The American Bar Association litigation section's annual conference met in Atlanta last week to tackle an ambitious issue: providing publicly funded legal counsel for people who can't afford a lawyer but face adversarial proceedings threatening their shelter, livelihood, child custody, health or safety.

Expanding access to civil justice has become a national movement in the last five years, said one participant, Debra Gardner, the coordinator of the National Coalition for the Civil Right to Counsel, which launched in 2003. But conference participants, who included a former and future ABA president, acknowledged that they've got a long road ahead of them.

"It will take years for this movement to succeed," former ABA President Michael Greco told participants. Greco got the ABA on the bandwagon during his tenure two years ago, when he convened a task force to assess poor people's access to legal counsel nationwide.

At the group's 2006 annual meeting, ABA delegates, after hearing the task force's findings that only a small minority of low-income Americans receive civil legal counsel in cases where their most basic well-being is at stake, unanimously passed a resolution advocating expanding public funding of legal services in cases where basic human needs are at stake.

Robert Rothman of Arnall Golden Gregory, the current chairman of the ABA's 75,000-member litigation section, made the right to civil counsel the topic of the section's annual meeting, held Thursday and Friday at the Grand Hyatt in Buckhead, Ga. Rothman said he wanted to convene thought leaders on the topic to brainstorm ways to turn the ideal of justice for all into a reality.

The ABA's president-elect, Carolyn Lamm, pointed out that even though the Supreme Court established a constitutional right to counsel in criminal cases in the landmark 1963 decision Gideon v. Wainwright, state public defender programs remain underfunded. The tanking economy will make it even harder to get public money for legal aid at the local, state and federal level, said Lamm, while traditional sources of funding are drying up. Interest on Lawyers Trust Account Funds have dropped precipitously in many states due to dwindling real estate closings, she pointed out.

The federal Legal Services Corp., the primary funder of legal aid programs, was due for a $40 million budget increase, but that has been derailed by the financial crisis, said its board chairman Frank Strickland of Strickland Brockington & Lewis, one of the Atlantans in attendance. In Strickland's six years on the LSC board, he said, the budget has increased by only about $20 million - to $350.5 million.

By contrast, total legal spending in the United States is $277 billion, according to research by Gillian Hadfield, a professor of law and economics at the University of Southern California.

"We're not making any progress. You could argue we're going backward,"
Strickland said.

That compares to a budget of $321 million in 1981, when the LSC's support was at its peak in Congress, before President Reagan cut funding and increased restrictions on lawyers receiving LSC funding - including prohibitions on political lobbying, class actions and caps on legal fees they can receive from the other side in cases they win.

According to a legal needs survey released by the LSC in 2007, the legal aid groups it funds turn away half those who seek their assistance. The study also found that these groups are helping only about 20 percent of potential clients whose incomes are 125 percent or less of the federal poverty level.

In 45 European countries, Canada and many other countries, indigent people have had a right to a state-funded lawyer in civil matters for decades, said several participants.

Often, civil legal services are provided by non-lawyers in these countries - another hurdle in the United States, where the ABA and state bar groups guard against the unlicensed practice of law.

In the 1981 decision Lassiter v. Department of Social Services, the Supreme Court ruled 5-4 that poor people do not have an absolute 14th Amendment right to due process when they face losing custody of a child to the state. That decision chilled the civil Gideon movement. Ensuring that poor people receive due process in matters where their child custody rights, housing, employment, health or safety are at stake has remained a piecemeal effort by legal aid groups, public interest law firms, the private bar's pro bono efforts and - to a widely varying degree - local and state governments.

The conference participants agreed that lawyers are sold on the importance of due process in high-stakes civil matters far more than the general public. Some advocated using the courts to advance their cause, by building up a body of case law at the local and state levels - and by finding another Lassiter to take to the Supreme Court.

Others thought lobbying state legislatures was a better bet, expressing concern that litigating to establish that poor people have a right to state-funded civil legal counsel would not further the cause in the court of public opinion.

None of the participants thought Lassiter would be overturned in the near future, and none advocated pursuing the matter at the federal level. The ABA resolution recommends working at the local and state level in places where headway seems most likely.

Fulton County Superior Court Judge Gail Tusan offered the predominantly academic gathering the real world example of Fulton Superior's family court, where she estimated about one third of those appearing before her do not have a legal counsel. The family court - which started as an ABA pilot program - has instituted several procedures to help pro se litigants navigate the judicial process. Another Atlantan, Kasim Reed, who is a state senator and a partner at Holland & Knight, exhorted participants to get out of the ivory tower and involved in local politics.

Lawyers must advocate for civil Gideon legislation with their state legislators for change to happen, said Reed.

He challenged the law professors and other lawyers present to each "adopt a legislator" on civil Gideon and "become much more direct about what we want." He noted that President-elect Barack Obama received strong support from lawyers. "The time has come for us to start thinking of important ideas and putting them out there," he said.

Meredith Hobbs is a reporter with Fulton County Daily Report, a Recorder affiliate based in Atlanta.
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