real question is how can society pay for the luxury of ensuring that everyone has adequate legal representation in all matters involving a loss of liberty? The question most likely should be how can we afford to allow low income people to lose their rights simply because they are low income?

Dena Bez is a Sacramento family law attorney licensed in California whose practice focuses on assisting families through the judicial process in matters involving divorce, custody disputes, juvenile dependency, domestic partnership issues and estate planning.

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