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‘Civil Gideon’: The right to counsel in civil cases

California has become the first state to enact a law guaranteeing the right to counsel to the poor in some civil cases. Will these rights be extended in Minnesota?

In 1963, in the case of Gideon v. Wainwright, the U.S. Supreme Court ordered the states to provide an attorney for criminal defendants who could not afford their own. The Sixth Amendment says: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”

The decision ended decades of uncertainty as to when a state must provide a lawyer to criminal defendants. Writing for the court, Justice Hugo Black said, “The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.”

‘Civil Gideon’
Since Gideon was decided, some have argued that impoverished parties in civil cases should also have the right to counsel. The consequences of civil cases, especially those involving property rights, can be just as devastating as the consequences of criminal prosecution. For example, while a defendant charged with DUI will probably pay only a few hundred dollars as a fine, a defendant in an eviction or foreclosure may lose his or her home.

In 2005, Michael Greco, then president of the American Bar Association, called on lawyers to support the right to counsel in civil cases, often called “civil Gideon.” In 2006, the ABA passed a resolution supporting civil Gideon. Since the U.S. Constitution does not mention any such right, it falls to the states to give civil parties the right to counsel.

Last month, California became the first state to enact a law guaranteeing the right to counsel to the poor in some civil cases, such as child custody, eviction and foreclosure cases. Other states do provide legal counsel in some civil proceedings, such as commitment. A few provide counsel in certain custody or eviction cases as well. But none have gone so far as California.

Efforts to bring civil Gideon to Minnesota
The Minnesota State Bar Association was one of 13 state bar associations to endorse the ABA’s resolution in 2006, and in August 2007, the MSBAcreated a task force to explore civil Gideon.  The Legal Assistance to the Disadvantaged Committee, which created the task force, observed that, while Minnesota has a relatively well-funded legal services system, it meets only 20 to 25 percent of the need. The MSBA’s Civil Gideon Task Force meets every few months and recently worked on a civil Gideon seminar [PDF] at the University of St. Thomas School of Law.

So far, although Minnesota does give the right to counsel [PDF] in some instances, the Legislature has not made any attempts to extend the right to counsel. In the current economic climate, this is probably not surprising. But in the current economic climate, more Minnesotans could use a little legal help than ever before.