The GOOD Lawyer

Request for Attorney Denied

Imagine this scenario:

Child is removed by SC DSS from a single parent home due to allegations of child abuse or neglect.  Single parent, a mother, is working, but making very little and falling well within the federal poverty guidelines.

Child is assigned an attorney Guardian ad Litem (GAL) to represent the child in court. The GAL, whether attorney, SC Volunteer GAL Program or Richland County CASA volunteer, looks out for the child’s best interest.

Mother cannot afford an attorney.

At the first SC DSS hearing, Mother asks the court to provide her with an attorney. The attorney GAL walks with Mother to the Clerk of Court’s office to help her fill out paperwork to apply for a court-appointed attorney. The clerk asks Mother for the $40 fee to accompany the application. Mother does not have $40 to pay the fee. Mother does not have $20 to pay the fee. The attorney GAL asks if the clerk can make an exception and waive the fee. The clerk refuses to waive the fee. Mother has no attorney.

The attorney GAL is concerned. She is aware that Mother cannot afford an attorney, and that this is a serious legal issue; one in which there is potential for Mother to lose custody of her child. And Mother is unrepresented.

Do you think this is FAIR? Do you think this is JUSTICE?

What if I tell you that this scenario is real? Does that change your mind?

Well, it is based on a similar real-life situation.

Fact Recap: Child taken from single parent – Mother – based on allegation of abuse and neglect. Mother works, but does not make a lot of money. Mother shows in court unrepresented. Mother tries to get attorney appointed WITH assistance from attorney representing her child. The Mother is still not able to get an attorney to represent her because she CANNOT pay $40 filing fee and is unable to get a waiver.

What happens next?

Attorney representing Mother followed up. She contacted several people, none of whom were judges, to see if anything could be done to waive the fee. She was given a contact name and followed up. Mother will be receiving a court appointed attorney.

Does this mean Mother will prevail?

Not sure. It will depend on the facts of the case and adherence to any treatment plans or court orders.

Does it mean that the GAL thinks the child should have stayed in the home?

I don’t know. Honestly I didn’t ask the question. Either way though, the Mother is in the midst of a crisis. Her child has been removed from her home. It’s likely that she is (choose one:) distraught/embarrassed/angry/other emotion . As I’ve noted on numerous occasions, when emotions are high, it sometimes takes away our ability to reason or rationally make an argument or listen to court proceedings. An attorney provides a buffer for the emotional client, and makes the proceedings more well-reasoned.

So? Why are you bringing up this issue?

Because I so often hear that attorneys are just *blankety-blank bottom-feeders* AND I know better. And this is a perfect example of that. This attorney went beyond her ethical duty to ensure that the Mother in a case receives legal assistance.

Unfortunately I won’t give more details or name the attorney because this is an on-going case and I don’t want to identify anyone or give away confidences. Suffice it to say that this attorney will hold a dear place in my heart.

Thank you anonymous attorney!

-RFW

SC Access to Justice Commission’s Recommendations re: Rule 608

After the E-Newsletter was distributed earlier this week, the Commission received many requests from individuals and organizations wanting to review the recommendations.

Below is a copy of the cover letter as well as the accompanying exhibits:

COLUMBIA-#6098475-v1-071509_rule_608_ltr_to_chief_justice _2_

Exhibit A1 – Recommended amendments to RULE 608 _2_

Exhibit A2 – RULE 608 – redline _2_

Exhibit B – 5 Appts per Region 7 8 09

Exhibit C – Statement of April 2009 re 608 _2_

Exhibit D – Access Subcommittee filing 6 09 v4 _4_ _2_

-RFW

Sotomayor, Equal Justice & Civil Gideon

What is the connection between Sotomayor, Equal Justice and Civil Gideon?

An July 13th Opinion piece by Jonathan Smith at The National Law Journal.

The gist: Barriers exist in the civil legal setting, largely for people who are low-income or of modest means. This issue has not yet risen to the national level of concern such that it will even be a part of the questioning for the proposed U.S. Supreme Court justice. Isn’t it time to add that question to the consciousness of those in the running for the highest Court in the U.S.? After all, the building itself contains the phrase “Equal Justice Under the Law.”

Equal Justice Under the Law
Equal Justice Under the Law

-RFW

Happy Birthday Gideon v. Wainwright

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On March 18, 1963 the United States Supreme Court decided Gideon v. Wainwright. This landmark case held that the right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial, and petitioner’s trial and conviction without the assistance of counsel violated the Fourteenth Amendment.

From the opinion:

[A]ny 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. . . . From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

Although this case relates to the criminal court system, there are efforts for similar protections for individuals in the civil court system. These efforts are often referred to as Civil Gideon.

The American Bar Association adopted a resolution in 2006 for Civil Gideon in instances when “basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction.”

Isn’t that a lovely birthday wish?

Happy Birthday Gideon v. Wainwright!

-RFW

Whodathunkit? Beijing embracing Civil Gideon!

 

Beijing lawmakers are drawing up a local statute to provide legal aid to low-income residents in civil cases, according to a September 24 report by the China News Service.

Although China has been criticized for their human rights policies, it appears that providing legal representation to people living in poverty has taken root in Beijing, the nation’s capitol and the People’s Republic of China’s second largest city.

-RFW

ABA Litigation Chair Organizing Access to Justice Symposium in Atlanta

On September 11, 2008, the Daily Report noted that Robert L. Rothman, the new ABA Litigation Chair is looking to expand counsel for people living in poverty and whose basic needs are at stake.The main project he’s taken on is providing publicly funded lawyers to those who can’t afford one in these proceedings.

According to the Daily Report, ROTHMAN said a 2006 ABA resolution that advocated expanding counsel to indigent defendants in critical civil matters was what spurred him to make that the signature effort of his term. “I want to bring the litigation section into a very important discussion that is going on,” said ROTHMAN. “I think there is a critical mass and momentum building on this subject among lawyers, judges, public officials and academics.”

Thus far, this resolution has not been adopted in South Carolina.

ROTHMAN has organized a symposium on the right to counsel in civil cases that will take place in Atlanta on Dec. 4 and 5, sponsored by the ABA’s litigation section. The section has also funded a two-year fellowship for a person to work with the National Coalition for a Right to Civil Counsel on state legislative efforts.

Stay tuned for updates.

-RFW

Boston Bar Association Press Release

On Tuesday, the Boston Bar Association announced plans to expand right to counsel in civil cases. This is in response to a study by the BBA’s Task Force on Civil Right to Counsel.

“Studies of courts and administrative agencies consistently show that indigent litigants without counsel routinely forfeit basic rights, not due to the facts of their case or the governing law, but due to absence of counsel. That violates even the most primitive concepts of fairness and decency,” said Task Force co-chair Mary K. Ryan, a partner at Nutter, McClennen & Fish.

To view the press release, visit http://www.bostonbar.org/prs/nr_0809/ExpRight2Councel090208.htm.

For a brief history of Right to Counsel, visit http://www.nlada.org/About/About_HistoryDefender.

-RFW