Poor People Deserve Right to Counsel for Serious Civil Cases
Monday, September 25, 2006
- Organization: Daily Journal: Forum Column
SEPTEMBER 19, 2006 | PUBLIC INTEREST Poor People Deserve Right to Counsel for Serious Civil Cases
Forum Coulmn
By Colin Murray
On any given day, there are 361,000 homeless people in California. Most of them need a vast array of legal services to help them as they transition from homelessness back into society.
Living on the streets often generates countless legal issues that, when left unresolved, can perpetuate homelessness or threaten shelter once it is found. An outstanding warrant for illegal lodging can result in a weekend spent in jail and in the loss of housing for someone who works weekends and is just making ends meet.
Illegal lodging tickets are just the beginning of violations for which the homeless are cited. Others include being drunk in public, urinating in public, mass-transit violations, trespassing and camping on the beach or in the park. Those lucky enough to have the shelter of a car may face citations for habitation in a vehicle and parking tickets. Because these offenses are misdemeanors, the accused must either pay a fine or time spend time in jail. As money is something homeless people do not have, and since jail is a place that nobody wants to go, the violations often go unanswered.
The courts are often overwhelmed with more cases than they can manage. The system faces a huge burden when it tries to address thousands of illegal-lodging tickets each year: The defendants, housed at great expense, have no ability to pay and no addresses to track.
In 1989, the nation's first homeless court was established in San Diego, which has spread throughout the country. There are now 15 active courts and as many as eight in developmental stages in California alone.
The program is a unique Superior Court session for homeless defendants that takes place in a shelter and resolves misdemeanor offenses and warrants. It is a voluntary program for that segment of the population that has made significant strides toward ending the cycle of homelessness. The defendants seen in homeless court are living in shelters and working to address the issues that put them on the streets in the first place, such as drug or alcohol abuse, mental illness or unemployment.
As they strive to recover their lives, they are referred to the court, where they are represented by the public defender. With the agreement of the prosecutor, a judge sentences participants to activities in the shelter program that have contributed to the defendants' commitment to getting off the streets, such as life-skills training, counseling, attendance at Alcoholics Anonymous meetings or training and searching for employment.
The need for civil legal services is harder to understand. The Legal Services Corp. has determined that at least 80 percent of the civil legal needs of low-income Americans are not being met. While often aware of the criminal matters they face because of a ticket or arrest, the homeless often don't know of the civil matters they have.
Countless homeless women are living on the streets because of domestic violence and are in need of restraining orders and divorces. Homeless children have special needs in the areas of abuse, neglect and other family law issues along with access to education and public benefits. Social Security, Supplemental Security Income for the disabled, general relief and food stamps are among the state and federal entitlements that can help get people off the streets, but the complexities of navigating the system (not to mention lack of a mailing address or bank account) often require legal help.
Michael Greco, immediate past president of the American Bar Association, said, "The importance of providing legal representation to those who have great need for legal services but limited resources, and to the most vulnerable among us, cannot be overstated. It is a life line that can make the difference between stability and poverty, between hope and despair."
In 1962, the U.S. Supreme Court recognized that an indigent criminal defendant has a constitutional right to counsel in criminal cases. But we have yet to recognize such a right for indigent Americans facing equally serious civil legal problems they cannot address without the help of counsel.
The homeless population of the United States is larger than that of any other industrialized nation in the world. The vast majority of California's homeless are located in the southern region of the state. Los Angeles has gained a reputation as the nation's homeless capital, with counts as high as 91,000. Orange County comes in second at 34,898, and San Diego stands at 5,190, as compared to 6,248 in San Francisco County and 2,229 in Sacramento County last year. Many of these individuals are in need of a lawyer but without the ability to pay for one.
Legal aid organizations, law schools and the private bar work in close partnership to represent homeless clients and advocate for their rights, but the challenges for these pro bono volunteers are vast. Throughout California, there are hundreds of legal aid organizations that hire public-interest attorneys and recruit private attorneys and law students to volunteer pro bono legal services to meet the needs of the indigent.
Individual attorneys and law firms donate thousands of hours of pro bono work each year, valued at millions of dollars, to represent the poor. They play an equally important role in advancing litigation that enforces laws to protect the homeless and engage in advocacy that will spur Congress into action to make new laws to protect their rights.
The ABA has established the Task Force on Access to Civil Justice, which will work to support and expand the existing network of state access to justice commissions, such as California's Department of Housing and Community Development's Interagency Task Force on Homelessness and Gov. Schwarzenegger's Homeless Initiative. The ABA's task force also will consider carefully the issue of a defined right to counsel in certain serious civil matters and will develop new initiatives, policies and resources to expand access to civil justice in America.
Court programs, government task forces and private legal aid organizations are all important entities, but they require money to operate. In California, the State Bar and most regional bar associations have established charitable foundations that offer the legal community an opportunity to fulfill their commitment to access to justice through law-related philanthropy. The State Bar of California has the Interest on Lawyers' Trust Account and both a foundation and an equal-access fund to marshal the resources of California's legal community and improve the lives of indigent Californians by providing access to justice throughout the state by investing millions of dollars in legal aid organizations.
Following suit, the San Diego County Bar Association established a similar foundation 27 years ago. In 2005, the San Diego County Bar Foundation made a commitment to funding the legal needs of the homeless at the request of attorney Frank Fox, who established the Gary W. Majors Fund for the Homeless. Dedicated to funding direct legal services to homeless men, women and children, the foundation will begin making grants this fall.
California's legal community is doing much to help the homeless with their legal needs, but there is still a long way to go. There is a great trend now to provide more housing along with permanent supportive housing. As more of the homeless are able to address their first three basic survival needs of food, clothing and shelter, secondary needs imperative to their survival in mainstream society will grow. Initiatives such as homeless court, the Task Force on Access to Civil Justice and successful fundraising to ensure the delivery of services will become more important than ever.
Colin Murray, president of the San Diego County Bar Foundation, is a partner at Baker & McKenzie's San Diego office. His practice emphasizes litigation and alternative dispute resolution.
Forum Coulmn
By Colin Murray
On any given day, there are 361,000 homeless people in California. Most of them need a vast array of legal services to help them as they transition from homelessness back into society.
Living on the streets often generates countless legal issues that, when left unresolved, can perpetuate homelessness or threaten shelter once it is found. An outstanding warrant for illegal lodging can result in a weekend spent in jail and in the loss of housing for someone who works weekends and is just making ends meet.
Illegal lodging tickets are just the beginning of violations for which the homeless are cited. Others include being drunk in public, urinating in public, mass-transit violations, trespassing and camping on the beach or in the park. Those lucky enough to have the shelter of a car may face citations for habitation in a vehicle and parking tickets. Because these offenses are misdemeanors, the accused must either pay a fine or time spend time in jail. As money is something homeless people do not have, and since jail is a place that nobody wants to go, the violations often go unanswered.
The courts are often overwhelmed with more cases than they can manage. The system faces a huge burden when it tries to address thousands of illegal-lodging tickets each year: The defendants, housed at great expense, have no ability to pay and no addresses to track.
In 1989, the nation's first homeless court was established in San Diego, which has spread throughout the country. There are now 15 active courts and as many as eight in developmental stages in California alone.
The program is a unique Superior Court session for homeless defendants that takes place in a shelter and resolves misdemeanor offenses and warrants. It is a voluntary program for that segment of the population that has made significant strides toward ending the cycle of homelessness. The defendants seen in homeless court are living in shelters and working to address the issues that put them on the streets in the first place, such as drug or alcohol abuse, mental illness or unemployment.
As they strive to recover their lives, they are referred to the court, where they are represented by the public defender. With the agreement of the prosecutor, a judge sentences participants to activities in the shelter program that have contributed to the defendants' commitment to getting off the streets, such as life-skills training, counseling, attendance at Alcoholics Anonymous meetings or training and searching for employment.
The need for civil legal services is harder to understand. The Legal Services Corp. has determined that at least 80 percent of the civil legal needs of low-income Americans are not being met. While often aware of the criminal matters they face because of a ticket or arrest, the homeless often don't know of the civil matters they have.
Countless homeless women are living on the streets because of domestic violence and are in need of restraining orders and divorces. Homeless children have special needs in the areas of abuse, neglect and other family law issues along with access to education and public benefits. Social Security, Supplemental Security Income for the disabled, general relief and food stamps are among the state and federal entitlements that can help get people off the streets, but the complexities of navigating the system (not to mention lack of a mailing address or bank account) often require legal help.
Michael Greco, immediate past president of the American Bar Association, said, "The importance of providing legal representation to those who have great need for legal services but limited resources, and to the most vulnerable among us, cannot be overstated. It is a life line that can make the difference between stability and poverty, between hope and despair."
In 1962, the U.S. Supreme Court recognized that an indigent criminal defendant has a constitutional right to counsel in criminal cases. But we have yet to recognize such a right for indigent Americans facing equally serious civil legal problems they cannot address without the help of counsel.
The homeless population of the United States is larger than that of any other industrialized nation in the world. The vast majority of California's homeless are located in the southern region of the state. Los Angeles has gained a reputation as the nation's homeless capital, with counts as high as 91,000. Orange County comes in second at 34,898, and San Diego stands at 5,190, as compared to 6,248 in San Francisco County and 2,229 in Sacramento County last year. Many of these individuals are in need of a lawyer but without the ability to pay for one.
Legal aid organizations, law schools and the private bar work in close partnership to represent homeless clients and advocate for their rights, but the challenges for these pro bono volunteers are vast. Throughout California, there are hundreds of legal aid organizations that hire public-interest attorneys and recruit private attorneys and law students to volunteer pro bono legal services to meet the needs of the indigent.
Individual attorneys and law firms donate thousands of hours of pro bono work each year, valued at millions of dollars, to represent the poor. They play an equally important role in advancing litigation that enforces laws to protect the homeless and engage in advocacy that will spur Congress into action to make new laws to protect their rights.
The ABA has established the Task Force on Access to Civil Justice, which will work to support and expand the existing network of state access to justice commissions, such as California's Department of Housing and Community Development's Interagency Task Force on Homelessness and Gov. Schwarzenegger's Homeless Initiative. The ABA's task force also will consider carefully the issue of a defined right to counsel in certain serious civil matters and will develop new initiatives, policies and resources to expand access to civil justice in America.
Court programs, government task forces and private legal aid organizations are all important entities, but they require money to operate. In California, the State Bar and most regional bar associations have established charitable foundations that offer the legal community an opportunity to fulfill their commitment to access to justice through law-related philanthropy. The State Bar of California has the Interest on Lawyers' Trust Account and both a foundation and an equal-access fund to marshal the resources of California's legal community and improve the lives of indigent Californians by providing access to justice throughout the state by investing millions of dollars in legal aid organizations.
Following suit, the San Diego County Bar Association established a similar foundation 27 years ago. In 2005, the San Diego County Bar Foundation made a commitment to funding the legal needs of the homeless at the request of attorney Frank Fox, who established the Gary W. Majors Fund for the Homeless. Dedicated to funding direct legal services to homeless men, women and children, the foundation will begin making grants this fall.
California's legal community is doing much to help the homeless with their legal needs, but there is still a long way to go. There is a great trend now to provide more housing along with permanent supportive housing. As more of the homeless are able to address their first three basic survival needs of food, clothing and shelter, secondary needs imperative to their survival in mainstream society will grow. Initiatives such as homeless court, the Task Force on Access to Civil Justice and successful fundraising to ensure the delivery of services will become more important than ever.
Colin Murray, president of the San Diego County Bar Foundation, is a partner at Baker & McKenzie's San Diego office. His practice emphasizes litigation and alternative dispute resolution.
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