January 24, 2011
Actualizing a Civil Right to Counsel
The Maryland Access to Justice Commission recently released its report Implementing a Civil Right to Counsel in Maryland, a strategy paper for implementing a state-paid civil right to counsel, or Civil Gideon, in that state.
The report advocates for a civil right to counsel in cases involving basic human needs--shelter, sustenance, safety, health, child custody, and others. (This approach is consistent with a 2010 recommendation of the ABA.) It also advocates for a right to counsel on appeal in these cases.
The report comes seven years after a sharply divided Maryland Court of Appeals, the state's high court, declined to rule on a claimed right to counsel in Frase v. Barnhart, a child custody case. (The court agreed on the result in the case, but the dissent would have reached the right-to-counsel issue.) The petitioner in Frase argued that the Declaration of Rights in the Maryland Constitution required court-appointed counsel (under the "law of the land" clause, the "open courts" provision, and the due process clause), thus sidestepping the Fourteenth Amendment Due Process Clause and Lassiter v. Dep't of Social Services (holding that the Due Process Clause does not require appointed counsel in all civil cases, and that there's a presumption that there is no right to appointed counsel where physical liberty is not at stake).
The report also looks to the need for legal services in basic human needs cases and estimates that 344,470 poor Marylanders have unmet legal needs. According to the report, it would cost $106.6 million to provide them with an attorney.
For more on the civil right to counsel, check out the National Coalition for a Civil Right to Counsel.
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