Letter From The President Of The New York County Lawyers' Association

2006-08-01 01:00

To The Readers Of The Metropolitan Corporate Counsel :

In late 2005, NYCLA issued a Housing Court Report, which called for recognizing 'Civil Gideon ' as it addressed reform of the New York City Housing Court. This message is an introduction to the topic of 'Civil Gideon' to Metropolitan Corporate Counsel readers whose professional interests and experiences as business lawyers and business people have probably insulated them from debates regarding this issue.

'Civil Gideon ' refers to recognizing a 'right' to counsel in civil litigation that threatens to deprive a defendant of some 'fundamental' right or property interest. (The ' Gideon ' is from Gideon v. Wainwright, the landmark Supreme Court decision recognizing an indigent defendant's right to have counsel provided in all criminal cases.) The two most obvious examples of civil litigation involving this right occur in cases that threaten the loss of a home or the loss of the custody of a child. Regrettably, indigent individuals thrust into such litigation find themselves overwhelmed when the stark prospect of losing their home or child combines with the legal system's complexity and incomprehensibility.

All of us recall from law school that recognizing a 'right' also acknowledges the existence of a corresponding 'duty' - in this case, the 'duty' to provide counsel at the expense of the society at large or government itself. To be sure, indigent defendants in civil matters receive representation from New York's legal service organizations or lawyers who provide legal services to the poor as a matter of pro bono publico. Sadly, the demand for such services far exceeds the supply. More than 80 percent of the defendants in New York City's Housing and Family Courts, where such proceedings occur, are unrepresented by counsel.

During my recent discussions with lawyers whose practices concentrate on commercial and business law, some interesting questions arose. There seems to be considerable misinformation or misunderstanding about the concepts of 'Civil Gideon. ' For example, many business lawyers thought that providing counsel to indigent defendants would increase 'frivolous litigation.'Actually, courts are much less reluctant to impose sanctions on lawyers than on pro se litigants who, understandably, cannot be expected to 'know better.' Several lawyers also speculated that 'Civil Gideon ' would 'clog the courts.' However, judges report that pro se litigation consumes more judicial and administrative time than those cases where an individual is represented by counsel. Pro se litigants thrust judges into the awkward position of (1) preventing the pro se litigant from making a truly dumb mistake, (2) ensuring the integrity of the judicial system, and (3) ensuring the plaintiff is not deprived of his or her rights through any overabundance of solicitude for the pro se defendant.

An argument one often hears against 'Civil Gideon ' is: 'It will cost too much.' Certainly there is a cost associated with providing representation to those who face eviction or the loss of a child without the means to hire a lawyer. The 'real' savings of refusing to provide counsel to them is not merely 'equal to' whatever the cost of providing a lawyer might be. Those savings must be reduced by the costs that flow directly from pro se litigation. These costs are measured in terms of the delay, reduced numbers of cases a judge can address each day and the court system's own unavoidable bureaucratic inefficiencies flowing from pro se litigation. Imagine yourself a lawyer explaining to a layperson how to answer a complaint in a civil action or how to allege an affirmative defense. If that seems easy, try imagining that you are a clerk or judge telling a layperson how to do that without simultaneously 'rendering legal advice' in violation of your duties as a public servant. Daunting? You bet it is and it takes time. Remember: time is money.

Court administrators can calculate what a courtroom 'costs' per day and provide a reasonably precise figure for what a 'courtroom hour' costs, including all the judges, clerks, guards and services that comprise what happens when a court is in session. The cost of one 'courtroom hour' is considerably more than any lawyer's 'billable hour.'

Moreover, wrongfully evicted persons impose a societal cost in terms of homelessness, alternate shelter, provision of public housing, etc. One startling item emerging from NYCLA's Report - providing counsel to the unrepresented indigent in eviction proceedings would result in saving approximately $4 for every $1 spent. This conclusion is based on studies conducted eight years ago so the potential savings are most likely greater today.

'Civil Gideon' will promote respect for our judicial system because it will inject substance into the notion of 'right to counsel.' Every lawyer has a personal interest in elevating the profession that calls itself 'civic minded' or even 'noble.' I commend you to read NYCLA's Housing Court Report on our website, www.nycla.org in the News & Publications section under the category of Board Reports & Resolutions.


Edwin David Robertson