September 1999

Attorney Representation: An Essential Right or Not?

On June 27, 1999, at the Access to Justice Annual Conference in Wenatchee, Washington, there was a workshop program on "Civil Gideon: If Not, Why Not?"1 The keynote speaker was the Hon. Earl Johnson, Jr., Justice of the Court of Appeals of the State of California, Los Angeles.2 He stated that:

Some propositions are so elemental and some developments so long overdue that once implemented most Americans wonder how democratic society could have functioned any other way. Women's suffrage, the elimination of de jure racial discrimination and the right to counsel for indigent felony defendants are among these phenomena.3

In this article we discuss another fundamental right, as yet unrealized, which in retrospect probably will appear self-evident and pre-ordained. That is the right to counsel, or more accurately, the right to appropriate representation in civil cases. At some point, Americans will look back and ask how concepts like "due process," "equal protection of the law," and "equal justice under law" were anything but hollow phrases while our society still tolerated the denial of counsel to low-income civil litigants.

This seemingly unarguable right to counsel was first introduced in Common Law more than three centuries before the United States Constitution was adopted and almost four centuries before the Washington State Constitution came into existence. In 1495, during the reign of Henry VII, the King signed a law which read, translated from ancient English into current vernacular:

After the said writ of writs be returned, … the justices … shall assign to the same poor person or persons, counsel learned by their discretions, which shall give their counsels nothing taking for the same, and in likewise the same justices shall appoint an attorney and attorneys for the same poor person and persons … which shall do their duties without any rewards.

This right did not apply in criminal cases, but applied in civil cases in the common-law courts for centuries and was extended to equity courts as well. In present-day England, the right to counsel in civil cases is even broader and lawyers are fully compensated out of government funds for the services they provide. In 1851, France enacted legal aid providing free attorneys to indigent persons. Germany followed in 1877; Norway, 1915; Sweden, 1919; and thereafter, Denmark, Belgium, The Netherlands, and virtually all of northern Europe passed such laws to provide counsel for indigents, and to provide for public responsibility for their representation. In central and southern Europe, Austria had the right to counsel in civil cases beginning in 1895. Spain had such a statutory right since at least 1855, and Portugal since 1899. Italy created the right in 1865, and in virtually all countries, there was public responsibility.

A major international body, the Committee of Ministers of the Council of Europe, in 1978 declared that: "A right to necessary legal aid" and the "right of access to justice and to a fair hearing" constitute "an essential feature of any democratic society." In 1979, the European Convention on the Protection of Human Rights and Fundamental Freedoms established a minimal level of basic human rights that signatory European nations were expected to maintain. The Convention is interpreted by the European Court of Human Rights, containing justices drawn from member states. In 1979, in a case called Airey v. Ireland, an indigent Irish woman complained that she had been denied a lawyer to litigate her judicial separation case. The Court held for her and granted a financial award to pay for a lawyer. This led to Ireland expanding its legal-aid program to comply with the standards of the European court. Justice Johnson wondered: "[S]ince the right to counsel in civil cases is now deemed 'a fundamental human right' by most of western civilization, how much more is required before it becomes an essential ingredient of due process in this country?"4

Another panelist at the Wenatchee Conference was the Hon. Richard B. Sanders, Justice of the Washington State Supreme Court, who spoke on "Access to Justice: A Noble Principle in Beggar's Rags." Justice Sanders in his presentation and paper asked:

If it is a legitimate role of the government to build courthouses and hire judges, is it not only a difference in degree, not kind, to assure litigants adequate representation so they may properly present their case when they go to court? Indeed, is not legal representation a practical necessity that those knowledgeable in the law would have to admit: That the man who represents himself has a fool for a client?

So the first point is this: Access to justice is no more a welfare program than maintaining a court system is a welfare program. Maintenance of a civil court system is so close to the core purpose of government that it justifies governance even when all other justifications fail.

But I suggest the availability of legal representation is not itself the driving principle which serves as its own justification. Rather it is simply an application of a more basic principle we call access to justice. I would define this to mean the legal right of every individual to have his or her grievance determined on the merits by an independent judiciary. But if we are to be principled in the defense of this principle, we must identify, and confront, barriers to access beyond those represented by poverty or indigence. After all, what good is even a retained attorney by your side if the doors to the courthouse are locked against you?

… [I]f we are truly to access justice, we must facilitate that access in a just way. We must recognize that the civil justice system is a core function of government, which is not only available to all, but the responsibility of all to maintain. If attorney fees for indigent criminal defendants and judicial salaries are properly borne by the taxpayers as a whole, it is equally appropriate of all of society, not just the unfortunate few who happen to be involved in the judicial system, to make sure the doors of the courthouse remain open in form and substance.

… In conclusion, let us then defend access to justice in the manner this great principle should become accustomed. Let us promote it fairly and consistently across the board, recognizing that its origin is not the welfare state but rather the state of affairs which exists when the government fulfills its basic purpose. To secure our lives, our liberty, our property, and our private pursuit of happiness in the civil context. As this is a public benefit, it is equally a public responsibility to be shared by us all, not to be shouldered by the few.

Paraphrasing a common witticism: "Great ideas have many parents. Failures have none." The parentage of the "Civil Gideon" idea is murky. It clearly connotes the right to be represented by legal counsel in civil actions, but all of us know that this is not implemented in real life in the United States. Nor is there any general consensus that the existence of the "right" has found wide acceptance in American politics and judicial politics. As a lawyer for almost half a century, it has seemed to me intuitively that it is a no-brainer. The opportunities for meaningful access to the civil justice system are largely dependent upon legal representation, and the likelihood of a just result is hugely increased by competent representation. For this reason, and because as a nation we are constitutionally committed to meaningful access to equal justice under law, the creation of the Legal Service Corporation (LSC), and the acceptance by government to provide legal services for some poor, was simply the overdue recognition of the responsibility of the first duty of government — protection of the people.

But times have changed. So have the political bodies of government, including the U.S. Supreme Court. The pursuit of justice of the Warren Court was followed by the unsettling years of the Burger Court and then the sometimes frightening constrictions of the Rehnquist Court. Political attacks upon the LSC, and the growing disparity between rich and poor eventuated in the present access to justice movement.

But the language of America's founding constitutional document, the Declaration of Independence, must be the beginning of our inquiry. 1. "We hold these Truths to be self-evident" (fundamentality — natural law); 2. "that all Men are created equal" (equality principle); 3. "that they are endowed by their Creator with certain unalienable Rights" (human rights cannot be taken away); 4. "that among these are Life, Liberty and the Pursuit of Happiness" (the triad of fundamental rights); 5. "that to secure these Rights, Governments are instituted among men" (positive duty of government to protect the people's rights); 6. "deriving their just Powers from the Consent of the Governees" (the people are sovereign; their consent is required — democracy).5

The United States Constitution and its Bill of Rights speak of justice, due process of law, equal protection, equal protection of the law, privileges and immunities of citizenship, and other terms construed to mean right of counsel. Right of counsel explicitly is found only in the Sixth Amendment, but since a basic principle of the federal constitution was that civil justice was to be done in the states, it was understandable that these provisions were not included. The founders felt that the principles were covered by terms such as privileges and immunities of citizenship and the Ninth Amendment, which states: "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The subsequently added Fourteenth Amendment forbids the states from making or enforcing any laws which shall abridge the privileges and immunities of citizens: "nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." State constitutions without exception provided for right to counsel, and much of the backwardness of clarifying the meaning of that right has arisen from a conscious lacuna between federal and state power and a duty to enforce rights which it inherited at the birth of this nation.

What understanding should we have as to the role of right to counsel within the meaning of rule of law, due process of law, equal protection of the law, and our other cherished constitutional precepts in this century? It is useful to see what the perceptions of those learned in the subject matter have said, in a past well beyond the memories of any of us today.

In 1921, Reginald Heber Smith, who modestly described himself as "of the Boston bar," republished a book entitled Justice and the Poor: A Study of the Present Denial of Justice to the Poor and of the Agencies Making More Equal Their Position Before the Law, with Particular Reference to Legal Aid Work in the United States.6 Smith was a renowned attorney, an established scholar, a national leader of the bar, and a proponent of justice. In a foreword to the first edition in 1919, Elihu Root (1845-1937), distinguished lawyer, diplomat, United States Senator, Secretary of State, and President of the Carnegie Foundation, wrote:

No one, however, doubts that it is the proper function of government to secure justice. In a broad sense, that is the chief thing for which government is organized. Nor can anyone question that the highest obligation of government is to secure justice for those who, because they are poor, and weak, and friendless, find it hard to maintain their own rights. This book shows that we have not been performing that duty very satisfactorily, and that we ought to bestir ourselves to do better .…We have been slow to appreciate the changes of conditions which to so great an extent have put justice beyond the reach of the poor.

Smith had begun his pioneer work in the study and formation of "Legal Aid Societies" before World War I, writing to call the American Bar Association's attention to these problems. His last chapter, "A More Equal Administration of Justice," noted that the right to legal counsel has been implemented in other countries with success, and then stated:

We can end the existing denial of justice to the poor if we can secure an administration of justice which shall be accessible to every person no matter how humble, and which shall be adjusted so carefully to the needs of the present day world that it cannot be dislocated, or the evenness of its operation be disturbed, by the fact of poverty.… In the existing machinery of justice, there are three defects, which in their practical results destroy the impartiality of the administration of justice and thereby make impossible that absolute equality before the law which the ideal of democracy demands, which our form of government was designed to secure, and which it is trying to guarantee through a fair and sound substantive law.7

With respect to the right to legal counsel, Smith urged "that the machinery of justice can be operated only through attorneys," and since

attorneys must be paid for their services, and that the poor are unable to pay for such services, this is the great, the inherent and fundamental difficulty — inherent because our legal institutions were framed with the intention that trained advocates should be employed, and fundamental in the sense that no amount of reorganization or simplification, short of a complete overturn of the whole structure, can entirely remove the necessity for the attorney.8

In this last sentence, written more than 80 years ago, Smith noted that his plea for justice for the poor contains "our best immediate hope for a realization of our ideal of such an equal administration of the laws that denial of justice on account of poverty shall forever be made impossible in America."

Smith, and others who valued our heritage, understood that no United States Supreme Court decision in the 196 years since Marbury v. Madison, 5 U.S. 137 (1803), has altered its understanding of the constitutional duties of our judiciary. It is far more than a judicial decision, despite its simple factual context. It is a constitutional document, essential and mandatory, prescribing constitutional judicial duties. It tells us that our courts must be guided by English constitutionalism "from whence we derive many of the principles of our political institutions," as well as from the constitution and laws of the United States. Our courts inherited the Common Law and equity and the powers that flow from that. It reminds us that James Madison, as Secretary of State, "is a high officer, but is not above law. It is not consistent with the policy of our political institutions, or the manners of the citizens of the United States, that any ministerial officer having public duties to perform, should be above the compulsion of law in the exercise of those duties." It reminds us that those who exercise judicial power "should be independent." It tells us that withholding of Marbury's commission was an act "not warranted by law, but violative of a vested legal right." Justice Marshall then proclaims what for almost 200 years has been the most basic constitutional description of the fundamental right to access to justice:

If he has a right, and that right has been violated, do the laws of his country afford him a remedy? The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.… In the 3d vol. of his Commentaries, p. 23, Blackstone states two cases in which a remedy is afforded by mere operation of law. "In all other cases," he says, "it is a general and indisputable rule, that where there is a legal right there is also a legal remedy by suit or action at law whenever that right is invaded." … It is a settled and invariable principle in the laws of England that every right, when withheld, must have a remedy, and every injury its proper redress. The government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

But Marbury v. Madison is best known for its enunciation of another central principle of our jurisprudence — judicial review. This flows from the constitutionally mandated judicial power. It is an essential principle of the separation of powers. It helps preserve for us and our posterity, protection from the political pandering of the moment, and the policy passions and prejudices of those who know not, or disregard, our fundamental constitutional principles. It is worth reading and re-reading. Justice Marshall, at the close of his historic opinion, reminds those who have the solemn duty of exercising judicial power, what their oath of office is:

I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States.

Perhaps he intended that lawyers and judges who followed him would refresh their sense of responsibility by knowing their heritage.

In the two hundred years since Marbury v. Madison, the United States Supreme Court has seriously lost its mooring as it relates to the fundamentality of access to justice; the essentiality of right to counsel; the certainty of equal protection under law; and the responsibility and duties of the judiciary to implement individual rights. The Court has affirmed and reaffirmed its jurisprudence, often in rhetoric rather than in meaningful action. Yet, the obvious fact is that justice often remains tortured, and individual rights, particularly of the poor and oppressed, have been sadly ignored and abused.10

Next month we will review the strange and tortuous jurisprudence of the right to counsel in civil cases, analyzing why we, almost alone in civilized industrial societies, still fail to provide justice for the poor.

NOTES

1 This was the Fourth Annual event, conducted by the Washington State Access to Justice Board, in coordination with the Washington State Bar Association and the Washington State Supreme Court. These conferences are attended by judges, bar leaders, and those interested in working in access to justice activity. Each conference has included a workshop by the Jurisprudence Committee of the ATJ Board. Each of the workshops has had as a basis for its discussion a paper distributed to participants and written by the author of this paper who is the chair of the committee. This year's 94-page paper can be procured from Joan Fairbanks at the Washington State Bar Association, or from the author. This article seeks to introduce the reader to the issues involved but for further and more detailed understanding of the questions, the conference paper, its cited authorities, and papers and articles of other participants can be consulted.

2 Justice Johnson was the chair of the working group that led to the creation of the California ATJ Commission and a member of it since its inception. He was a Director of the Legal Service Program, Professor of Law at the University of Southern California, appellate lawyer, and author of 16 books and some 40 articles. Among them are "The Case for Legally Enforceable Right to Representation in Civil Cases for Indigent Litigants," 11 Loy. L.A. L. Rev. 249 (March 1978), and "The Right to Counsel in Civil Cases: An International Perspective," 19 Loy. L.A. L. Rev. 341 (1985).

3 See Johnson, ibid., 19 Loy. L.A. L. Rev. 341 at 445-ff.

4 Justice Johnson's speech at the ATJ Conference covered much of this material. A videocassette of it is available from the Washington State Bar Association or from TVW. Details can be found in the "Right to Counsel in Civil Cases," 19 Loy. L.A. L. Rev. 341.

5 "Declaration of Independence," Washington State Bar News, July 1999.

6 Published for the Carnegie Foundation for the Advancement of Teaching by Charles Scribner's Sons (New York 1921).

7 Smith, at 240.

8 Smith, at 241.

9 See Schroeter, "Civil Gideon: If Not, Why Not?," pp. 10-91, for discussion of some of the reasons and the citations of those relevant cases.

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