Michael S. Greco
President, American Bar Association
Keynote Address
23rd Annual Edward V. Sparer Symposium
Civil Gideon: Making the Case
University of Pennsylvania Law School
Philadelphia, Pennsylvania
March 28, 2006
Thank you, Dean Fitts, for your warm introduction. I thank the University of
Pennsylvania Law School, the Greater Philadelphia Law School Consortium, and the
Philadelphia Bar Association for sponsoring this important symposium.
It is truly a pleasure to be here today with so many dedicated advocates and
scholars to discuss the movement for a civil right to counsel. I commend you for your
work on behalf of those who are most in need of legal assistance – work that not only
vindicates legal rights, but also provides the priceless gifts of hope and dignity.
The importance of ensuring access to legal services for the poor cannot be
overstated. As all of you know, the ability to address civil legal needs with the help of a
qualified lawyer can make the difference between stability and poverty, between hope
and despair. In the areas of education, immigration, housing, health, employment, and
domestic violence, to name only several, legal services and pro bono representation
represent a lifeline to those who are most in need.
For doing this, and so much more, the providers and supporters of legal services
across the country deserve the thanks and appreciation of the entire organized bar, and
indeed of the entire nation. But legal services and pro bono attorneys, and the people
they serve, need much more than thanks and moral support. They need a new
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paradigm for the delivery of legal services to the poor. And that’s why we’re gathered
here today – to discuss the most ambitious effort of the past forty years to expand
access to justice in America.
The growing movement to recognize a defined right to counsel in certain civil
cases is a reflection of the commitment that you and your colleagues across the county
have to realizing equal justice under law and guaranteeing due process for all. I am
proud to support this movement by giving the highest priority to civil justice issues within
the American Bar Association.
When I became President of the ABA last August, one of my first acts was to
create the ABA Task Force on Access to Civil Justice. The Task Force is chaired by
Justice Howard Dana of the Supreme Judicial Court of Maine, whose work as a
member of the Legal Services Corporation Board under two Presidents is known to
many of you. I gave the Task Force two distinct charges: (1) to promote and expand
the successful network of state-based access to justice commissions throughout the
US; and (2) to examine the feasibility of a defined right to counsel in certain serious civil
matters.
The Task Force has been hard at work over the past eight months; I have had
the opportunity to participate in their meetings and have been tremendously impressed
by the intellectual heft, commitment and determination of this group. The Task Force is
fortunate to have leading judges, lawyers, scholars and leaders of the access to justice
community contributing to the work on a civil right to counsel.
I thank everyone who is contributing to the American Bar Association’s work in
this area, and I urge all of you to give close attention to the policy proposals that the
Task Force is currently drafting. Those policy recommendations, which will be
presented to the ABA House of Delegates at our Annual Meeting in Hawaii this August,
focus on two areas:
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The first is a set of Principles of a State System for the Delivery of Civil Legal Aid,
designed to ensure the delivery of high-quality, coordinated, and uniformly available civil
legal aid services to a state’s low-income and vulnerable populations.
The second policy recommendation focuses on a defined right to counsel in civil
cases. The draft resolution, as it currently stands, urges the provision of counsel “as a
matter of right at public expense to low income persons in those categories of
adversarial proceedings where basic human needs are at stake, such as those involving
shelter, sustenance, safety, health or child custody.”
These recommendations will not become official policy of the ABA until they are
adopted by our full House of Delegates, but I am hopeful that they will receive favorable
consideration in light of the growing momentum behind a civil right to counsel and the
ABA’s historic and continuing commitment to access to legal representation for all.
The ABA Task Force and the ABA Standing Committee on Legal Aid for Indigent
Defendants are working with the recently-formed National Coalition for a Civil Right to
Counsel to build support for this concept. The ABA is also drawing on the experiences
of advocates across the country – from Maryland to California and Texas to Washington
State – who are seeking judicial or legislative recognition of a civil right to counsel.
The ABA also has representatives on a drafting committee of the National
Conference of Commissioners on Uniform State Laws that is producing a new act on
uniform representation of children in abuse and neglect and custody proceedings. The
latest draft of this uniform act would require all children in such proceedings to be
represented by counsel – in addition to any non-lawyer advocates or guardians ad litem
who are appointed by the court to protect the interests of minor children.
I would add that in addition to pursuing a civil right to counsel and new strategies
to improve access to justice at the state level, we must continue to advocate for
increased funding of the Legal Services Corporation as the principal national funding
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source for local legal aid programs. The President’s Fiscal Year 2007 budget request to
Congress would cut LSC funding by $20 million. We must not only prevent that cut, we
must press for an increase in the LSC’s budget. LSC now receives about $326 million.
If the LSC appropriation had not increased, but had merely kept up with inflation since
1995, the LSC would now be receiving $490 million. So we can see how far behind it
has fallen. While we all recognize the pressures on the federal budget, turning away
more than half of all low-income Americans who go to LSC-funded programs for
desperately-needed legal assistance is unacceptable, and it is shameful.
Most lawyers understand that as the demand for legal services, pro bono
representation, and other legal assistance for those who are most in need continues to
grow, so must our national commitment to making adequate resources available. I
believe that most lawyers agree that we need new strategies to meet the 70 to 80
percent of the legal needs of poor people in this nation that continue to go unaddressed
year after year. Lawyers also understand that competent counsel is absolutely
necessary for people facing serious legal problems to have any realistic chance of
vindicating their rights.
And we know from studies, such as the one cited by Laura Abel and her
colleagues at the Brennan Center for Justice in a recent amicus brief in a housing case
in New York, that litigants with counsel are much more likely to achieve a successful
outcome than those who appear pro se. (See Robinson v. Martinez, Supreme Court of
the State of New York, Appellate Division, Index No. 401128/98.) I believe that it is safe
to predict that similar studies in other contexts would bear out similar results – that the
assistance of counsel is crucial to achieving a just outcome.
It is also now evident that the problem of addressing unmet legal needs in our
country is larger than the legal profession can solve by itself. The organized bar and
individual lawyers can make great strides, but we simply can’t do it alone. We need a
national commitment to equal justice for all that transcends the sometimes insular world
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of the legal profession to include advocates for social and economic justice, and basic
fairness, in this struggle.
It is no secret that our nation trails far behind other major industrialized countries
of the world in providing meaningful help to poor people with legal problems. Our laws
and jurisprudence lag far behind those of other Western nations in this regard. The
Constitutions of the Netherlands, Italy and South Africa, to name only a few, explicitly
recognize a right to counsel for the indigent in civil cases when substantial injustice
would otherwise result. In addition, beginning in the late 1800s, most other Western
nations recognized some form of right to counsel in civil cases through legislation or
court decisions. When one compares our expenditure of public resources to address
the legal needs of the poor in the United States with systems in place in other Western,
industrialized nations, we are shamed.
I’m sure that many of you are familiar with the excellent research performed by
Justice Earl Johnson of the California Court of Appeals -- which I alluded to earlier -- but
I think his primary findings bear repeating. He has conducted extensive studies of legal
aid systems internationally and concluded that as of 1999, the least generous other
industrial democracies – France and Germany – spent 2.5 times more of their gross
national product than the United States did in serving the civil legal needs of lower
income populations; England spent 17 times more of its GNP than the US to provide
access to justice for its poorer people. According to Justice Johnson, if the United
States were to match the French/German approach, we would be spending about $1.6
Billion annually on legal services for the poor; and if we followed England’s lead we
would be spending about $10 Billion dollars annually on legal services for the poor.
It has never been clearer to me that the deficiencies in our delivery of legal
services to the poor require bold action, in the form of a serious national discussion
about access to counsel for poor people, whether they are facing a serious criminal
charge or an equally serious civil matter. It is premature and unrealistic to talk about
providing a lawyer in all civil legal matters involving lower-income persons. But in
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matters where a poor person’s family, sustenance, health or housing is threatened by a
legal problem, our system of justice must provide necessary legal assistance.
If we are to meet the goal of equal justice for all, such critically important
assistance cannot be rationed by the teaspoonful. It should not be subject to long
waiting lists, limited capacity and narrow legal aid priority lists that increasingly are
based on a triage approach.
While the concept of a civil right to counsel raises complex issues, the driving
force behind the idea is a simple one: ensuring that everyone in our nation, the world’s
most bountiful country of hope and promise, has an advocate at their side when facing
the denial or loss of those things that are basic to human survival: shelter, food, and
keeping family and health intact. No one in our country should have to face the denial
of legal or governmental rights affecting those basic needs without counsel to help
them. No one.
As I have traveled the country, and the world, over the past year, I have spoken
in these terms to many audiences about the need to give serious consideration to a civil
right to counsel. You should be heartened to know that I have met with a uniformly
warm reception, even in some places where you might not expect it.
But we must take this idea – this movement – beyond the legal profession. Many
lawyers are fully supportive of a right to civil counsel – we need to move beyond the
choir and start preaching to those who are either unfamiliar with or skeptical about this
idea. I believe that the case can be made for such a right, but we must to be honest
with ourselves and others about the scope of the challenge in implementing it and the
costs associated with it.
There is no doubt that this is a massive and daunting undertaking, and that a
long-term, concerted effort by the organized bar, citizens’ and public interest groups,
supportive elected officials, religious institutions, and others will be necessary for it to
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bear fruit. But the struggle is worth it, for nothing else defines our national commitment
to equality more clearly than our success – or failure – in guaranteeing that everyone in
our nation can have their legal rights protected and vindicated with the effective
assistance of counsel.
In making this case, we must be ready to address the tough questions and
legitimate criticisms that are sure to be presented. I don’t have the authoritative
answers to these questions, but I offer some in the hope that they will help to spur
further discussion at this symposium and beyond:
Many observers have asked, and will continue to ask, how much it would cost
federal, state and local governments to provide counsel to all lower-income Americans
who quality for legal assistance in even a limited range of serious civil matters. The
answer at this point is that we don’t know, but talented researchers and advocates are
beginning to crunch the numbers and make some estimates. We must remember, and
stress to others, that what it most important is the principle – we cannot ignore practical
considerations, but we also must not sacrifice our highest ideals solely because we are
unsure of the price tag of fulfilling them.
Others have legitimately asked how we can consider a civil right to counsel when
so many jurisdictions in the United States continue to struggle to provide adequate
counsel for criminal defendants, as has been documented in a recent ABA study,
“Gideon’s Broken Promise.” There are, of course, very serious concerns about our
failure to keep Gideon’s promise. I am concerned, the ABA is concerned, and I am sure
that all of you are concerned, as well. But we must not accept the false choice of
providing justice to only some in our society.
Today’s symposium provides a great opportunity to continue to make the case
for a civil right to counsel and to consider how to answer the tough questions that will
arise. I pledge to you my continuing strong support for your efforts to ensure equal
justice for all.
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