Counterpoint – ‘Civil Gideon’: An idea whose time has passed

A lawsuit seeks to accord civil litigants a constitutional right to state-paid lawyers like that guaranteed criminal defendants by the famous case of Gideon v. Wainwright.

The test case is Frase v. Barnhart, a child custody matter which the Court of Appeals is to hear this October.

Not one Marylander in a hundred knows about it. The plaintiff is supported by the state bar association, lending credence to Judge Henry Friendly’s observation that “members of the bar are attracted to due process with a fervor reminiscent of goats in rut.”

Lawyers are an interest group, seeking power and funds. Representatives of two of the interest groups seeking power and funds, the Maryland Legal Services Corporation and the Legal Aid Bureau, have joined to publish a series of articles in The Daily Record in support of this cause. These articles are obviously directed at the Court of Appeals and lawyers, not the unwashed public generally, which is to have no voice in the matter.

Their claim, and those of the lawyers in the Frase case, is that Maryland should be made to emulate the foreign jurisdictions which have recognized a nominal right to civil legal services: Ontario should be the model; initially legal services should be multiplied five-fold, at an annual cost of $60 million, or $12 for each Maryland citizen, producing an annual average benefit of $6,000 for each Maryland lawyer.

What they do not tell us is that the foreign countries to which they refer have very different legal institutions: limitations on contingent fee litigation; restrictions on legal advertising, barratry, and maintenance; mandatory fee-shifting against unsuccessful plaintiffs; heavier reliance on lay magistrates; discretionary powers in courts to deny rights of suit or legal aid certificates; severe limits on punitive and other damages; highly limited use of juries in civil cases; the reservation to public authorities of the right to sue for employment discrimination, environmental impairment or antitrust violation; and much smaller court systems and more elaborated systems of administrative law. Yet one may doubt that these gentlemen favor the system of discretionary legal aid certificates in England, or the denial of civil jury trials in all cases save libel cases, or the restrictions on contingent fees, or the restrained schedules of civil damages applied by the courts.

Nor do they disclose that the costs of the English system are in the billions, nor do they advocate the historic ban on contingent fees in Ontario as well as the total prohibition of third-party auto-accident litigation which exists there by reason of a comprehensive no-fault insurance system.

Some other things are wrong with the Frase claim:

Programs that confer benefits on the poor, because they are poor, create a moral hazard. To maintain eligibility: work is not sought; assets or income are concealed or conveyed; assistance from relatives is repelled; disciplines imposed by charities are avoided; poverty is turned into a virtue, status, political grouping and claims. “Welfare rights,”we learned in the ’60s , create more citizens who become weak, helpless, and often lawless.

Markets are not perfect, but their premise is that individuals are capable of providing goods or services that are useful to someone, or of maintaining the regard of some lender, friend or relative. When disciplines are removed, some assume they may do as they please, and the government will pick up the pieces. Means-tested programs grow over time, not to the benefit of society.

Society values peace, not a war of all against all. Criminal defendants are entitled to free counsel, but those who perpetuate private disputes are usually expected to do so at their own risk. The costs to the child of a custody battle frequently exceed those of a “wrong”result, and there are public agencies to police true cases of child abuse.

The advocates here really want “test”cases to be subsidized. Plaintiffs in such cases already have advantages; settlement pressure from class action rules, as in the tobacco cases and the one-way fee shifting which provides for reimbursement to plaintiffs but not defendants in civil rights cases. Advocacy groups can take time to prepare; their opponents must respond on days notice to “emergency”applications for injunctions. Defendants are represented by inexperienced lawyers whose political superiors are willing to enter into “consent decrees,”private law-making which has led to 20 years of costly supervision of Baltimore City special education and to Thornton school finance legislation uniting great expense with minimal reform.

Similar advantages once enjoyed by big business led to creation of administrative agencies on the premise that “the courts are long on justice and short on policy.”

Litigation culture

The rush to lawyers pre-empts other approaches. In Britain, citizens’ advice bureaux manned by volunteers assist in helping the less educated. On the Continent, ombudsmen receive complaints and adjust and report on cases that would otherwise be in court.

Litigation replaces lawmaking. In custody cases, the maternal preference rule has been abolished. This generated increased litigation by husbands seeking to bargain down child support. A statute like West Virginia’s, favoring the parent who has spent most time with the child, would generate fewer disputes. The sponsors of Frase v. Barnhart have devoted their energies to other objects.

In their zeal for court-ordered change and its unintended consequences, they are impervious to 50 years’ experience, as well as Judge Learned Hand’s warning about “conflicts undreamed of by those who use this facile means to enforce their will.”The hardheaded Vannevar Bush once observed that those who wanted to confer every conceivable right all at once had not thought about what a city looks like when order collapses.

Our litigation culture has been decried in books by Paul Carrington, Mary Ann Glendon, Philip Howard, Anthony Kronman and Sol Linowitz. Even those who have experienced states with no law recognize the evil of too much law; Alexander Solzhenitsyn’s commencement speech at Harvard in 1978 was devoted to this theme.

Burke reminded us in his jeremiad against the Jacobin lawyers of France: “Kings will be tyrants from policy when subjects are rebels from principle.”

For our time, the best statement was provided by a great realist law professor, Grant Gilmore:

“[Law] is to provide a mechanism for the settlement of disputes in the light of broadly conceived principles on whose soundness, it may be assumed, there is a general consensus among us. If there is no consensus then we are headed for war, civil strife, and revolution. The better the society, the less law there will be. The worse the society, the more law there will be. In Hell, there will be nothing but law, and due process will be meticulously observed.”

George Liebmann is executive director of the Calvert Institute for Policy Research Inc. in Baltimore.

Posted in: Criminal Justice, Special Report