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Joe Surkiewicz: PJC leads effort for civil right to counsel

Thanks to TV shows that regularly feature cops reading Miranda rights to suspects, many — maybe most — Americans are under the impression that you always have a right to a lawyer.

You do, if you’ve been arrested and face jail time.

But you don’t if you’re about to, say, be evicted, lose your public benefits or enter a custody dispute over a child.

That’s where the Public Justice Center and the National Coalition for a Civil Right to Counsel come in. At two upcoming events, the organizations will provide the latest information and progress on the national (and Maryland-based) effort to extend the right to counsel to basic human-needs civil cases.

The first event is Thursday, Oct. 24, at 5 p.m. at the University of Baltimore School of Law, featuring a panel discussion by local legal experts on the potential impact of the civil right to counsel. The second is a “Justice for Breakfast” event at Brown Goldstein Levy LLP at 8:15 a.m. on Oct. 25, featuring John Pollock, a PJC staff attorney and the coordinator of the NCCRC.

“A lot of people in America think there is a right to counsel for all civil cases,” Pollock said. “And a lot of other people think there’s never a right in a civil case. The truth is somewhere in between.

Achieving a right to counsel in all criminal cases started with “took 40 years, and we’re really just towards the beginning of the process on the civil side,” he said.

States to varying degrees recognize the right to a lawyer in certain types of cases, either by legislation or when their courts find the right under their state constitution.

“In civil cases, the U.S. Supreme Court recognized a right to counsel in juvenile delinquency cases. Then the court held a right to counsel for a prisoner being transferred to a mental health facility,” Pollock said. “But then the court said in 1981 that appointment of counsel in termination of parental rights is on a case-by-case basis. It’s not black and white.”

However, even in 1981, 33 states had said there was a right to counsel for parental termination — and now, 45 states do. “The court didn’t stop state legislatures and courts from finding the right to counsel,” Pollock noted.

Besides termination of parental rights, a majority of states guarantee counsel to indigent people in cases involving child abuse and neglect, civil commitment (where there’s a risk of someone hurting themselves), quarantine for dangerous disease, guardianship, civil contempt (for failure to pay child support), and when a minor wants to bypass parental approval to obtain an abortion.

Lots of states also have a right to counsel for cases involving paternity, adoption, confinement of sexually dangerous persons after release from prison (surprisingly, a civil proceeding), and adult protective proceedings for neglect or abuse.

“Only one or two states provide the right in private custody disputes, domestic violence and for public benefits,” Pollock added. “Two years ago, the Supreme Court said found no right to counsel for a parent jailed for a year for failing to pay child support, at least when the government is not the plaintiff. That was a step back at the federal level. But the states aren’t obligated to follow the Supreme Court in passing laws or ruling on their own constitutions.”

For the NCCRC, the emphasis is not on all civil cases, but on basic human needs. The group follows the five elements of the American Bar Association’s definition: shelter, safety, sustenance, health and child custody.

“We have a lot of work to do,” Pollock said. “Not one state has recognized a right to counsel in shelter, and there’s little protection for public benefits, sustenance or health.”

Currently, the NCCRC has more than 240 participants in 36 states.

“We assist different types of actions in every state,” Pollock said. “There’s no single solution. The efforts are incremental and locally driven. There are no one-size-fits-all solutions. Local people make the decisions. It’s not top-down.”

The NCCRC provides support to all efforts, whether in education (like the two upcoming events in Baltimore), litigation, legislation, or research to show the impact of providing counsel.

“Research shows the cost-savings involved from preventing evictions, saving public benefits, keeping people out of prison and emergency rooms, and reducing police interventions,” Pollock said. “Right now, our country spends a lot of money on the back end. Let’s instead spend money on the preventative side.”

But it’s not just about saving money.

“We don’t cede the high ground,” Pollock said. “It’s the right thing to do. If people go through the legal system and lose their basic rights, they lose faith in the system. It means the courts aren’t there for them. The legal system only works if people believe in it.”

The panel at UB Law will first give an overview of the current state of efforts, then talk about the Maryland Access to Justice Commission, “which has done some exciting work by putting a dollar amount on the cost of creating the right to counsel and created a plan on how the right would be implemented,” Pollock said.

Also at the event, Laurie Ruth of the Women’s Law Center will discuss the need for counsel in custody cases, while Kay Harding of Maryland Legal Aid will address housing.

Pollock is upbeat about efforts to expand the right to counsel.

“Nationwide, a ton of cases are going on,” he said. “Enthusiasm is high. I’ve been doing this almost five years, and our coalition’s been at work for 10. [The right to counsel in criminal cases] took 40 years. We need to recognize the small but important steps and, more importantly, that attitudes have changed. The issue is being taken seriously.”

For more information for the UB Law event, go to www.publicjustice.org. For reservations for the free Justice for Breakfast event, email brocke@publicjustice.org.

Joe Surkiewicz is director of communications at the Homeless Persons Representation Project in Baltimore. His email is jsurkiewicz@hprplaw.org.