Civil Gideon Symposium mobilizes legal community behind equal justice in law

Issue November 2007 By Kelsey Sadoff

The Oct. 4 Civil Gideon Symposium, held at the MBA and co-sponsored by the BBA, highlighted five panelists who outlined potential program strategies for this new Massachusetts legal venture. The high-energy symposium was a first step in mobilizing members of the Massachusetts legal community behind a program that will ensure that individuals who cannot afford counsel are provided legal representation in civil cases.

The civil Gideon venture is intended to focus primarily on offering legal representation for the under-privileged in civil cases such as housing, domestic, family law, immigration and consumer disputes.

“In democracy, all citizens ― rich or poor ― should have counsel at his/her side to secure basic human rights,” said panelist Michael S. Greco, past president of the American Bar Association and Massachusetts Bar Association. “There should be a right to counsel on the civil side that is parallel to the right on the criminal side.”

Greco believes that it is the responsibility of lawyers to give life to equal justice in the law. Civil Gideon is an opportunity to fulfill a promise that, at this moment, is not upheld, he said. According to one panelist, currently 70 to 80 percent of the legal needs of the poor go unmet, and in Massachusetts, the time has come for the legal community to make sure that the civil freedoms of the underprivileged are not compromised.

David Hall, professor at Northeastern University School of Law and member of the board of directors of the Legal Services Corp., noted that there is little integrity to the justice system without civil Gideon. “Without accurate representation of the poor, the protections in our legal system become superficial,” Hall said, mentioning that the Massachusetts legal system will be judged by how it represents the poor.

Discussion among panelists included a minor terminology debate focusing on the use of “civil Gideon” as a program name. Hon. Herbert P. Wilkins, retired chief justice of the Massachusetts Supreme Judicial Court and chair of the Massachusetts Access to Justice Commission, questioned the name “civil Gideon” because he believes that it is too narrow in its representation of the program at hand. “Civil Gideon references a constitutionally based remedy and may not be what we are focusing on,” he said. “We are focusing on statutes.”

Fellow panelist, Michael Dsida, deputy chief counsel of the Children and Family Law Program, spoke about various administrative aspects that could potentially become a part of the civil Gideon program. Dsida noted that legislative standards, initial training of substantive and trial skills for participating lawyers, mentoring systems, certification systems, continuing education programs implemented by regional coordinators and a system of complaint investigations have contributed to the Children and Family Law Program’s success and could eventually create results for civil Gideon.
Professor Russell Engler of the New England School of Law, proposed all attendees adopt three assumptions before moving forward with the creation of a civil Gideon program. Engler believes that in order for this program to be successful at the basic level, all participating members should believe that nothing short of counsel protects many important civil rights.

Members must also bring to the program the belief that, despite the efforts of various legal aid programs, there still exists a significant gap between individuals where counsel is not available. Finally, members must be willing to accept that there is a “package of worries” connected with creating a civil Gideon program, including identifying the cases with which civil Gideon will be associated.

Engler urged attendees to contemplate how terminology and resources will affect civil Gideon. Funding for civil Gideon has been ardently debated among members of the legal community, many of whom are worried this venture will take money away from other necessary Massachusetts’ programs.

“The most important aspect is consensus on this issue,” said Engler. “It is not appropriate to compare costs of legal services if nothing short of counsel will do the trick,” he said. “It is irrelevant to talk about lesser forms of service. We can’t allow gross discussion to go forward without looking at the alternative decision’s costs, such as the cost of homelessness.”

Wilkins also mentioned that in order for civil Gideon to succeed, increased funding — other than through the Legislature — would be important. Doing everything possible to get lawyers to take on pro bono cases, training lay people, passing new statutes, unbundling cases so one lawyer handles only one part of a case, and ghost-writing where lawyers can help defendants write legal briefs, will all help the fundamental goal of identifying ways civil Gideon can become successful.

Attendees discussed the best avenue to pursue in coordinating the various efforts many different sections of the legal system will take to implement civil Gideon. Jeffrey N. Catalano, MBA Civil Litigation Section Council chair, expressed concern about how to keep section members abreast of civil Gideon decisions.

Wilkins proposed having a leadership team focus all other group actions, while forums and Web sites were discussed as potential communication tools available to keep the legal community aware of civil Gideon advancements.

As Greco acknowledged, “Where there is a will, there is a way. There is a will to implement civil Gideon in this state and now we must find a way.”