COMMENT–It’s Time for the Civil Justice Sequel to Gideon v. Wainwright: Indigent Civil Litigants Deserve Appointed Legal Counsel

By Mark P. Yablon*

It is hard to believe courts did not universally provide attorneys to criminal defendants unable to afford counsel until Gideon v. Wainwright in 1963[2] or to arrestees until Miranda v. Arizona in 1966.[3] Today, not providing these fundamental constitutional rights under the Fifth, Sixth, and Fourteenth Amendments to working poor and indigent litigants is incomprehensible.

Similar rights should uniformly extend to certain civil disputes that could deprive one’s liberty, such as 42 U.S.C. § 1983 prisoner civil rights claims, divorce, custody, child support, parental termination, home foreclosures, receiverships of closely-held family businesses, and bankruptcies. Losing a child, home, or family business can be far more devastating to an individual and society than being briefly jailed. The civil justice gap also results in pro se litigants unintentionally delaying trials and unnecessarily frustrating courts and adversaries.

This article will review the civil justice predicament and offer some reasonable solutions.

I. No law bans involuntary civil appointments; circuit appellate courts require them; and the U.S. Supreme Court recognizes courts have inherent authority to conduct business.

Congress and the states have the ability to pass statutes to pay counsel for civil litigants who reasonably cannot afford assistance just as these legislative bodies fund counsel for similarly situated criminal defendants as the Constitution requires. Until Congress and the states properly fund this problem, society has to turn to more difficult options and half-answers.

For example, Congress empowered the U.S. Supreme Court from the beginning “to adopt rules relating to admission to practice before the federal courts” under “Section 35 of the Judiciary Act of 1789, Act of September 25, 1789, Ch.20, 1 Stat. 73, 92 now codified as 28 U.S.C. § 1654.”[4]  And 28 U.S.C. § 2071 says “‘the Supreme Court and all courts established by Act of Congress may . . . prescribe rules for the conduct of their business.’”[5] An example of these rules are the Federal Rules of Civil Procedure 83: “a district court . . . may adopt and amend rules governing its practice” not inconsistent with these rules.[6]

And the U.S. Supreme Court empowers lower courts to conduct business as they reasonably see fit per Young v. United States ex rel. Vuitton et Fils S.A. because courts have the inherent authority to do so.[7] Many other courts have also explicitly affirmed this inherent authority. For example, courts may issue local rules that do not directly contradict binding authority and “regulate the conduct of attorneys and to disbar attorneys.”[8] This includes issuing local rules that require practicing attorneys admitted in a given court to be subject to involuntary civil appointments when a judge determines the need.

In Bothwell v. Republic Tobacco Co., the U.S. District Court for the District of Nebraska said, “Since its inception the federal judiciary has maintained that federal courts possess inherent powers which are not derived from statutes or rules,[9] which came with the creation of courts.[10] So courts may order unwilling counsel to represent indigent litigants in civil litigations:

[T]his court’s inherent power to compel representation of the indigent exists for two primary purposes: (1) to ensure a “fair and just” adjudicative process in individual cases; and (2) to maintain the integrity and viability of the judiciary and of the entire civil justice system. These two purposes mirror the dual functions that lawyers serve in the civil justice system. First, they act as advocates in individual cases working to peacefully resolve civil disputes between citizens. Second, by their ready availability to act in that capacity, they preserve the credibility of the courts as a legitimate arm of the civil justice system.[11]

Lawyers are needed to ensure a “fair and just process” given the adversarial system.[12] Yet, indigent litigants do not have “adequate access to [this needed] legal assistance.”[13] This “failure threatens the reliability of the results of the adversarial process.”[14] Therefore, the court held “when indigency is the principal reason for disparate access to the civil justice system in an individual case, a federal court does possess the inherent authority to bring about a fair and just adjudicative process by conscripting an unwilling lawyer to represent the indigent party.”[15]

In 2015, the Fifth Circuit addressed a stark example that illustrates the need for civil appointments from the U.S. District Court for the Western District of Texas.[16] Plaintiff Mario Naranjo filed a § 1983 case in forma pauperis against “the prison where he was incarcerated.”[17] The trial court recognized he “demonstrated the exceptional circumstances to warrant the appointment of counsel.”[18] Regardless, the trial court said it lacked funding to require an attorney to represent him and “could find ‘no attorneys in the area willing or able to take the case pro bono.’”[19] While appealing the appointment ruling, the trial court added insult to injury by improperly continuing the proceedings and awarded summary judgment against Naranjo, which he also appealed.[20]

Rightfully so, Judge Jennifer Elrod of the Fifth Circuit Court of Appeals disagreed with the lower court’s ruling.[21] She held the lower court abused its discretion by not compelling counsel to accept the unpaid appointment.[22] She vacated the district court’s orders that denied counsel appointment and entered summary judgment against Naranjo.[23] Because the trial court has inherent authority to make an involuntary civil appointment unless the appointed attorney has good cause to decline, Judge Elrod remanded the case to district court to consider “whether a compulsory appointment is warranted.”[24]

A lack of judicial funds and poor judicial governance is dangerous to society. “[T]he reduction of governmental resources to provide legal services to the poor is, for them, a removal of the civil justice system’s accessibility (and thus, its legitimacy).”[25] The judicial branch was created to include “peaceful resolution of private disputes between citizens and the protection of the minority from loss of their rights to the majority . . . .”[26] But when powerful government agents or other wealthy litigants continually and successfully confront some of society’s weakest members—indigents in jail and the working poor at risk of losing their children, homes, and businesses—this creates a recipe for societal and individual disaster significantly graver than facing the possibility of a short stay in county jail or extended time in state or federal prison.

Thus, courts may carry out justice in safe, ethical, and efficient ways to keep the public’s trust, to resolve disputes without litigants resorting to dangerous self-help, and to maintain order throughout the judicial system.

And even when attorneys are not paid directly for each workhour in these matters, they are compensated as members of a government sponsored oligopoly. As a private profession inextricably intertwined with courts and government, neither could operate without the other. Attorneys have unique duties, including being officers of the court to whom they voluntarily submit themselves. As such, these attorneys voluntarily subject themselves to the court’s reasonable direction in exchange for the privilege of being a servant attorney.

Litigants, however, have no choice. They are subject to the government-run judiciary and its attorney agents and officers. If one cannot afford representation, the system keeps running. Sadly, it too often keeps running over the unrepresented by coercing them into a system that can take away their rights and liberties. This is why certain impoverished civil litigants deserve Fifth, Sixth, and Fourteenth Amendment rights to counsel similar to those of criminal defendants.

Doctors and other licensed professionals do not share a similar bond so intricately tied to a dominating government. For example, government agents do not decide the outcome or process of every doctor’s physical exam or surgery. The same holds for plumber’s home repair. And, generally, the government cannot and does not coerce citizens to go to the doctor or install new plumbing fixtures against their desires. Also, nobody typically takes away one’s liberties for not going to the doctor or installing a stainless-steel sink.

Thus, attorneys are not similarly situated with other licensed professionals because of attorneys’ unique interdependent relationship with government. And individuals involuntarily or voluntarily embroiled in civil matters in courts are not similarly situated with those who interact with other licensed professionals. It has been no secret for centuries that attorneys have a different public burden to their paying and non-paying clients than other professionals have to society or their clients.[27]

II. To keep the public’s trust and to protect everyone’s constitutional rights, Congress, the states, and other institutions must ensure civil litigants have their fair day in court.

Courts may not tax and spend in traditional ways, which limits their ability to pay attorneys to represent impoverished civil litigants. But Congress and the states are equipped to ensure civil litigants have their day in court to defend against adversaries with experienced attorneys protecting their interests. Unfortunately, Congress and too many states remain virtually silent on the funding side of this growing crisis.

But some states, U.S. District Courts, and U.S. Circuit Courts of Appeal[28] are trying to solve this crisis through reforms, local rules, trial court rulings, and appellate holdings. In Texas, “attorneys have ethical obligations to represent their fair share of indigent clients that go beyond their duties to the court” and “these obligations are formalized in the Texas Disciplinary Rules of Professional Conduct, which highlight the ‘moral obligation of each lawyer’ to provide legal services to those unable to pay and require that attorneys accept court appointments absent good cause.”[29] The New York State Court of Appeals began September 14, 2014, to require its thousands of annual bar applicants to perform 50 hours of pro bono work that “addresses the crisis in access to justice, and—just as importantly—helps prospective attorneys build valuable skills and imbues in them the ideal of working toward the greater good.”[30]

Examples of U.S. District Courts taking the lead include the Eastern and Western Districts of Arkansas and the Southern District of Indiana. The Arkansas districts passed Local Rule 83.7 Appointment of Counsel in 1987, as amended in 2009, to combat the growing problem of indigent litigants in civil cases unable to pay counsel. The rule mandates “all actively practicing private attorneys enrolled in the District in which the [indigent’s civil] case is pending” are subject to “random selection.” The U.S. District Court for the Southern District of Indiana passed a similar rule in 2016.

But this burden is relatively benign. The Eastern District of Arkansas made 38 voluntary and involuntary appointments (among 2,205 admitted attorneys eligible for appointment) in 1,271 pro se prisoner cases filed in a recent 18-month period.[31] Although, one Little Rock private practice attorney, Scott Strauss, criticizes the rule for excluding government attorneys and relying in practice on Little Rock attorneys instead of all admitted attorneys across the state.[32] Cases often involve § 1983 civil rights claims against prison officials as discussed earlier in Bothwell and Naranjo. Section 1983 prisoner claimants typically allege physical abuse, withholding necessary medical care or food, and wrongful solitary confinement. Cases also involve Title VII employment discrimination, religious discrimination, Social Security, and voting rights.

The Arkansas Lawyer just published an article that James M. Moody, Sr., former U.S. District Judge for the Eastern District of Arkansas and current Of Counsel at Wright Lindsey Jennings, and I wrote supporting Arkansas’s local rule.[33] That article is a counterargument to Strauss’s contention that no court has authority to compel attorneys to represent civil litigants for any purpose. He says, “Uncompensated appointments are illegal because the Constitution specifically prohibits an uncompensated taking.”[34]

The current flawed system is better than no system for indigent litigants in civil cases. But there are better doable, yet meaningful, ways to help while waiting for proper funding. For one, law schools can help. With its 1975 founding, UA Little Rock William H. Bowen School of Law (as it is named today) pioneered helping impoverished civil litigants by starting a free legal clinic.[35] More law schools are now focusing on this experiential training aka real-world exposure for law students through clinics and externships while simultaneously helping the needy address their legal matters.

Some law schools and others have incubators for new attorneys. CUNY School of Law started the first U.S. legal incubator in 2007.[36] There are now more than 60 legal incubators,[37] including one the State Bar of Texas began in April 2017. With today’s high unemployment among recent graduates, incubators provide new attorneys income and affordable transitions to full employment.[38] But all law schools, states, and bar associations must step up and create win-win opportunities for all concerned on a significantly greater level.

Indigent civil litigants benefit because they could have free or reduced-fee legal help they otherwise could not afford. This will help relieve societal stresses where a large majority of unrepresented litigants may feel cheated by the system because they cannot afford counsel to advocate for them. Even first-year law students can help most pro se litigants going it alone—just by helping with legal research, reasoning, and writing. Although law schools and incubators are not the perfect answer, they at least let some disadvantaged litigants know someone is listening and fighting for them.

Courts benefit because law students and inexperienced attorneys can run interference between pro se litigants and court staff. This saves courts time and money, thus mitigating everyone’s frustration. And courts would no longer have to strong-arm reluctant attorneys one-by-one to help. In fact, courts should collaborate with law schools to create volunteer panels of eager and competent law students and recent graduates who want courtroom experience and public service opportunities.

Law schools benefit because they can provide students with more meaningful real-world experiences, making the schools more appreciated and valued by taxpayers and students. If more of their students and recent graduates had real world experience—either at no cost or on a sliding-scale—those experiences would make them more marketable to employers and paying clients. Wouldn’t that influence more alumni to value their connection to their law schools? And, in turn, wouldn’t more alumni promote their schools and contribute more funds sooner if they were not left to sink or swim post-graduation?

Employers benefit because they would have better prepared new-attorney employees. Thus, they would be more enthusiastic about hiring graduates sooner for higher starting pay.

To resolve this constitutional crisis, Congress and the states must promptly provide meaningful funds to pay attorneys to represent impoverished civil litigants who face severe deprivation of their civil liberties in a similar fashion as they provide for criminal defendants. State bar associations and law schools should continue providing free or inexpensive labor except they should do so on a significantly grander scale.

But until proper resources are provided, courts have no choice but to use their inherent authority to compel practicing attorneys to assist these civil litigants. This also helps courts run more efficiently and restore public trust in the legal system. Unfortunately, until Congress and the states act, the courts’ patchwork solution remains on the backs of attorneys in private practice.

*Mark P. Yablon will graduate in May 2018 from the University of Arkansas at Little Rock William H. Bowen School of Law. Upon passing the bar, he will practice with Pittenger, Nuspl & Crumley in commercial litigation, family law, personal injury, and estate planning in north Texas. He is an executive editor of the Arkansas Journal of Social Change and Public Service and president of Bowen’s law student divisions of The Federalist Society, Federal Bar Association, and Pulaski County Bar Association.
[2] Johnson v. Zerbst, 304 U.S. 458 (1938) is the landmark case holding the Sixth Amendment guarantees all criminal defendants—not just capital defendants—free legal counsel if they cannot afford counsel. Gideon v. Wainwright, 372 U.S. 335 (1963) extended this fundamental right to the states through the Fourteenth Amendment.
[3] Miranda v. Arizona, 384 U.S. 436 (1966) is the landmark Fifth Amendment case that guarantees arrestees the rights to remain silent and to have counsel present once in police custody.
[4] Brown v. McGarr, 774 F.2d 777, 781 (7th Cir. 1985).
[5] Id. at 781-82 quoting 28 U.S.C. § 2071.
[6] Fed. R. Civ. P. 83.
[7] Young v. United States ex rel. Vuitton Et Fils S.A., 481 U.S. 787 (1987).
[8] Brown v. McGarr, 774 F.2d 777, 782 (7th Cir. 1985) citing Theard, 354 U.S. at 281: Ex Parte Secombe, 60 U.S. (19 How.) 9, 13 (1856); see generally State v. Cannon, 206 Wis. 374 (1932) (reviewing cases from the Middle Ages to the nineteenth century).
[9] Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221, 1225 (D. Neb. 1995) citing United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812) (“our courts no doubt possess powers not immediately derived from statutes”); Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962) (stating inherent powers are “governed not by rule or statute”).
[10] Id. citing Anderson v. Dunn, 19 U.S. 204, 227 (1821) (“[c]ourts of justice are universally acknowledged to be vested, by their very creation, with power to impose . . . submission to their lawful mandates”).
[11] Id. at 1227.
[12] Id. at 1229.
[13] Id.
[14] Id.
[15] Id.
[16] Naranjo v. Thompson, 809 F.3d 793 (5th Cir. 2015).
[17] Id. at 795.
[18] Id.
[19] Id.
[20] Id.
[21] Id. at 801-02.
[22]Naranjo v. Thompson, 809 F.3d at 801–02.
[23] Id. at 795.
[24] Id.
[25] Bothwell v. Republic Tobacco Co., 912 F. Supp. at 1230 citing Louise G. Trubek, The Worst of Times . . . The Best of Times: Lawyering for Poor Clients Today, 22 Fordham Urb. L.J. 1123 (1995).
[26] Id. at 1229 citing Talamini v. Allstate Ins. Co., 470 U.S. 1067 at 1070-71, 85 L. Ed. 2d 125, 105 S. Ct. 1824 (1985) (Stevens, J., concurring) (“courts provide the mechanism for peaceful resolution of disputes that might otherwise give rise to attempts at self-help”); The Federalist No. 10, at 104 (J. Madison) (Hamilton ed. 1868) (warning against society where “measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority”).
[27] Brown, 774 F.2d at 782 citing Randall v. Brigham, 74 U.S. (7 Wall.) 523, 540 (1869).
[28] Particularly the Second, Third, Fifth, Seventh, Eighth, and Ninth circuits. See Naranjo, 809 F.3d 793.
[29] Naranjo, 809 F.3d at 805.
[30] See Advisory Committee on New York State Pro Bono Bar Admission Requirements: Report to the Chief Judge of the State of New York and the Presiding Justices of the Four Appellate Division Departments, September 2012, http://www.nycourts.gov/attorneys/probono/ProBonoBarAdmissionReport.pdf.
[31] Interview with James W. McCormack, Clerk of Court, U.S. District Court for the Eastern District of Arkansas, in Little Rock, Ark. (Oct. 25, 2017).
[32] Email from Scott Strauss, attorney in private practice in Little Rock, Ark., to author (Apr. 4, 2018, 11:45 CST) (on file with author).
[33] James M. Moody & Mark P. Yablon, Indigents in § 1983 Civil Rights Claims Deserve Appointed Legal Representation, The Ark. Law., Winter 2018, at 24, https://issuu.com/arkansas_bar_association/docs/winter_2018_issuu_9d354ee204e629.
[34] Email from Scott Strauss, attorney in private practice in Little Rock, Ark., to author (Apr. 2, 2018, 07:08 CST) (on file with author).
[35] Email from John DiPippa, Interim Dean and Distinguished Professor of Law and Public Policy, UA Little Rock William H. Bowen School of Law, to author (Apr. 3, 2018 12:36 CST) (on file with author).
[36] See American Bar Association, ABA Groups, Standing Committee on the Delivery of Legal Services, Initiatives & Awards, Legal Incubators,   https://www.americanbar.org/groups/delivery_legal_services/initiatives_awards/program_main.html.
[37] Id.
[38] See 2016 Comprehensive Survey of Lawyer Incubators: ABA Standing Committee on the Delivery of Legal Services (August 2016), https://www.americanbar.org/content/dam/aba/administrative/delivery_legal_services/ls_del_comprehensive_survey_lawyer_incubators.authcheckdam.pdf.