RESOLUTION 01-03-2013 (As Amended and Adopted)
DIGEST
California Rules of Court: Court Appointed Counsel forIndigentLitigants
Adds Rule2.895 to California Rules of Court to providethe right to counsel to indigent litigants and to have counsel provided bythegovernmentwhere fundamental rightsareatrisk.
RESOLUTIONS COMMITTEE RECOMMENDATION
DISAPPROVE
History:
Similar to Resolutions 01-06-2006 and 09-02-2012, which were approved in principle, and similar to Resolution 05-02-2011, which was disapproved.
Reasons:
This resolution adds Rule2.895 to California Rules of Court to providethe right to counsel to indigent litigants and to have counsel provided bythe government wherefundamental rights are at risk. This resolution should be disapproved because its implementation isimpractical and it is overlybroad.
This resolution is similarto Resolutions 01-06-2006, 05-02-2011 and 09-02-2012, allof which sought to changethe California Constitution so that all peoplewould havearight to counsel if theycould notafford it and their fundamental rights wereat risk. Understandingthe court budget crisis, the proponent hasmodified the prior resolutions to instead add aRule ofCourt that would allow the court to appoint consentingcounsel to indigents with an income below 200%of the federalguidelines where basichuman needs or fundamental rights areat risk. The appointment
of consentingcounsel would be left to thediscretion ofthe court.
It is undisputed that aperson’s abilityto retaincounsel bears on thequalityofjusticeheor she mayreceive in legal proceedings. However, theproposed resolution fails to provide an adequate process for implementation, and itis unclear how“consentingcounsel”would be determined, or what qualifications would be required to be on theconsenting counsel list.If thereisacourt appointment list that attorneys haveput their names on, does this mean that if theyare appointed to a particularcase, theyrequired to consentto takeit, or do theyhavethe option ofdecliningthe case?Also, if an attorneyconsents to beingappointed and later determines that theycan no
longerrepresent the“client” becausethe client refuses to follow the adviceof counsel, or the consenting counsel has aconflict of interest with the client or opposingcounsel, would the attorneybe allowed to substitute out ofthe case? Would other counsel be appointed?Also, if costswereincurred in representingthe indigent client, how would the costsbepaid?
This also could open thedoorto limitless demands forthe appointment ofcounsel, and judges appointingcounsel, in more cases than necessary,because thelitigant meets thedefinition of indigent. Further, in today’s budget crisis, this proposed changecould allow judges toappointa “pro bono” attorneyin cases in some areas of lawwheretheLegislaturehas alreadyprovided for the payment of counsel who are willingto takeon the moredifficult and unpopular cases where
aperson cannot afford anattorney.
TEXT OFRESOLUTION
RESOLVEDthat the Conferenceof CaliforniaBar Association recommends that legislation be sponsored to add Rule2.895 to theCalifornia Rules of Court to readas follows:
1 Rule 2.895
2
3 (a) Court-appointed counsel. Wherea civil litigantis indigent, as defined in subparagraph
4 (b), the court mayappoint consentingpro bonocounsel wherethe assistanceof counsel is needed to
5 protect thelitigant’s rights to basic humanneeds or fundamental rights, including sustenance,
6 shelter, medical care, safety,child custodyand placement.
7 (b)Indigent litigants.Forpurposes ofsubparagraph (a), a civil litigant will be considered
8 indigent if his orher income is below 200%of thefederal povertyguidelines.
9 (c)Factors to beusedindeterminingneed.In makingthe determination asto whetherthe
10 assistanceofcounsel is needed,thecourt mayconsider:
11 (1)the personal characteristics ofthe litigant, suchas mental capacity, education, and
12 knowledgeof thelaw and of legal proceedings;
13 (2)the complexityof thecase; and
14 (3)whether other litigants in the casearerepresented bycounsel.
(Proposed new languageunderlined; languageto bedeleted stricken.)
PROPONENT: Bar Association of San Francisco
STATEMENT OFREASONS
TheProblem: First, of course, thereis theenormous need. Eight outof tenpeople livingbelow the povertylinehaveno lawyer in civil mattersand sixout of ten middle-class civil litigants haveno lawyer. Second,some judgesalreadyappointcounsel—theycalluponlawyers to help.
Some judges areunsureabout whetheror not theyhavethe authorityto appointcounsel. What is
more, somejudges don’tthink about appointingcounsel forthe unrepresented.
This Solution: This resolution would allow judgesto appoint counsel in civil cases involving indigent litigants living200%below the federal povertylevel wherebasichuman needs or fundamental rights are atrisk. Thereis no real costattached to this proposal. Therewould be some need to educate judges,which would onlycarryasmall cost. Also, therewould besome mobilization bythe bar associations to assist through court volunteer panels. Finally, itwould help to show that thelawyers areprepared to increasetheir contribution topro bono.
LEGISLATIVE HISTORY
Not known.
IMPACT STATEMENT
Theproposedresolution does not affect anyotherlaw, statuteor rule.
AUTHOR AND/ORPERMANENT CONTACT:James Brosnahan, Morrison &Foerster, 425
Market Street, SanFrancisco, CA 94105; (415)268-7189; .
RESPONSIBLE FLOOR DELEGATE: JamesBrosnahan
COUNTER-ARGUMENT(S) TORESOLUTION 01-03-2013
BARASSOCIATIONOFNORTHERNSANDIEGO
Theproponentofthisresolutionprovidesnohintofhowitwouldbefunded,excepttosay a significantincreaseinstatefundingforlegalserviceswouldberequired.Wesubmitthatifthere isasignificantincreasetobeaimedatthe justice system,itshouldbeaimedattheCourts,to enablethemtoprovidetheresourcesnecessary foreffectivedisputeresolution.Experiencehas shownthattheattitudeofclientstowardcounselthatthey donothavetopay directlyvaries widely.Someareappreciativeanddonotabusethebenefitthey arereceiving,whereasothers have noappreciationforthe knowledgeandexpertise requiredtoprovideproperrepresentation. Removing economicsfromtheequationoflitigationmanagementwillsurely resultinahigher levelof litigationgenerally, ratherthanan efforttoobtainanefficient,if imperfect,resolutionof the dispute.
SANDIEGO COUNTYBARASSOCIATION
Theproponent calls this an appointed system, but then says that this willbedealtwith bypro bono requirements. Which is it?
A system thatcompensates competent counsel in what aredescribed as fundamental rights cases can onlybe analogized to thepublicdefender system. Whetherbyappointedlist, or attorneys who contractasingle feeforanumberof clients,ora formal publicdefender's officemirroring the district attorney’s officethe costs aresubstantial. Allattempts to dragoon the corpus of attorneys into probono representation ofindigentcriminals whose fundamental rights were at stake foundered on competencyandforced freelabor grounds. Thereis no reason to think that appointed civil attorneyswould not facethe samedilemmas. Thereis no reason to think that a civil system would be anyless expensive on aperclient basis.
Ifthis isapro bono system, which is implied bytheuse of theundefined term “consenting attorney”, then howis thejudge to know whom to appoint?Judges would haveto relyupon lists of competent counsel willingto be appointed. That makes senseof“consentingattorney”. But who produces the list?Whovets the attorneys?Buildingsuchalist and checkingon the attorneys andmaintainingthe list is what lawyer'sreferral services doandeven when donebya
local bar association, with volunteer help, and underpaid staff, that is still a significantcost.Who bears it?Theindividual attorneys?TheState Bar?TheCourt?The county?
Then who decides to whom it applies. The requirement ofless than 200%ofthe Federal poverty guidelines sounds like abright line but what income gets countedagainstthat and should wealth be counted againstit?Who decides?Thejudgewho is alreadyjugglingtoomanycases?The
clerk's office?Thelocal bar association and if therearemultiple bar associations in a county which one(s)?Thedeclaration ofthe litigant?If thelitigant has an incentiveto minimizehis income and assets (and afreelawyer isan incentive) who checks up on thelitigant?Theneutral court?Orthe partyopponent?
Theproposedstatutetalks about a judgeweighing (1)the personal characteristics of thelitigant, such as mental capacity,education, and knowledgeof thelawand oflegal proceedings; (2) the complexityof thecase; and (3) whether other litigants in the caseare represented bycounsel. When is thejudgegoing to do that?Sincetheseareunrepresented litigants bydefinition, the judgewillhaveto do this in open court. That willconsumetime. Judges tend to be verycareful and thoughtful with proper litigants and that takestime.If the court doesn'tdo itthen someone else will haveto do someinvestigation. Who bearsthose burdens?
Whilethis proposal is flawed beyond salvagethe statement of reasons is correct. Thecivil law, ormore appropriatelythelegal industry, has finallypriced itself out of thereach of themiddle classes. That's whyalternativelegal services, which pretend not to be practicinglaw, are handlinglargerand larger chunks of business. Whilethe civil barin California maybeon the vergeof losingalllegitimacyin theeyes of thegeneral public dueto inaccessibility, how will proponent’s proposed system function in a societythat has adamantlyrefused to taxitself for decades.
On different and morepractical levels, therearenumerous problems associated with effectively givingcivil litigants a rightto free appointedcounsel. What will happen when the indigent litigant insists on pursuingfrivolous claims and “appointed counsel” is forced to withdraw?Is the court to appointnewcounsel onlyto havethecycle continue?What about the realisticpotential that theselitigants willeschew moreeconomical forms of litigation likesmall claims in favor of suingin unlimited civil with appointed counsel as ameans to makeitmore expensiveforopponents to litigate in hopes of extractingsettlements.