Civil Gideon ical obligations to represent their clients effectively . The problems of mental illness and juveniles in our criminal justice system pose special difficulties for achieving fairness and justice . 4
Nevertheless , Gideon has radically altered the criminal law landscape . While the quality of it may vary , no one in this country is tried for a jailable offense without the assistance of counsel . No one facing jail time , no matter how marginalized or despised , stands alone at defendant ’ s table . Attorneys are there to counsel and advocate for most criminal defendants , regardless of the individual ’ s means or wealth . Prosecutors try cases against the scrutiny of defense counsel and vice versa , and the system is better for it .
In the civil arena , where Gideon has never extended , there has been a growing consensus among bar leaders that the time is right for Gideon to expand to civil cases . The term “ civil Gideon ” emerged in the late 1990s as a way of describing the need for a dedicated group of attorneys to take on the defense of indigent individuals in the civil context . The term has gained support , but so far has not found formal adoption by any court or legislature . In at least two states , Maryland and Washington , the State Supreme Courts have come tantalizingly close to creating a civil right of counsel . 5
What Does Civil Gideon Mean ?
For many low income individuals and families , the difference between a criminal penalty and a civil one is a distinction without a difference . For a family at or near the poverty line , every dollar counts . A civil judgment or the loss of funds that a civil judgment could recover can mean the difference between stability and homelessness . Loss of an apartment can mean the loss of a job . As an article in the Atlantic recently put it :
[ I ] t is actually more expensive to be poor than not poor . If you can ’ t afford the first month ’ s rent and security deposit you need in order to rent an apartment , you may get stuck in an overpriced residential motel . If you don ’ t have a kitchen or even a refrigerator and microwave , you will find yourself falling back on convenience store food , which — in addition to its nutritional deficits — is also alarmingly overpriced . If you need a loan , as most poor people eventually do , you will end up paying an interest rate many times more than what a more affluent borrower would be charged . To be poor — especially with children to support and care for — is a perpetual high- wire act . 6
For a person in this situation , a dispute with a store , a wrongful withholding by an employer , or wrongful eviction can alter her life in a way that would take years and substantial effort to overcome . In such circumstances , it is difficult to parse between the fundamental right of liberty and the right to the pursuit of happiness . The reality is that the civil dispute can be as punishing and devastating as the criminal .
The civil Gideon movement seeks to recognize these facts and to elevate the awareness of this need within the profession and society to address this problem in some systematic way by creating a civil right to counsel .
The complicating factors surrounding the slow acceptance of civil Gideon can be summed in one word : money . Prior to 1963 , many states had a minimal investment in providing public defenders . After 1963 , however , state spending rose as states no longer had a choice . They might organize the various offices in different ways ( permanent staff , contract attorneys , or a mixture of the two ), but every state had to commit to budgeting for public defenders . If a state legislature cut out such funding , the affected parties had a clear constitutional remedy . But this represents a substantial financial commitment in times where states are looking to cut and reduce , not grow and spend . Anyone involved in the struggle for judiciary funding can tell you that legislatures and executives are not looking for a proposal that will perpetually obligate them to commit more .
Yet , this limitation is also the greatest strength behind the civil Gideon concept . Today , without a constitutional mandate , the primary legal services for indigent legal services is the Legal Services Corporation , funding Legal Aid , among other organizations . As the ABA has noted , “ Financial resource limitations remain one of the largest barriers preventing civil legal aid providers , even with their pro bono allies , from addressing the needs of low-income client communities .” 7 But the problem , some would argue runs deeper . When recessions or tough budget times strike , non-essential programs are cut . This has led to a funding crisis in some states that has caused the bar leaders to question whether their state can continue to provide even the minimum level of representation for a growing population of people in need . 8 It also creates the perverse cycle of cutting resources and Legal Aid budgets when the need is at its greatest .
Civil Gideon , at least on its face , promises to solve these problems by declaring the right to counsel in a civil case to be a fundamental right . If the court would declare such a right , it would become part of gov-
34 THE VERMONT BAR JOURNAL • FALL 2016 www . vtbar . org