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Frosh forms panel to improve access to civil justice

Attorney General Brian E. Frosh says there’s likely to be a "tsunami" of eviction cases caused by the economic devastation fueled by the coronavirus.

Attorney General Brian E. Frosh says there’s likely to be a “tsunami” of eviction cases caused by the economic devastation fueled by the coronavirus.

Providing a right to counsel for indigent defendants in civil litigation will be a top agenda item for a task force Maryland’s attorney general has convened amid the economic havoc wrought by the COVID-19 pandemic and nationwide calls for racial equality ignited by the death of a black man in Minneapolis police custody.

Attorney General Brian E. Frosh said Thursday that he formed the 41-member panel to develop ways to ensure equal access to justice for the indigent and minorities in anticipation of a “tsunami” of eviction cases when Maryland courts, closed to stanch the virus, slowly reopen.

Many of these tenants have no hope of paying their rent – much less a lawyer — due to pandemic-related job loss and hiring freezes, with a disproportionate number of these tenants being minorities, the attorney general added.

Neither the U.S. Supreme Court nor the Maryland Court of Appeals has found a constitutional right to representation in civil cases, though the justices found a right to counsel for criminal defendants in their landmark 1963 ruling in Gideon v. Wainwright.

Providing a statutory right to representation in litigation, dubbed “Civil Gideon,” has been discussed in the Maryland General Assembly but quickly dismissed as too expensive for the state, which spends more than $105 million annually for a public defender’s office to handle indigent criminal cases.

Frosh, who chaired the Senate Judicial Proceedings Committee before becoming attorney general in 2015, said the cost argument remains strong but that civil Gideon is “on the top” of the task force’s list of ways to ensure equal access to justice for the indigent and without regard to race, Frosh said.

“It’s obviously very costly, but when you’re talking about people losing their homes to eviction or foreclosure or losing their jobs or losing their children it obviously is extremely important for them to have representation in court, so civil Gideon is going to be one of the things that we look at,” Frosh added. “If we can find the money, I personally would want to do that in a heartbeat.”

In addition to a spike in landlord-tenant cases, the health and economic hardship wrought by the pandemic will also spur a rise in legal disputes over medical expenses, creditors’ claims and the denial of welfare benefits, Frosh said in announcing the formation of the Maryland Attorney General’s COVID-19 Access to Justice Task Force.

The panel plans to issue recommendations for ensuring equality for the indigent and minorities to the General Assembly in December, in advance of the legislature’s 2021 session that begins in January. The task force intends to convene as a full body at least three times before issuing the recommendations, with its subcommittees meeting much more often, said Frosh, the panel’s chair.

Retired 4th U.S. Circuit Court of Appeals Judge and former Baltimore City Solicitor Andre M. Davis will serve as a vice chair with Reena K. Shah, executive director of the Maryland Access to Justice Commission.

Shah called it “disempowering and unjust” for the indigent not to have legal representation in civil cases.

“We know that Marylanders lose their civil cases and therefore get evicted, have their wages garnished, do not receive life lines like food stamps or unemployment benefits not because they did anything wrong but because they did not have the legal information or help they needed, and this already happened before COVID-19 hit,” Shah said Thursday. “We are not talking about inconveniences. We are talking about miscarriages of justice on a scale and magnitude that no one in power should allow.”

Task force members also include Maryland Public Defender Paul B. DeWolfe; University of Baltimore School of Law Dean Ronald Weich; University of Maryland Francis King Carey School of Law Dean Donald Tobin; Senate Judicial Proceedings Committee Chair William C. “Will” Smith Jr., D-Montgomery; House Judiciary Committee Chair Luke Clippinger, D-Baltimore City; Maryland District Court Judge Stacy A. Mayer of Baltimore County; Robin Murphy, executive director of Disability Rights Maryland; Former Maryland Court of Appeals Chief Judge Robert M. Bell; and former Maryland Attorney General Stephen H. Sachs.

Members of Maryland’s congressional delegation are serving as advisers to the task force.

Wilhelm H. Joseph Jr., a task force member and executive director of Maryland Legal Aid, said the panel must work to “expand” the ability of his firm and other legal organizations that provide representation to indigent civil litigants. However, he did not specifically mention providing a statutory right to such representation.

Joseph said Marylanders, as well as all Americans, are facing a “triple trap” of a health crisis from the virus, a financial crisis from the related business closures and an equal justice crisis laid bare by the May 25 death of George Floyd.

“Not words, not studies, not discussions alone” will help the indigent and minorities have access to legal representation, Joseph said in calling for “concrete action” from the task force.

“The need will increase and we are ready to step up and do our part,” Joseph said. “Our country needs it, time demands it, we can do it.”


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