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In civil society, poor have measure of justice

Tuesday, March 20, 2007

  • By: RUBÉN ROSARIO
  • Organization: Pioneer Press

"A"And justice for all.'' The last three words in the Pledge of Allegiance are seared into our memories from childhood. I still know the pledge by heart. Sounds great. Wish it were true.

Consider this, gleaned from a Minnesota State Bar Association report:

One megapower Wall Street law firm that represents just a handful of corporate clients annually rakes in more than four times the total budget Congress sets aside to fund legal services to the nation's poor.

The firm earned $1.4 billion, compared to $300 million in federal funds to provide legal representation to poor and low-income civil litigants.

The scales of civil justice are in need of serious recalibration, which is partly the reason the so-called "Civil Gideon'' movement is slowly starting to take root in this country.

Gideon is the name of the plaintiff in the landmark 1963 U.S. Supreme Court ruling more than 40 years ago that guarantees a constitutional right to a lawyer, particularly for poor and low-income people accused of crimes.

There is no such guarantee in civil cases. But a call for such a measure is now starting to percolate in the nation's legal and judiciary communities.

This "movement'' remains strictly at the discussion stage here in Minnesota. But California recently approved a measure to provide legal representation to poor civil litigants in three counties as part of a legislatively approved pilot project.

Sound radical? Not really. Through law or constitution, countries such as Austria, Australia, England, Denmark, France and Germany, Italy and Spain provide such civil counsel to their poorest citizens.

The U.S. remains the only western nation that does not provide a right to such counsel. With legal services unable to meet the need, an increasing number of people are going into civil court unrepresented or representing themselves.

As a result, studies have shown, unrepresented litigants are often more likely to lose critical civil cases where child custody, home evictions, income and health insurance-related concerns are at stake.

Steve Hirsh is the access to justice director for the Minnesota State Bar Association. He believes equal access to justice, particularly in such important civil cases, is clearly not being met.

He cites a report a few years ago by the Legal Services Corporation, which determined that about 80 percent of the civil legal needs of poor people are not being met because of "chronically and grossly" underfunded legal services and pro bono programs.

"If people don't have meaningful access to the justice system, they will ultimately lose faith in it,'' Hirsh said.

That loss of faith, Hirsh and others believe, could result in people taking matters into their own hands, which is rarely a good thing.

"People don't necessarily need to win,'' Hirsh said "They just want to feel that they were given access and a fair shake, which is a commitment that our government and our Constitution makes.''

Former Vice President Walter Mondale was Minnesota attorney general when he helped garner support among 22 other state counterparts in supporting the right to criminal counsel.

He also sees a wide disparity on the civil end.

"We all know that people of modest means, or no means, suffer from illegal civil injustices often in ways not much different from those abused in criminal matters,'' said Mondale, now a senior counsel with the Dorsey & Whitney law firm.

"We have an oversupply of lawyers alongside a sadly under served lower-income American community," he said. "Is there some way we could match the two? We should look at it.''

Mondale and Hirsh believe Minnesota, which has a judicial culture that usually provides legal representation to adults and children in child protection and termination of rights cases, is more progressive than other states on this issue.

But the obstacles are substantial. They include cost, as well as deciding which civil cases - which are often complex, time-consuming and, in some situations, frankly frivolous - will deserve a legal requirement to provide counsel. Advocates support cases where a fundamental civil right or a basic human need is being debated.

There is also the matter of a 1981 U.S. Supreme Court ruling in a civil case where it concluded a right to counsel for an indigent client should only arise only in cases where the person's "physical liberty'' is at stake.

For now, the conversation is indeed worth having. I want that treasured pledge to walk its talk.

Rubén Rosario can be reached at rrosario@pioneerpress.com or 651-228-5454.

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