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Law Review Symposium: Civil Right to Counsel

Monday, April 15, 2013   (0 Comments)
Posted by: Robert Green
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Fifty years ago last month, the Supreme Court issued its decision in the landmark case of Gideon v. Wainwright (1963), holding that due process requires that criminal defendants be provided with counsel at trial. Justice Hugo Black’s opinion for the unanimous Court relied as much on common sense as constitutional doctrine: He wrote that "reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.”

On Friday, March 29th, the UDC Law Review celebrated this anniversary with its annual symposium titled "Expanding the Civil Right to Counsel: 50 Years After Gideon.” The Supreme Court fundamentally re-shaped the field of criminal law with Gideon, but fifty years later, low-income litigants in civil cases lack a right to counsel, even as they are routinely faced with the jeopardy of their homes, termination of their rights as parents, deportation, or loss of vital government benefits. In some jurisdictions, legislatures or courts have created civil counsel entitlements under state constitutions, through state statutes, or through court rules. The resulting patchwork is hardly adequate to ensure the uniform and fair administration of justice for civil litigants who cannot afford an attorney. At the same time, however, serious questions about the quality of representation that states provide to indigent criminal defendants linger, fifty years after Gideon, and cast doubt on the practical wisdom of a full civil counsel entitlement.

The symposium brought together a national group of experts from a diverse array of backgrounds to discuss the state of access to counsel both nationally and in the District of Columbia fifty years after Gideon. Public Justice Center staff attorney John Pollock, who coordinates the National Coalition for a Civil Right to Counsel, presented a jurisdiction-by-jurisdiction overview of civil counsel entitlements and access-to-justice issues. Professor Latisha Gotell Faulks of the John Marshall Law School in Atlanta discussed her article on the sometimes fuzzy boundary between criminal appeals, which are within the scope of Gideon’s guarantee of counsel to criminal cases, and post-conviction relief (PCR) applications, which the Court has held is outside the scope of Gideon. Faulks argued that principles of substantive due process require constitutionally effective counsel in PCR applications, a view that recently received support from the Court’s ruling in Martinez v. Schriro (2010)—and which may hold the seeds of doctrinal developments that expand Gideon’s protections into nominally "civil” cases.

Professor Barbara Creel of the University of New Mexico School of Law, a member of the Pueblo of Jemez people, discussed her article on access to counsel for indigent Native Americans facing legal proceedings in tribal courts, which are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel guarantees. Professor Creel noted that notions of tribal sovereignty often manifest as resistance to the imposition of an adversarial legal system—including the use of professional advocates.

The final morning panel surveyed the access-to-counsel work of the UDC-DCSL clinical program. Professor Charles Jeane of the UDC-DCSL Low-Income Taxpayer Clinic and Judge Peter J. Panuthos of the United States Tax Court discussed their joint work on behalf of unrepresented taxpayers in the U.S. Tax Court system, as well as the access-to-counsel implications of the Supreme Court’s ruling in Turner v. Rogers (2011). Professor Dan Clark of the UDC-DCSL Housing and Consumer Law Clinic, who previously directed the D.C. Superior Court’s Landlord Tenant Resource Center, discussed the clinic’s access-to-justice work and the expansion of the clinic into a hybrid model that includes both full representation and court-based "unbundled” services. Professor Clark explained why this model is beneficial both for litigants whom the clinic lacks the capacity to fully represent, has pedagogical benefits for clinical students, and suggests that full representation and brief services models can be complimentary to each other.

The first two afternoon panels focused on access to counsel in immigration proceedings—a key component of the ongoing effort to reform the nation’s immigration system. Professor Mark Noferi of the Brooylyn Law School and Professor Erin Corcoran of the University of New Hampshire School of Law discussed the application of Gideon to immigration cases. Erin Corcoran discussed her work arguing that efforts to create counsel entitlements for defendants in removal proceedings have failed and that advocacy efforts should focus on non-lawyer representatives. Noferi presented his work, which argues for further empirical research to define and test the distinctions between lawyers and non-lawyer immigration advocates. Professor Maurice Hew, who directs Clinical Legal Education at Thurgood Marshall School of Law in Houston, joined with practitioners Carla Reyes, of Perkins Coie LLP, and Careen Shannon, of Fragomen, Del Rey, Bernsen & Loewy LLC, to present their work on access to justice in the immigration context.

Finally, Professor Clare Pastore of the USC Gould School of Law presented her work on the preliminary findings of civil Gideon pilot projects that are currently operating in California, Boston, and elsewhere.

Also during the afternoon sessions, the outgoing editorial board introduced the 2013-2014 UDC Law Review editorial board: Editor in Chief Julia Gagne, Managing Editor Johan Fatemi, Publications Editors Sean Brown and Jamila Shand, Articles Editor Carolyn Singh, Notes Editor Megan Stokesberry, Symposium Editor John Kinney, Section Editor for Online Content Amanda Utterback, Communications Editor Peter Offen, and Harrison Magy, who will oversee the development of a new annual feature on developments in D.C. law.

View photos from the symposium on Flickr or watch videos of the symposium presentations below. Past law review publications dating back to 1992 are available on the Law Review website, including the recently released fall 2012 issue.

Watch the video playlist above or click a title below to view that session on Youtube.

Symposium Sessions

Introduction

Setting the Stage Part 1Part 2Part 3
John Pollock presents a jurisdiction-by-jurisdiction overview of civil counsel entitlements and access-to-justice issues.

Conceptual Probing
Latisha Gotell Faulks discusses her article on the sometimes fuzzy boundary between criminal appeals, which are within the scope of Gideon‘s guarantee of counsel to criminal cases, and post-conviction relief (PCR) applications, which the Court has held is outside the scope of Gideon. Faulks argues that principles of substantive due process require constitutionally effective counsel in PCR applications, a view that recently received support from the Court’s ruling in Martinez v. Schriro. Does the fuzzy boundary between criminal appeals and PCR applications have the potential to prompt doctrinal developments that might result in the expansion of due process counsel entitlements to nominally “civil” actions?

Parallel, Alternative History
Barbara Creel discusses her article on access to counsel for indigent Native Americans facing legal proceedings in tribal courts, which are not bound by Fifth Amendment due process guarantees and Sixth Amendment right to counsel guarantees.

Access to Justice and the UDC-DCSL Clinical Program
Judge Peter J. Panuthos and Professor Charles Jeane discuss the access-to-counsel implications of Turner v. Rogers and the steps taken by the U.S. Tax Court and the UDC-DCSL Low Income Taxpayer Clinic to increase access to justice for unrepresented litigants. Professor Daniel Clark discusses the expansion of the UDC-DCSL Housing & Consumer Law Clinic into brief legal services, through the D.C. Superior Court’s Landlord Tenant Resource Center.

The Right to Counsel in Immigration and Removal Cases, Part 1
Mark Noferi and Erin Corcoran discuss civil Gideon in the immigration context, and alternatives to a constitutional guarantee of representation.
- Erin Corcoran presents her work arguing that efforts to create counsel entitlements for defendants in removal proceedings have failed, and that advocacy efforts should focus on nonlawyer representatives and forms of “unbundled” services.
- Mark Noferi discusses his work arguing for further empirical research to define and test the distinctions between lawyers and non-lawyer immigration advocates, and to examine the implications of “two-tiered” representation for the larger civil Gideon debate.

The Right to Counsel in Immigration and Removal Cases, Part 2
Maurice Hew, Carla Reyes, and Careen Shannon discuss their articles on the right to counsel in the immigration context:
- Expanding the Civil Immigration Privilege of Being Represented by Counsel through the 6th Amendment’s Presumed Prejudice Doctrine, Professor Maurice Hew, Clinical Director and Associate Professor of Law, Thurgood Marshall School of Law
- Appointed Counsel in Removal Proceedings: A Case Study for Exploring the Legal and Societal Imperative to Expand the Civil Right to Counsel, Carla L. Reyes, Perkins Coie LLP
- Immigration is Different: Why Congress Should Create a Statutory Right to Counsel in Immigration Matters, Careen Shannon, Adjunct Professor, Benjamin N. Cardozo School of Law, Fragomen, Del Rey, Bernsen & Loewy, LLP

Civil Gideon Pilot Projects
Clare Pastore presents her article on right to counsel pilot projects in California, Boston, and elsewhere.

 


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