General Assembly will consider right to counsel for tenants, lawmakers say

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The Maryland General Assembly will consider legislation this coming session that would give financially strapped tenants facing potential eviction a right to counsel at their court hearings, leaders of the legislature’s two judiciary committees said Tuesday.

Funding for the legal representation could be raised in part from a statutory increase in the landlords’ filing fees in eviction cases, added Senate Judicial Proceedings Committee Chair William C. “Will” Smith Jr. and Luke Clippinger, who chairs the House Judiciary Committee.

Both men, however, balked at extending a statutory right to counsel in other civil proceedings, saying the General Assembly would not back the millions of dollars that extension would require, especially amid the economic tailspin and more pressing financial demands wrought by the pandemic.

“The bottom line: It’s the money,” said Smith, D-Montgomery.

“We would like to have it,” he added, referring to a broad statutory right to counsel. “It’s just difficult to fund. That’s the reality.”

Clippinger said “the question does become one of funding.”

However, the Baltimore Democrat added that the statutory right “a discussion we need to have.”

Smith and Clippinger delivered their remarks at a Maryland State Bar Association session in support of the Access to Justice Commission, an MSBA partner that encourages lawyers to provide free representation to low-income residents in civil matters and to raise money for those efforts.

The need for the pro bono service and funding for free legal services has grown during the pandemic, as unemployment and business shutdowns have soared amid the state’s efforts to stanch the spread of COVID-19.

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 Gideon v. Wainwright.

Providing a statutory right to representation in litigation, dubbed “Civil Gideon,” has often been discussed in the General Assembly but has been 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.

Smith, in a nod toward Civil Gideon, said much of the national discourse this year has focused on police and criminal justice reform to the exclusion of correcting inequities in civil litigation that benefit those who can afford attorneys and harm those who cannot, many of whom are minorities.

“Representation means all the difference” in civil cases, Smith said. “It is dispositive of the outcome. It is the deciding factor.”

Attorney Ward B. Coe III, who chairs the commission, welcomed the lawmakers’ call for a statutory right to representation in litigation albeit limited to landlord-tenant cases. The need for Civil Gideon is especially acute as more people cannot afford to pay their rent, mortgages or other debts, Coe said at the MSBA event held by video conference.

“Think how much it is costing us now not to do it,” added Coe, of Gallagher Evelius & Jones LLP in Baltimore.

He urged his fellow lawyers to provide free assistance to civil litigants in need because it should be “civil justice for all, not just for those who can afford it.”

Maryland Attorney General Brian E. Frosh formed a 41-member task force in June to supplement the commission’s work in promoting access to justice amid the pandemic. Frosh said his COVID-19 Access to Justice Task Force secured $8.7 million in funds for the financially strapped Maryland Legal Services Corp., which provides grants to groups providing civil representation.

Speaking at the MSBA event, Frosh urged his fellow lawyers to provide representation for indigent civil litigants.

“It’s not flashy work,” Frosh said. “It’s critical work if we want to accomplish systemic change.”