Walking Before Running: Implementation of a Right to Counsel in Civil Cases

Walking Before Running: Implementation of a Right to Counsel in Civil Cases By John Pollock, ABA Section on Litigation Civil Right to Counsel Fellow 1 Public Justice Center In Gideon v. Wainwright, 372 U.S. 335 (1963), the U.S. Supreme Court held that indigent criminal defendants in state court felony cases have a categorical right to appointed counsel, replacing the Court s previous rule from Betts v. Brady, 316 U.S. 455 (1942), that made appointment of counsel a case-by-case determination. Although not explicitly mentioned in Gideon, the Court was apparently heavily influenced by the fact that a succession of cases had steadily eroded the old rule and proved it unworkable. Miranda v. Arizona, 384 U.S. 436, 532 (1986) (White, J., dissenting). At the same time that the Gideon Court acknowledged the unworkability of the Betts approach, it did not explain how the categorical right to counsel should be implemented to avoid any new unworkability issues. Indeed, such was not the Court s role; its job was only to determine whether the Sixth Amendment right to counsel was a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the states by the Fourteenth Amendment. Gideon, 372 U.S. at 340. Questions of implementation were thus left to the state legislatures. Nonetheless, implementation problems can wind up back in the courts; as the Missouri Supreme Court put it, Beyond simply ensuring that counsel is appointed to assist every defendant who faces the possibility of imprisonment, a judge also must ensure that the defendant has effective assistance of counsel Effective representation under the Sixth Amendment requires appropriate investigation, preparation and presentation of the client s case by counsel. State ex rel. Missouri Public Defender Com n v. Pratte, 298 S.W.3d 870, 875 (Mo. 2009). The indigent defense systems that have arisen to meet the demands of Gideon have been staffed by dedicated attorneys who have suffered through insufficient funding, extreme caseloads and lack of training. For instance, in Pratte, the Missouri Supreme Court noted that despite the imposition of statutory limits on the caseloads of public defenders, As of July 2009, every Missouri public defender office was over its calculated capacity under 18 CSR 10-4.010. 298 S.W.3d at 880. The court noted that this problem might one day oblige the court to decide whether to require attorneys to take uncompensated appointments or force the state to fund more attorneys. Id. at 889. On the civil side, the right to counsel has been significantly more limited due to the Supreme Court s 1981 decision of Lassiter v. Dep t of Social Services, 452 U.S. 18 (1981), or perhaps more accurately due to its interpretation by lower courts. In Lassiter, the Court established that in the proper case or category of cases, due process may require the appointment of statefinanced counsel. However, it instructed lower courts to apply the Mathews v. Eldridge factors (personal interest at stake, risk of erroneous deprivation, state s interest) to the case or type of case, and in cases where physical liberty is not at stake, balance these factors against a presumption that there is no right to counsel. In the decades since, many lower courts have incorrectly cited Lassiter for the proposition that there can never be a federal due process right to counsel except where physical liberty is at stake, ignoring the Court s mandate to apply a balancing test. Nonetheless, every state has created (via legislation or court decision) rights to counsel in some or all of the following civil areas: termination of parental rights, dependency, and cases where personal liberty is threatened (such as involuntary civil commitment, quarantine, and paternity). But at times, these new rights have been plagued by the same implementation problems as on the criminal side, as revealed by the fact patterns of some cases challenging such systems. For instance, California requires counsel to be appointed for most

Summer 2010 children in dependency proceedings. In E.T. v. George, F.Supp.2d, 2010 WL 121018 (E.D. Cal. 2010), a federal district court in California considered an appointment system where some public defenders were handling almost 400 dependency cases each and where there was an insufficient number of referees to hear the cases. The court commented that [t]he complaint depicts a court system in which the voices of these children are not heard and their stories are not told while important decisions affecting their health and welfare are being made. Desiring to address the seriousness of these implementation questions, the National Coalition for the Civil Right to Counsel (NCCRC) distributed a memo to all National Legal Aid and Defender Association members entitled Information for Civil Justice Systems About Civil Right to Counsel Initiatives. The memo explores some of the common questions raised about implementation of new civil rights to counsel and posits some responses and approaches to such concerns. This article explores how some of the newest on the ground efforts, such as pilot projects in Massachusetts and California, the American Bar Association s (ABA) Draft Model Act for the Civil Right to Counsel, and the ABA s Draft Basic Principles for a Right to Counsel in Civil Legal Matters respond to the types of implementation issues addressed in the NCCRC memo. By their very nature, pilots and model acts are testing-thewaters approaches that focus on implementation planning as well as data gathering in order to answer the questions inevitably raised by expansions of the right to counsel. What emerges is that a right to counsel can be made real in a way that is incremental, locally driven, fiscally responsible, accompanied by representation standards, appropriately timed, planned with the involvement and support of all necessary stakeholders, and integrated with existing legal services delivery systems. In fact, rather than creating more problems for legal aid, a carefully implemented and incremental civil right to counsel (created either via legislation or recognition by a state court of a constitutional right) can justify and encourage additional legal services funding by demonstrating cost efficiency, legal need, and feasibility. Pilot Programs In October 2009, California Governor Arnold Schwarzenegger signed into law AB 590, a bill establishing pilot programs to provide counsel in some cases involving basic human needs. The goals of the California pilots are to examine and demonstrate how a right to counsel could be implemented, gather information on both the scope of need for and potential savings derived from providing such counsel, evaluate the effectiveness of the model chosen, and foster new and innovative partnerships between courts and legal service providers to expand and improve representation. The California pilots are the result of a methodical process dating back to 1994, when the California State Bar s Working Group on Access to Justice produced a justice gap study that led to the creation of the California Access to Justice Commission (ATJC). Given that funding was tight at the time, advocates began to lay the groundwork for when the financial picture improved by taking such steps as seeking increased funding for legal aid and starting self-help centers. An important next step was the ATJC s creation of a Model Statute Task Force, which produced the California Basic Access Act and the California Equal Justice Act. AB 590 borrowed much language directly from the California Basic Access Act (particularly in the findings section), further demonstrating how the pilots were the culmination of a gradual process that laid the foundation for each next step. AB 590 enjoyed broad support from many local stakeholders across the political spectrum. It was championed by Chief Justice Ronald George and supported by the California State Bar, the Legal Aid Association of California, the California Access to Justice Commission, and even the California Chamber of Commerce (which has a seat on the Access to Justice Commission). In order to keep support broad, the pilots contain some limits to keep them fiscally acceptable. For instance, the judiciary previously increased the fee for certain postjudgment filings in order to pay for certain judicial expenses, and the bill redirects $10 of those filing fees to the pilots starting in mid-2011. However, once the pilots end, the fees will go back to their previous level, a fact that gained the support of parts of the business community. Additionally, because the pilots draw funding from court fees, they do not decrease the state s general revenue. Steps were taken to gain the support of existing legal services providers. To start, Assemblyman Mike Feuer, who introduced the bill, is a former legal services director. The bill also requires the pilot projects to be a partnership between the courts and existing legal services organizations. Moreover, the funding structure does not endanger existing funding for legal services, since the bill specifically states that [t]he services provided for in Section 5 of this act are not intended to,

Summer 2010 source, and this act does not override the local or national priorities of existing legal services programs. Moreover, while the draft Act allows the state administrating agency to contract with either legal services organizations or private attorneys as appropriate, the Act s Commentary suggests that appropriate times to use private attorneys are when a) the contract legal services organizations are unable to take the case for various reasons; or b) a private attorney has a particular area of expertise or experience that better serves the goals of effectiveness, cost-efficiency, and fair and equal access to justice. The Commentary also says that if eligibility and scope-of-service determinations are delegated by the administering agency, LSC and IOLTA-funded entities are automatically certified to be appointed to make such determinations. As with the pilot programs, the draft Act seeks to address the financial and administrative concerns raised by new rights to counsel. It only contemplates a right to counsel in five categories of cases (the five specified in the 2006 ABA Resolution), and suggests a cap on income eligibility at 125% of the federal poverty level. It would not provide representation in the following situations: a) in uncontested cases (unless the interests of justice require it); b) in non-adversarial proceedings (such as ones where there are relaxed rules of evidence or where the judge is more active in factfinding) and where the opposing side does not have legal representation and the litigant is able to self-represent; or c) in pre-litigation disputes (such as where the landlord has sent a tenant a Notice to Quit but has not yet filed a complaint in court). The current draft of the Act also suggests additional limits on the scope of representation. For instance, while both the Massachusetts and California pilots consider the merits of the litigant s case as one factor in whether to represent, the draft Act would go a step further and impose a prerequisite merits test, albeit a fairly liberal one, for all cases at the trial level. Indigent plaintiffs would be provided counsel if a basic human need is at stake and the plaintiff has a reasonable possibility of achieving a successful outcome, while defendants would be provided counsel unless they lack a non-frivolous defense. Moreover, the draft Act would allow limits on the type of legal services provided in some cases: it distinguishes between full representation and limited representation, with an administering agency determining which classes of cases or individual cases can receive fair and equal access to justice with only limited representation. However, the draft Act s Commentary calls for a presumption that limited representation is insufficient in proceedings where representation is only permitted by an attorney and the opposing party has full representation. The Commentary also suggests that this presumption cannot be overcome unless the administering agency finds the particular matter involves exceptional circumstances that allow the applicant to enjoy fair and equal access to justice despite this disadvantage. As additional feasibility insurance, Principle #6 from the draft ABA Basic Principles suggests that [c] aseload limits are established to ensure the provision of competent, ethical, and high quality representation. The comments to Principle #6 cite to developing ethics jurisprudence on the criminal side that attorneys with excessive workloads are obligated to decline the assignment of new cases, and the comments urge the state s appointing authority to set caseload standards and reasonable limits on the number of appointments a particular attorney can accept at any one time At the same time, Principle #8 would require appointed counsel to be fairly compensated and to be adequately supplied with all other resources necessary for fair representation. The drafts of both the Act and the Principles recognize the need for ongoing monitoring of the newly implemented rights. Principle #7 provides for ongoing evaluation of the performance of appointed counsel for quality, effectiveness, and efficiency. The Act suggests reporting and monitoring requirements for the administering agency that address the need for legal services, the sufficiency of the different types of legal services provided, and cost effectiveness issues. As seen above, the draft Act may have some differences from the two pilots, but its basic goal is the same: to demonstrate how a state could adopt limits and controls on the provision of counsel, integrate a right to counsel with the existing legal services delivery system, and provide for accountability as well as awareness of the efficacy of the counsel provided. The development of the Act, like the pilots, is an incremental step towards the right to counsel, but one that can build a strong base of support for the right as well as help to avoid the implementation pitfalls that have plagued new rights to counsel in the past. 1 John Pollock works for the Public Justice Center as the ABA Section of Litigation s Civil Right to Counsel Fellow, where he helps to coordinate the work of the National Coalition for the Civil Right to Counsel. Previously, John was the Enforcement Director for the Cen- Continued on page 15

Implementing a Civil Right to Counsel in Maryland MARYLAND ACCESS TO JUSTICE COMMISSION 2011 Maryland Access to Justice Commission 2011D Commerce Park Drive Annapolis, Maryland 21401 410-260-1258 www.mdcourts.gov/mdatjc

Letter from the Chair In its 2009 Interim Report, the Maryland Access to Justice Commission recommended Maryland support the principle that low-income Marylanders should have the right to counsel at public expense in basic human needs cases. Over the past year the Commission has explored the one question that has hampered consideration of this important initiative how might a civil right to counsel be implemented in our State? The Commission explored a range of implementation variables issues that would need to be resolved if a program or entity were created to provide counsel for the many individuals who would be entitled to assistance should a civil right to counsel ever be established by legislation or case law. The Commission also asked the unthinkable question what might it cost to provide meaningful access to counsel should the right be established? The enclosed document contains two parts. The first provides a substantive description of how a right might be implemented. The second provides a fiscal narrative, an effort to approximate a fiscal note for a civil right to counsel in Maryland. The Commission is publishing this document in an effort to advance the statewide conversation about a civil right to counsel, as one vehicle through which we might achieve the Commission s goal of equal access to justice for all. Sincerely, Irma S. Raker Maryland Court of Appeals (ret.) Chair, Maryland Access to Justice Commission

Arkansas Access To Justice Commission Pro bono committee Civil Right To Counsel Initiative Statement of Purpose: To identify cases in which the lack of counsel denies the constitutional rights of equal protection and due process to pro se litigants and to advocate for judicial recognition of and/or legislation that establishes a civil right to counsel in such situations. Background: Arkansas Code Annotated 9-27-316 provides a right to counsel in delinquency and family in need of services cases. However, the right has not been extended to other types of cases, including family law cases such as adoptions, in which parental rights can be terminated without a parent having the benefit of counsel. In Jefferson v. Arkansas Department of Human Services, 356 Ark. 647, 652-653, 158 S.W.3d 129, 133 (2004), the Arkansas Supreme Court discussed the civil right to counsel as follows in the context of an earlier version of Arkansas Code Annotated 9-27-316: We have explained that: Whether due process requires the appointment of counsel in a particular parental-termination proceeding is a matter for the trial court to determine, subject to appellate review. Lassiter v. Department of Soc. Servs., 452 U.S. 18, 32, 68 L. Ed. 2d 640, 101 S. Ct. 2153 (1981). Although it may be wise public policy for the States to adopt higher standards of protection for parents in dependency-neglect and termination proceedings, the threshold requirement for state courts in determining whether to appoint counsel to indigent parents in termination proceedings is fundamental fairness. Id., 452 U.S. at 33-34. Consequently, according to the Supreme Court, there is no absolute due process right to counsel in all parental-termination proceedings. Id. Rather, it is an issue that must be addressed on a case-by-case basis. Id. The State of Arkansas has chosen to allow the appointment of counsel for indigent parents in all parental-termination proceedings. ACA 9-27-316(h) (Supp. 1999). However, this is a Stateconferred statutory right. The due process right to counsel arises only if the circumstances of each particular case indicate that fundamental fairness requires the appointment of counsel. 1

Bearden v. Arkansas Dep't of Human Servs., 344 Ark. 317, 42 S.W.3d 397 (2001). In other states, the courts are expanding the civil right to counsel in a variety of cases in the family law area. Those developments are identified on the National Civil Right to Counsel website. The National Coalition for a Civil Right to Counsel has provided information and guidance to organizations like the Arkansas Access to Justice Commission that seek to expand the civil right to counsel. Steps: (1) Obtain approval of the initiative and the basic template by the Pro Bono Committee of the Arkansas Access to Justice Commission. Completed May 3, 2011. (2) Schedule a meeting of stakeholders, including, but not limited to, the officers of the Arkansas Access to Justice Commission, the members of AAJC's Pro Bono Committee, and the executive directors, HelpLine managing attorneys and other key personnel of the Center for Arkansas Legal Services, Inc. and Legal Aid of Arkansas, Inc. to deliberate and approve the initiative and to discuss how it should be implemented. (3) Select a volunteer coordinator and recruit a coordinating team for the initiative. (4) The coordinating team prepares a white paper concerning any potential ethical issues associated with assisting a pro se party in making a record on the right to counsel. (5) In consultation with the National Coalition for a Civil Right to Counsel, the volunteer coordinator and coordinating team identify types of cases in which (a) a civil right to counsel has been recognized in other states and (b) the fact pattern lends itself to extending Arkansas law to recognize a civil right to counsel. (6) Recruit pro bono attorneys to develop a form motion and memorandum brief on each of the types of cases in paragraph (5) above. (7) Create a resource page with the form briefs and the names of resource persons with whom pro bono lawyers can consult in making the best arguments for recognition of the civil right to counsel. (8) Create a panel of pro bono trial and appellate lawyers who can, as needed, make arguments in trial and appellate proceedings. 2

(9) In coordination with the executive directors of Center for Arkansas Legal Services, Inc. and Legal Aid of Arkansas, Inc., track cases selected by the executive directors and the coordinating team for advocating a civil right to counsel. (10) Establish a legislative group within the coordinating team to prepare a white paper (a) discussing statutes enacted in other states regarding the civil right to counsel; (b) addressing how the counsel and any related program are funded; (c) drafting suggested legislation for consideration by the Arkansas legislature with accompanying legislation for funding; and (d) setting forth a proposed advocacy plan for the enactment of such legislation in Arkansas. 3

D1 HOUSE BILL 265 2lr1298 CF SB 280 By: Chair, Judiciary Committee (By Request Maryland Judicial Conference) Introduced and read first time: January 27, 2012 Assigned to: Judiciary A BILL ENTITLED 1 2 3 4 5 6 7 8 9 10 11 12 13 AN ACT concerning Task Force to Study Implementing a Civil Right to Counsel in Maryland FOR the purpose of establishing the Task Force to Study Implementing a Civil Right to Counsel in Maryland; providing for the composition, chair, and staffing of the Task Force; prohibiting a member of the Task Force from receiving certain compensation, but authorizing the reimbursement of certain expenses; requiring the Task Force to study and make recommendations regarding certain matters; requiring the Task Force to report its findings and recommendations to certain public officials on or before a certain date; providing for the termination of this Act; and generally relating to the Task Force to Study Implementing a Civil Right to Counsel in Maryland. SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, That: 14 15 16 (a) Maryland. (b) There is a Task Force to Study Implementing a Civil Right to Counsel in The Task Force consists of the following members: 17 18 19 20 21 22 23 24 (1) three members of the Senate of Maryland, appointed by the President of the Senate; (2) three members of the House of Delegates, appointed by the Speaker of the House; (3) three members appointed by the Governor, one of whom shall be an attorney who is a member of the Maryland State Bar Association and who is appointed after consultation with the President of the Maryland State Bar Association and one of whom shall be an attorney or a legal provider or both; and EXPLANATION: CAPITALS INDICATE MATTER ADDED TO EXISTING LAW. [Brackets] indicate matter deleted from existing law. *hb0265*

2 HOUSE BILL 265 1 2 3 4 (4) three members who are representatives of the Judiciary, appointed by the Chief Judge of the Court of Appeals. (c) The Chief Judge of the Court of Appeals shall designate the chair of the Task Force, who shall have a vote in the recommendations of the Task Force. 5 6 7 8 (d) Task Force. (e) The Maryland Access to Justice Commission shall provide staff for the A member of the Task Force: (1) may not receive compensation as a member of the Task Force; but 9 10 (2) is entitled to reimbursement for expenses under the Standard State Travel Regulations, as provided in the State budget. 11 (f) The Task Force shall: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 (1) study the current resources available to assist in providing counsel to low income Marylanders compared to the depth of the unmet need, including the resulting burden on the court system and the stress on other public resources; (2) study whether low income Marylanders should have the right to counsel at public expense in basic human needs cases, such as those involving shelter, sustenance, safety, health, or child custody, including review and analysis of the Maryland Access to Justice Commission s Implementing a Civil Right to Counsel in Maryland report and each other previous report by a task force, commission, or workgroup on this issue; (3) study alternatives regarding the currently underserved citizenry of the State and the operation of the court system; (4) study how the right to counsel might be implemented in Maryland; (5) study the costs to provide meaningful access to counsel and the savings to the court system and other public resources; (6) study the possible revenue sources; and 27 28 subsection. (7) make recommendations regarding the matters described in this 29 30 31 32 (g) On or before October 1, 2013, the Task Force shall report its findings and recommendations to the Governor, the Chief Judge of the Court of Appeals, and, in accordance with 2 1246 of the State Government Article, the President of the Senate, the Speaker of the House, the Senate Budget and Taxation Committee, the

HOUSE BILL 265 3 1 2 3 4 5 6 Senate Judicial Proceedings Committee, the House Appropriations Committee, and the House Judiciary Committee. SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect October 1, 2012. It shall remain effective for a period of 1 year and, at the end of September 30, 2013, with no further action required by the General Assembly, this Act shall be abrogated and of no further force and effect.

GENERAL ASSEMBLY OF NORTH CAROLINA SESSION 2011 H 1 HOUSE BILL 868 Short Title: Appointment of Counsel Funds. (Public) Sponsors: Referred to: Representatives M. Alexander, Bordsen, Glazier, and Harrison (Primary Sponsors). For a complete list of Sponsors, see Bill Information on the NCGA Web Site. Appropriations. April 21, 2011 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 A BILL TO BE ENTITLED AN ACT TO APPROPRIATE FUNDS TO INCREASE ACCESS TO COUNSEL IN CIVIL CASES. Whereas, the North Carolina Constitution provision for open and fair civil courts and Tribunals of Justice is one of the fundamental guarantees of our constitutional democracy and a historic legacy of this State; and Whereas, the greater availability of competent legal assistance is essential to making our courts and tribunals open and fair, especially when there are complex factual and legal issues, the nature of the interests affect shelter, sustenance, safety, health, or family integrity, and the potential consequences of the outcome on the unrepresented party may be severe; and Whereas, civil legal representation is often necessary for individuals to protect such basic human needs as shelter, sustenance, safety, health, or family integrity; and Whereas, many of our State's citizens cannot afford legal representation for cases involving vital decisions about their lives and families, and over one-third of North Carolinians, nearly 3.2 million persons, are now eligible for federally subsidized legal assistance which is not adequate to meet the great need; Now, therefore, The General Assembly of North Carolina enacts: SECTION 1.(a) The North Carolina State Bar shall develop protocols and make awards of fifty thousand dollars ($50,000) each to three geographically dispersed judicial districts to establish a Provision of Counsel Committee in each district to develop a plan to determine to what extent counsel is needed in civil cases affecting basic human needs and the most efficient and effective method for doing so, considering all existing and local resources. SECTION 1.(b) The Provision of Counsel Committees chosen for each of the three pilot projects shall evaluate the existing justice system in that judicial district to identify areas of the law in which basic human needs are at stake, such as those involving shelter, sustenance, safety, health, or family integrity, and shall determine where the provision of counsel is needed to ensure that individuals in that district secure fair results. Such evaluation shall determine the following: (1) The categories of cases requiring counsel. (2) The subcategories of cases in which counsel is necessary as a result of being contested, complex, or urgent matters. (3) The levels of financial need that should trigger the provision of counsel. (4) The categories of individuals with limitations of literacy, disability, age, and of other natures that are in need of counsel. *H868-v-1*

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 General Assembly of North Carolina Session 2011 (5) The costs of establishing a provision of counsel system in the particular judicial district. SECTION 1.(c) Each Provision of Counsel Committee shall consist of at least seven members, including the senior resident superior court judge and the chief district court judge. The senior resident superior court judge, in consultation with the chief district court judge, shall appoint the remaining members, including at least the following: (1) A clerk of court from the district. (2) A representative from the judicial district bar association. (3) A representative from the local established legal services provider as defined in G.S. 7A-474.2(1a). (4) A representative of State or local government. (5) A representative of the North Carolina Equal Access to Justice Commission. SECTION 1.(d) Each Provision of Counsel Committee shall prepare a written report of its deliberations and findings and provide the report to the General Assembly no later than April 1, 2012. SECTION 2. There is appropriated from the General Fund to the North Carolina State Bar the sum of one hundred fifty thousand dollars ($150,000) for the 2010-2011 fiscal year to provide fifty thousand dollars ($50,000) grants to three judicial districts to establish a Provision of Counsel Committee to study and develop a plan for provision of counsel in certain civil cases as provided in Section 1 of this act. SECTION 3. This act becomes effective July 1, 2011. Page 2 House Bill 868-First Edition

GENERAL ASSEMBLY OF NORTH CAROLINA SESSION 2009 H 1 HOUSE BILL 1915 Short Title: Appointment of Counsel Funds. (Public) Sponsors: Referred to: Representatives Glazier, M. Alexander, Bordsen (Primary Sponsors); and Harrison. Judiciary II, if favorable, Appropriations. May 20, 2010 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 A BILL TO BE ENTITLED AN ACT TO APPROPRIATE FUNDS TO INCREASE ACCESS TO COUNSEL IN CIVIL CASES, AS RECOMMENDED BY THE NORTH CAROLINA EQUAL ACCESS TO JUSTICE COMMISSION. Whereas, the North Carolina Constitution provision for open and fair civil courts and Tribunals of Justice is one of the fundamental guarantees of our constitutional democracy and an historic legacy of this State; and Whereas, the greater availability of competent legal assistance is essential to making our courts and tribunals open and fair, especially when there are complex factual and legal issues, the nature of the interests affect shelter, sustenance, safety, health, or family integrity, and the potential consequences of the outcome on the unrepresented party may be severe; and Whereas, civil legal representation is often necessary for individuals to protect such basic human needs as shelter, sustenance, safety, health, or family integrity; and Whereas, many of our State's citizens cannot afford legal representation for cases involving vital decisions about their lives and families, and over one-third of North Carolinians, nearly 3.2 million persons, are now eligible for federally-subsidized legal assistance, which is not adequate to meet the great need; Now, therefore, The General Assembly of North Carolina enacts: SECTION 1. G.S. 7A-451 is amended by adding a new subsection to read: "(g) In any civil case, the court may appoint an attorney to represent any person unable to afford counsel. In determining whether to exercise the discretion to appoint an attorney, the court shall consider the totality of circumstances relevant to the need for representation in the particular case, including such factors as: (1) The complexity of the factual and legal issues in the case. (2) The nature of the interests at stake, and particularly whether the case impacts basic human needs, including shelter, sustenance, safety, health, and family integrity. (3) The severity of potential consequences that the outcome may have for the unrepresented party. (4) The extent to which appointment of counsel in the case will assist in the administration of justice. The court may revoke the appointment of counsel or take other appropriate action if the court determines that the allegation of poverty is untrue or the case is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. *H1915-v-1*

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 General Assembly of North Carolina Session 2009 The appointment of counsel as provided in this subsection and the procedure for compensation shall comply with rules adopted by the Office of Indigent Defense Services. The services provided for under this subsection are not intended to and shall not supplant legal services resources supplied by any other source, and this subsection does not override the local or national priorities of existing civil legal services programs." SECTION 2.(a) The Office of Indigent Defense Services shall develop protocols and make awards of twenty-five thousand dollars ($25,000) each to three geographically-dispersed judicial districts to establish a Provision of Counsel Committee in each district to develop a plan to determine to what extent counsel is needed in civil cases affecting basic human needs and the most efficient and effective method for doing so, considering all existing and local resources. SECTION 2.(b) The Provision of Counsel Committees chosen for each of the three pilot projects shall evaluate the existing justice system in that judicial district to identify areas of the law in which basic human needs are at stake, such as those involving shelter, sustenance, safety, health, or family integrity, and shall determine where the provision of counsel is needed to ensure that individuals in that district secure fair results. Such evaluation shall determine: (1) The categories of cases requiring counsel. (2) The subcategories of cases in which counsel is necessary as a result of being contested, complex or urgent matters. (3) The levels of financial need that should trigger the provision of counsel. (4) The categories of individuals with limitations of literacy, disability, age, and of other natures are in need of counsel. (5) The costs of establishing a provision of counsel system in the particular judicial district. SECTION 2.(c) Each Provision of Counsel Committee shall consist of at least seven members, including the senior resident superior court judge and the chief district court judge. The senior resident superior court judge, in consultation with the chief district court judge, shall appoint the remaining members, including at least the following: (1) A clerk of court from the district. (2) A representative from the judicial district bar association. (3) A representative from the local established legal services provider as defined in G.S. 7A-474.2(1a). (4) A representative of State or local government. (5) A representative of the North Carolina Equal Access to Justice Commission. SECTION 2.(d) Each Provision of Counsel Committee shall prepare a written report of its deliberations and findings and provide the report to the General Assembly no later than April 1, 2011. SECTION 3. There is appropriated from the General Fund to the Judicial Department, Office of Indigent Defense Services, the sum of two hundred thousand dollars ($200,000) for the 2010-2011 fiscal year to provide counsel in cases pursuant to G.S. 7A-451(g), as enacted in Section 1 of this act. SECTION 4. There is appropriated from the General Fund to the Judicial Department, Office of Indigent Defense Services, the sum of seventy-five thousand dollars ($75,000) for the 2010-2011 fiscal year to provide twenty-five thousand dollars ($25,000) grants to three judicial districts to establish a Provision of Counsel Committee to study and develop a plan for provision of counsel in certain civil cases as provided in Section 2 of this act. SECTION 5. This act becomes effective July 1, 2010. Page 2 House Bill 1915-First Edition