The right to counsel in civil cases: Sean Malone (opinion)

December 23, 2014

Earlier this year, the 50th anniversary of the “War on Poverty” prompted political debate. Although few could agree on the initiative’s success or how to rejuvenate it, no one seemed to dispute the idea that people trying to escape poverty deserve as many opportunities as possible.

One simple, cost-effective way to increase opportunities for low-income individuals is to assure them access to legal representation when their basic needs are threatened.

For decades, indigent criminal defendants have had a constitutionally recognized right to a lawyer appointed and paid for by the state. But there is no comparable right in civil cases, even when issues like housing, health care and child support are at stake.

As a result, most poor people confront our civil justice system alone, appearing in court for life-changing proceedings with little guidance — or failing to appear at all. While pro se litigants are often ineffective advocates who struggle to navigate the judicial bureaucracy, not many lawyers are able and willing to work for free.

The Legal Aid Society of Cleveland, a nonprofit firm of 40 attorneys, ably served 22,000 pro bonoclients in 2013 with the support of donors and volunteer attorneys throughout Northeast Ohio. Legal Aid lawyers prevented evictions in 98 percent of their cases in 2013 and foreclosures in 76 percent of their cases. Legal Aid increased clients’ assets and decreased their debt by a combined $25 million. But overwhelming need forces Legal Aid to turn away roughly 50 percent of those who seek its help. Other potential clients never learn that Legal Aid exists.

State government can help. Like most states, Ohio appoints and pays counsel for low-income litigants in a few civil matters, such as involuntary detentions on mental-health grounds and guardianship proceedings for individuals alleged to be incompetent.

Ohio offers no such assurances in many other kinds of cases. There is no right to counsel for low-income individuals facing a foreclosure lawsuit or the revocation of Medicaid, unemployment, or disability benefits. Nor is there a right to counsel in domestic-violence disputes or cases adjudicating child custody and support obligations. Even worse, these rules are derived from inconsistent, outdated statutes and court decisions.

As the new General Assembly sets its priorities for 2015, lawmakers should prepare a bill that: (1) clarifies and expands the “basic needs” cases in which litigants have a right to appointed counsel; and (2) sets aside enough money to make that right worthwhile. Funds could be used to appoint Legal Aid attorneys or private practice attorneys with relevant experience. A screening process similar to that already used by Legal Aid could verify that clients are indigent and lawyers are qualified.

Funding appointed counsel in basic-needs cases is likely to save the state money over time. Failing to invest in legal representation for low-income individuals facing life-changing events only creates more expensive problems. Those who lose a foreclosure case can end up homeless, dependent or incarcerated, leaving a vacancy that destabilizes neighborhoods. Children of parents who lose custody disputes often enter the foster-care system. People without medical benefits frequently seek health care in emergency rooms. Incidents of domestic violence drain law-enforcement resources. Lawsuits are also more efficient with attorneys involved, and a less-burdened judicial system is good for business.

This issue should have bipartisan appeal. Gov. John Kasich has spoken passionately of helping “the least among us,” those who “live in the shadows.” National leaders of both parties have supported the Legal Services Corporation, which was created in 1974 to fund Legal Aid services. Last month, President Barack Obama’s secretary of labor, Thomas Perez, addressed Legal Aid’s annual luncheon in Cleveland . In 2013, Senator Portman keynoted the same event.

Ohio can be a leader in securing representation for the poor in civil cases involving basic needs. Broadening the right to counsel would be a small but worthy step towards a more just and prosperous society. It would not only ease state government’s burdens but also offer a spark of hope to those living in the shadow of poverty.

Sean Malone is an attorney with Kohrman Jackson & Krantz PLL and a member of the Legal Aid Society of Cleveland’s Pro Bono Committee.

Cleveland.com article published on December 23, 2014