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Civil Gideon and Public Policy

Posted By on April 9, 2015

While the majority of Americans know they have a right to counsel when charged with a crime where imprisonment is the punishment, most don’t know that the right wasn’t applicable to the States until 1963 when the Supreme Court decided the case Gideon v. Wainwright, 372 U.S. 335 (1963). The court reasoned that the Sixth Amendment guaranteed this right in criminal actions. However, there is no such guarantee for civil actions, even those where a fundamental right is concerned. Only Massachusetts has recognized a right to an attorney in civil actions512px-Parenting where the guardianship of a child is at issue. In every other state, parents whose children have been removed from their custody are not entitled to representation, with disastrous results.

In a recent case involving the death of a child, an Alabama grandmother was convicted of murder after forcing her nine-year-old granddaughter to run for hours.  The girl’s father had custody of her after he used child protective services to harass the mother and hired an attorney to pressure her into giving up custody. After that, he took the child away, in direct violation of the custody agreement. The girl’s mother fought to regain custody of her for over three years. She was granted visitation rights in time to hold her daughter as she died. One cannot help but wonder if the outcome would have been different if the child’s mother would have had the benefit of counsel.

What are the public policy considerations, pro and con, when considering amending the U.S.Constitution to guarantee legal representation in civil proceedings where the individual’s life, liberty, or property interests are at stake?

About the author

Jerri L. Cook is a recognized leader in rural media. She holds a B.S. in Organizational Communications and a Juris Doctor (J.D.) from Concord Law School. Exceptional legal research and writing is essential to providing effective counsel. With her proven record of excellence, Jerri L. Cook provides effective trial support for attorneys who find themselves with only a 24-hour day. Her background in communications, including content creation and internet programming, complement her academic focus on Cyber Law. E-Discovery can be daunting, but with Jerri L. Cook on the team, digital information is readily discovered and retrieved. Contact her at 715.257.4363.

Comments

  • Brenda Nelson-Porter

    Prior to changing public policies, an assessment/evaluation of current and past outcomes of current and former policies should be conducted. In many cases, we reinvent the wheel. In regards to civil cases, they are just that, personal cases, not overseen by the State. In many cases, lawyers emerge whereby individuals take initiative to study and understand the law. Most likely, unless one attends law school, one does not take the time to educate the self about the law. Maybe more webinars should be developed to enlighten the public about laws and the outcome of prior cases, which will help individual prepare for any possible cases they may be a part of in the future.

    • Jerri Cook

      I’m not sure it’s a matter of past outcomes and current or former policies. It’s a matter of making an effective argument before the court, which is exactly what happened in Massachusetts. The Constitution is clear. Where a person’s life or liberty are at stake, there is a right to counsel. All courts have the discretion to appoint counsel in family court. Almost none do. The reason is cost. Who will pay? Again, the solution is simple. Money that is currently being wasted by the government can be easily diverted to civil Gideon programs. Does IRS really need new furniture when somewhere a veteran is being denied care which will result in their death?

  • Warren D. St.James II, DM

    Everyone needs to educate themselves on the basics of law. Doing so would equip said individual with the knowledge and ability necessary to hire competent representation if and when the time arises. This would thus assist in avoiding the age old adage: “He or she who represents themselves, has a fool for a client.”

    • Jerri Cook

      There are no “basics of law.” That’s the problem. The internet has created the false narrative that a lay person can “educate” themselves sufficiently. They cannot. Most people aren’t even aware of how the
      right to remain silent works, let alone how to assert their rights and evidentiariny privilges a courtroom. This is an issue that is slowly evolving and becoming part of the national dialogue.

      Even though the fallout from the VA scandal has resulted in dead veterans, it has also highlighted the need for counsel in civil instances where someone’s life is at stake. If you don’t get the treatment you’re entitled to by contract, you could die. Thus, a need for counsel,
      because the Sixth Amendment guarantees it where a person’s life or liberty are at stake.

  • Great post on the importance of legal representation and counsel in civil proceedings in the USA. I would like information regarding International civil proceedings, so I can compare them with what’s happening in the US. How are other countries catering to “the individual’s life, liberty, or property interest”?

    • Jerri Cook

      I don’t have any information on International law or policy. It’s a vast area of law, requiring years of specialized study. International legal proceedings are conducted by the U.N., other nations, and other regional unions, like the EU. However, given that most countries don’t have a Constitution that rises to the excellence of the United States Constitution, I doubt that these protections exist for others, even in developed nations, in the manner they do here. Another reason to celebrate American excellence. In the United States, we are guaranteed these protections by the Sixth Amendment. SCOTUS has determined that the right to counsel only applies in criminal cases. However, because of the Massachusetts Supreme Court, there is now precedence for applying the right to civil cases as well.

  • Charles Bond

    It bothers me a lot that anyone would have a right to an attorney in any civil action. This is not state conduct but rather individual conduct that results in a law suit.

    I get that where custody or the future of a child is in issue, society has an interest in protecting the best interests of a child. Most courts today appoint an attorney for the child or what is known as a guardian ad litem for the child. I know of no public policy interest beyond that which would merit an attorney being appointed and then only in the limited situation I outlined.

    Appointing lawyers for everyone in civil litigation is not a burden that society can or should reasonably bear.

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