Pro Bono Net is pleased to reprint this column by Tiela Chalmers, Executive Director of the Bar Association of San Francisco’s Volunteer Legal Services Program and a Pro Bono Net board member. VLSP is the host for Probono.net/bayarea, one of four Probono.net sites for California attorneys. [See sidebar to learn more about online advocate resources in California.]
By Tiela Chalmers, Executive Director of VLSP
As the gay marriage issue winds its way back and forth through the Courts and the polling booths, I try to explain to my kids that, within my lifetime, it was illegal for an interracial couple to marry in many places in America. They look at me as if either I am very old, or very crazy (or possibly both). They believe – as they should – that equality and fairness are fundamental to American law and culture. How is it possible that a nation founded on the principle that all people are created equal, could have suffered such discriminatory rules for so long? And imagine what they say when I tell them that poor people have no right to an attorney in civil cases.
It’s not just my kids. You’d be surprised how many well-educated adults – journalists, politicians – even judges - believe that poor people have a right to an attorney in civil cases. Our belief in the fundamental fairness of our justice system leads us to assume that there is a right to counsel, at least when someone is faced with eviction, or a challenge to the custody of their children. After all, isn’t the entire legal system premised on each side having an attorney? Again, the fact that in my lifetime low-income criminal defendants did not have a right to counsel, and could be convicted and even sentenced to death without an attorney, is difficult to believe. (Ok, alright, I AM old. This, however, is not the point.). Thankfully, Gideon v. Wainwright has come to be viewed as part and parcel of what it means to be American.
But no, Virginia – there is no right to counsel in civil cases.
So far, we have tried to fill this huge gap with legal aid and pro bono lawyers. But the gap has gotten bigger, and our resources have gotten smaller. In California, 80% of all litigants in family law matters appear without counsel. Imagine standing by yourself in court while the custody and safety of your children were at stake, and the opposing party’s attorney talked confidently to the judge about the hearsay rule and orders to show cause. Now imagine doing that with only a high school education, or if your first language was not English.
One of the most remarkable legacies of our outgoing Chief Justice, Ronald George, is his hard work to gain passage of the Sargent Shriver Civil Counsel Act this year. This Act uses a small court fee to fund the creation of pilot projects in California, to explore what the right to counsel might look like in civil cases where important rights are at stake.
Applications for this funding are just now being considered by a committee (VLSP has applied, as have many other organizations throughout the state.) Projects are to start next fall, and continue for 6 years, with a very intensive and careful evaluation piece built in. We stand, in other words, at the brink of another historic step in fairness. Imagine what we can tell kids in another 30 or 40 years – in my life time, there was no right to counsel in civil cases! I can almost promise you that our kids will dismiss us as old and crazy. But so be it.