Sandy Rosenberg
While the $3 million pilot program would have ‘a fiscal impact,’ Del. Samuel I. ‘Sandy’ Rosenberg says, there is also a fiscal impact from unrepresented litigants in family law cases — ‘not only on the family but on the state.’ (The Daily Record/Maximilian Franz)

Attacking the pro se problem

Proposed legislation would provide counsel in more custody disputes

State-funded attorneys would represent indigent parents in child custody disputes in Baltimore, Prince George’s County and the lower Eastern Shore under legislation likely to be proposed during the 2015 General Assembly session.

The anticipated legislation was spurred by a Maryland task force’s recommendation calling on the state to conduct a pilot project over the next four years in those jurisdictions at a total cost of about $3.03 million.

“There is a fiscal impact, but at the same time the existing situation where people far too often are not represented has a fiscal impact — not only on the family but on the state,” said Del. Samuel I. “Sandy” Rosenberg, who expects to introduce the legislation.

“It’s also a matter of equity and fairness,” added Rosenberg, a Baltimore Democrat and task force member. “There is a negative impact on the individuals who are not represented. It’s just a matter of fundamental fairness that they have legal counsel and their rights are represented.”

The Task Force to Study Implementing a Civil Right to Counsel in Maryland issued its report Oct. 1. Under the task force’s recommendation, the pilot program would be implemented in the lower Eastern Shore counties of Dorchester, Somerset, Wicomico and Worcester, as well as Baltimore city and Prince George’s County.

The task force recommended annual funding of $757,500 for the pilot program in each of the next four years.

But Sen. Robert A. “Bobby” Zirkin, a task force member, said he would not support legislation calling for state-supported counsel in child custody cases without “full” legislative hearings that examine the scope of the lawyer’s representation and its fiscal impact on the state.

For example, family law cases are seldom just about child custody, raising the issue of whether the state would also underwrite the lawyer’s representation on ancillary issues such as child support, alimony and the division of marital property. In addition, child custody cases can last years as the children reach the age of adulthood, said Zirkin, D-Baltimore County, who abstained from the task force’s recommendation.

“The devil is always in the details,” said Zirkin, a member of the Senate Judicial Proceedings Committee.

“It’s a very complex issue,” he added. “We’ll have a full open hearing. I’m not going to prejudge this or any other matter.”

Family law attorney Mary Ellen Flynn, who was not on the task force, said the scope of representation is a concern that could be largely resolved by making it clear to the client and with the consent of the court that the attorney’s role is limited to the custody issue. However, a single custody case can get very expensive, as child psychologists and education consultants are often called to testify, said Flynn, of Andalman & Flynn P.C. in Silver Spring.

“How much are you obligated to do?” Flynn asked.

“What is considered full representation of the client? I don’t have any answers,” she added. “I’m just raising the issues that people need to think about.”

Supplementing Judicare

Under the task force recommendation, the pilot program would supplement the Judicare Family Law Project, in which private lawyers are paid a reduced fee — currently, $80 an hour — to take high-stakes, contested family litigation. Hours are capped at 20, but if the attorney is willing to work the next five hours pro bono, and funds are still available, the program may then pay for up to an additional 10 hours.

A 2011 study found that contested child-custody cases handled by attorneys in the Judicare Family Law Project cost an average of $1,046 per case, an amount that Flynn called “very low bono” for child custody lawyers.

“That comes nowhere near an attorney’s time in any custody case,” Flynn added.

The money for the statewide program comes out of the Maryland Legal Services Corp.’s budget. In fiscal 2013, MLSC awarded $1.57 million in Judicare grants, the task force report stated.

MLSC Executive Director Susan M. Erlichman, a task force member, noted in support of the recommendation that Maryland case law requires that counsel be provided to indigent people at initial bail hearings.

To a parent, having legal representation in a custody case is “as or more important than if you are facing a weekend in jail,” she said, “The right to be able to care for your child is something that everyone can appreciate the fundamental importance of.”

Erlichman said state-supported counsel in child custody cases would enable MLSC to channel more grant money to other legal services, such as those assisting low-income litigants in housing and landlord-tenant issues.

“Certainly we would hope this [funding] would be able to allow the system to expand the good work that is already being done,” she added. “Family law is the largest, most significant area of need, closely followed by housing issues,” she said.

Meanwhile, just over 2,000 lawyers, or 5.6 percent of the Maryland bar, say family law is their primary practice area, the task force’s report noted.

To beef up those ranks, the report said, the state should support efforts by the Pro Bono Resource Center to expand its family law courses statewide. Rather than paying a fee to take the course, attendees could accept a family law case pro bono, the task force recommended, noting a similar educational program run by the Montgomery County Bar Foundation.

In making its recommendation, the task force noted that indigent parents are provided a public defender when they are at risk of having their parental rights terminated due to abuse or neglect in Children In Need of Assistance cases.

“However, when a parent is similarly at risk of losing the ability to care for a child because of contested custody litigation, that same parent is not entitled to a publicly funded lawyer,” the task force report stated. “Low-income parents must navigate the courts on their own, and they do so in record numbers.”

If Maryland does enact a statutory right to counsel in child-custody cases, it would not be the first. New York law provides counsel to indigent parents “seeking custody or contesting the substantial infringement of his or her right to custody of such child, in any proceeding,” including on appeal, the report stated.

“There’s a need for it,” Flynn said of state-supported counsel in child custody cases. “The funding of it may be the biggest obstacle.”

The task force also recommended state funding of $1.2 million in each of the next four years, a total of $4.8 million, to support existing legal-assistance programs that provide counsel to low-income litigants in civil domestic-violence cases. These groups include the House of Ruth and the Women’s Law Center.

The task force’s work is separate from the state Commission on Child Custody Decision Making, which has a statutory deadline of Dec. 1 to issue its report to Gov. O’Malley and the General Assembly. The commission’s mandate includes recommendations on ways to make custody orders and modifications fairer, more uniform and equitable.

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