Establishing rights without remedies? Achieving an effective civil Gideon by avoiding a civil Strickland.

• Author: Brown, Mark C.

INTRODUCTION I. AVENUES FOR ESTABLISHING A CIVIL GIDEON A. Judicial Strategies 1. Federal Due Process Claims 2. Federal Equal Protection Claims 3. State Constitutional Claims B. Legislative Strategies II. EVALUATING THE GOAL IN LIGHT OF GIDEON'S FLAWS III. FOUNDATIONS FOR CIVIL INEFFECTIVENESS OF COUNSEL CLAIMS IV. ALTERNATIVES TO STRICKLAND FOR A CML RIGHT TO COUNSEL A. Principles and Policy Goals B. The Fundamental-Fairness Approach C. Pre- and Post-Strickland Alternatives in the Criminal Context CONCLUSION INTRODUCTION

Social justice captivated the national political discourse in the first year and a half of the Obama Administration as the country focused on the issue of access to health care for the millions of Americans who cannot afford health insurance. The passage of major health care-reform legislation raises the following questions: What other social justice initiatives may be on the horizon? Might the country turn its attention to access to justice for indigent litigants in the civil justice system?

In August 2006, the American Bar Association (ABA) House of Delegates passed Resolution l12A, encouraging legislatures to "provide legal 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." (1) This proposal embodies the "Civil Gideon" movement, which endeavors to achieve a right to appointed counsel for indigent litigants in the civil context, similar to the Sixth Amendment right in criminal matters the Supreme Court articulated in Gideon v. Wainwright. (2) Calls to expand the right to appointed legal counsel stem from the many legal needs left systemically unmet (3) and the current legal aid system's inability to satisfy indigent litigants' demands for legal assistance. (4) Many people proceed without representation in civil cases, putting themselves at a significant disadvantage when pitted against sophisticated opposing counsel who are experienced in our adversarial system of justice. Adverse outcomes are significantly more likely for unrepresented litigants. (5)

Disparate outcomes for unrepresented litigants resulting from their lack of counsel present a fundamental challenge to a justice system founded on the principle emblazoned on the Supreme Court's marble portico: "Equal Justice Under Law." In response to ABA Resolution l12A, numerous state and local bar associations passed similar resolutions and established task forces with the goal of expanding the right to counsel in certain civil matters. (6) Notable among these state efforts, the California legislature--even in the face of the state's fiscal woes (7)--recently passed the Sargent Shriver Civil Counsel Act, which funds pilot programs through which lawyers "shall be appointed to represent low-income parties in civil matters involving critical issues affecting basic human needs." (8) Following on the heels of California, the American Bar Association adopted the ABA Model Access Act, intended to "assist interested legislators" to "establish[] a statutory right to counsel in those basic areas of human need identified in the 2006 Resolution and ... provid[e] a mechanism for implementing that right." (9)

Despite the Civil Gideon movement's progress, setting Gideon as the movement's goal may not be ideal. Many commentators (10) and practitioners (11) lament that Gideon has not fulfilled its promise of providing competent counsel to indigent criminal defendants. One oft-cited failure is that representation by the defendant's appointed counsel is still completely inadequate, in part because of the high threshold to find counsel ineffective on appellate review. (12) Conscience-shocking examples abound:

Courts have declined to find ineffective assistance where defense counsel slept during portions of the trial, where counsel used heroin and cocaine throughout the trial.... where counsel stated prior to trial that he was not prepared on the law or facts of the case, and where counsel appointed in a capital case could not name a single Supreme Court decision on the death penalty. (13) Critics argue that the low standard for effectiveness of counsel, which the Supreme Court established in Strickland v. Washington, (14) not only vitiates the Sixth Amendment right to effective assistance of counsel for many criminal defendants, but also provides less incentive for states to fund indigent defense services adequately. This compounds the problem of inadequate representation by overburdening the public defender system. (15)

Based on the experience under Gideon, legislative efforts to expand the right to appointed counsel in certain categories of civil cases may not be sufficient to guarantee indigent litigants the right to effective assistance. This Comment evaluates the standards that appellate courts might use to judge ineffective assistance of counsel in the civil context in light of current efforts to expand representation in civil cases. (16) The bulk of Civil Gideon scholarship focuses on how a right to appointed counsel like that announced in Gideon may be achieved in the civil context (17) without addressing whether Gideon is a desirable goal. Laura K. Abel, Deputy Director of the Justice Program at the Brennan Center for Justice, provides a rare exception to this general trend in an article listing the lessons that the Civil Gideon movement can learn from Gideon itself. (18) This Comment evaluates and expands on a footnote in Deputy Director Abel's article identifying trends in Supreme Court jurisprudence in the criminal context that may signal an opportunity to consider alternatives to the difficulties the Strickland standard presents. (19) Existing literature addressing ineffective assistance of counsel in the civil context specifically singles out the class of civil cases where states most commonly appoint counsel to indigent litigants: parental rights terminations. (20) This Comment adds to such literature by examining alternative approaches to the establishment of a civil right to counsel in light of the broader Civil Gideon movement and recent developments in Supreme Court jurisprudence.

This Comment is divided into four Parts. In order to assess the standards for ineffective assistance of counsel, it is first important to understand the most likely ways to achieve a Civil Gideon. Therefore, Part I provides background on Civil Gideon efforts and concludes that legislation, as opposed to litigation, is the most likely avenue for achieving a meaningful civil right to counsel. Part II examines a potential pitfall for the Civil Gideon movement in light of the havoc that the Strickland standard has wreaked on the right established by Gideon. Part III assesses the foundations for recognizing a claim of ineffective assistance of counsel for civil litigants against counsel appointed through Civil Gideon statutes. Finally, Part IV evaluates potential standards for ineffective assistance of counsel, concluding that appellate courts ought to adopt a professional-guidelines-based approach that subjects an attorney's performance to stricter review than Strickland. (21)

1. AVENUES FOR ESTABLISHING A CIVIL GIDEON

   In his landmark opinion in Gideon, Justice Black concluded that "in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems ... to be an obvious truth." (22) With these words, the Supreme Court overruled Betts v. Brady, (23) which held that the due process guarantees of the Fifth and Fourteenth Amendments did not necessarily require the state to provide attorneys to criminal defendants who could not afford them. (24) Three decades before Gideon, the Court used "reason and reflection" (25) to arrive at a similar conclusion in the infamous Scottsboro trial, and such reasoning appears no less applicable in the civil context: "Even the intelligent and educated layman has small and sometimes no skill in the science of law." (26) Gideon, however, grounded the right to counsel in the Sixth Amendment, which specifically addresses "all criminal prosecutions." (27) This Part examines judicial and legislative avenues for establishing a Civil Gideon and concludes that, between these strategies, legislative efforts are the most likely avenue for progress toward a Civil Gideon.

   1. Judicial Strategies

      There are three possible judicial strategies for achieving a Civil Gideon: federal due process claims, federal equal protection claims, and state constitutional claims. Although a Civil Gideon would suggest a right to appointed counsel in a broad array of civil cases, the cases discussed in this Section are primarily parental rights termination cases because the interest at stake is among the weightiest in the civil justice system, making such cases especially compelling for developing a right to appointed counsel in civil cases. (28) These litigation efforts, however, face major hurdles that may prevent them from effectively establishing a Civil Gideon.

      1. Federal Due Process Claims

         The forcefulness with which the Gideon Court identified the right to counsel as a "fundamental right," applicable to the states under the Fourteenth Amendment, made the Due Process Clause a natural avenue by which to achieve a Civil Gideon. (29) The Due Process Clauses of the Fifth and Fourteenth Amendments protect "liberty" interests with two separate guarantees--"procedural due process" and "substantive due process" (30)--both of which may be implicated in civil cases with indigent litigants. When "governmental decisions ... deprive individuals of 'liberty' or 'property' interests," procedural due process places limitations on the process the government may use in order to ensure individuals have the "opportunity to be heard 'at a meaningful time and in a meaningful manner.'" (31) The argument that indigent defendants are denied due process of law...