JUSTICE FOR ALL: Establishing a

Legal Right to Appointed

Counsel in the Commonwealth
of Virginia

Michelle Carmon
10/22/12
Legislative Drafting and Public Policy Seminar

1
 TABLE OF CONTENTS

I. INTRODUCTION............................................................................................................3
II. HISTORICAL FOUNDATIONS....................................................................................6
A. The Right to Counsel in Criminal Cases.............................................................6
B. The Right to Counsel in Civil Cases.................................................................12
III. ARGUMENTS FOR A CIVIL GIDEON....................................................................17
A. The Basic Due Process Argument....................................................................17
B. The Political Legitimacy Argument..................................................................19
C. The Moral Argument.........................................................................................20
IV. STATE AND INTERNATIONAL MODELS............................................................21
A. European Countries...........................................................................................21
B. Massachusetts....................................................................................................23
C. Alabama and Louisiana.....................................................................................24
V. PROPOSAL FOR VIRGINIA......................................................................................24
A. California and the Sergeant Shriver Civil Counsel Act....................................24
B. Implementing the California Model in Virginia...............................................27

2
 INTRODUCTION

“I pledge allegiance to the Flag of the United States of America, and to the Republic for which it
stands, one Nation under God, indivisible, with liberty and justice for all.”1

While the text of the Pledge of Allegiance has been changed slightly since it was

originally penned by Francis Bellamy in 1892, it has always described our nation as one that is

“indivisible, with liberty and justice for all.”2 Historian John Baer notes that Bellamy, a

Christian Socialist, originally considered including “equality” in the pledge along with “liberty

and justice for all,” but decided the country was “too many thousands of years” away from

realizing actual equality.3 Bellamy asserted that, nonetheless, “we as a nation do stand square on

the doctrine of liberty and justice for all.”4

What does it mean for a nation to stand on the principle of justice for all? Rep. Keith

Ellison of Minnesota described it this way on the House floor last year: “Justice means we treat

people fairly in America. You have got a right to a fair trial . . . Justice, the right to a lawyer.

These things are important. And we don't give up on justice . . . And it is for all. Everybody.

We have no exceptions.”5 Unfortunately, just as Bellamy understood over a century ago, this is

the ideal and not the reality in America today. It is clear that race, ethnicity, gender, wealth, and

other characteristics have an impact on the justice an American citizen receives in the courtroom.

For example, even though the Equal Protection Clause prohibits many forms of racial and other

discrimination, incarceration rates remain strongly correlated with race, class, education, and

unemployment.6 There is significant evidence to suggest that part of this correlation is the result

1
4 U.S.C. § 4 (2006).
2
The original text read “my flag” instead of “the flag of the United States of America” and did not include the words
“under God.” “Under God” was added by Congress in 1954 as a response to growing concerns about Communism.
See Carol McKay, The Pledge of Allegiance’s Long History of Controversy, FED. LAW., Aug. 2002 at 9, 13.
3
Id. at 9.
4
Id.
5
157 CONG. REC. H1899 (daily ed. Mar. 17, 2011)(statement of Rep. Keith Ellison).
6
Becky Pettit & Bruce Western Mass Imprisonment and the Life Course: Race and Class Inequality in U.S.
Incarceration, 69 AM. SOC. REV. 151, 153 (2004).

3
of disproportionate policing efforts and differential treatment in the court system based on race

and class.7

Black’s Law Dictionary defines legal justice as “the fair and proper administration of

laws.”8 Justice can also be defined as “the quality of being just, impartial, or fair” or “the

establishment or determination of rights according to the rules of law or equity.”9 Arguably, the

term “due process” could be substituted for the word “justice.” The Constitution requires that all

people are treated equally before the law and are not arbitrarily discriminated against or excluded

from fair treatment in the judicial system. One important aspect of due process is the right to be

represented by counsel. Recognizing this, the drafters of the Constitution included the Sixth

Amendment in the Bill of Rights, which ensured that criminal defendants would have the right to

be represented by counsel.10

A corollary to this right is the right to be appointed counsel in the event that one cannot

afford to hire an attorney. Without the right to appointed counsel, those who have greater wealth

are afforded more due process than those who are poor. While it is true that the right to

appointed counsel for criminal defendants is not absolute, the right to appointed counsel in civil

cases is even more restricted and does not have the benefit of an explicit constitutional guarantee

behind it. The right to appointed counsel in civil cases must be inferred from the general right to

due process.

This paper will argue that there should be a right to appointed counsel in cases involving

basic human needs, including housing and custody cases, as a part of the due process guarantee.

7
Id.
8
BLACK’S LAW DICTIONARY 942 (9th ed. 2009).
9
Justice Definition, MERRIAM-WEBSTER.COM, http://www.merriam-webster.com/dictionary/justice (last visited Oct.
20, 2012).
10
U.S. CONST. amend. VI.

4
Because the federal government has declined to establish such a right, this paper will argue for

the creation of this right on the state level using California as a model.

Part I will explain the basics of the right to appointed counsel in criminal cases, focusing

primarily on the landmark Supreme Court case Gideon v. Wainwright.11 It will also explain the

state of the federal right to appointed civil counsel both before and after the Supreme Court case

Lassiter v. Dep’t of Social Services.12 Part II will summarize the basic arguments in favor of

establishing a right to appointed counsel in civil cases, commonly known as the “civil Gideon”

right. Part III will describe how some U.S. states and foreign countries have expanded the right

to appointed civil counsel, and argue that a state-by-state establishment of this right is the best

method for overturning Lassiter. Finally, Part IV will make the case for adopting a version of

the California model, codified in the Sergeant Shriver Civil Counsel Act, in the commonwealth

of Virginia.

11
372 U.S. 335 (1963).
12
452 U.S. 18 (1981).

5
 HISTORICAL FOUNDATIONS

The Right to Counsel in Criminal Cases

“In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of
Counsel for his defence.”13

The Sixth Amendment establishes the right to legal counsel in all federal criminal

prosecutions.14 The case that established this right at the state level was Powell v. Alabama.15

THE RIGHT TO COUNSEL PRE-GIDEON

Powell is a landmark civil rights case involving three African-American defendants who

were convicted and sentenced to death for the rapes of two white women in Alabama.16 The only

issue considered by the Supreme Court was whether the defendants had been improperly denied

the right to counsel in contradiction to their Fourteenth Amendment right to due process.17 It

appears from the facts of the case that there was merely a cursory attempt to satisfy the

defendants’ right to counsel. At the arraignment, the judge claimed to have appointed “all

members of the bar” to assist them, without naming any specific attorney.18 The defendants were

never consulted about their ability to obtain counsel or questioned about their potential desire to

have counsel appointed for them.19 The trials were rushed, being held merely days after the

alleged rapes, making it impossible for the out-of-state defendants to procure counsel in time.20

13
U.S. CONST. amend. VI.
14
Gideon v. Wainwright, 372 U.S. 335, 339-40 (1963).
15
Powell v. State of Ala., 287 U.S. 45 (1932).
16
Id. at 49. These defendants, along with the six other accused are known popularly as the “Scottsboro Boys”
because the trials were held in Scottsboro, AL. See Douglas O. Linder, Biographies of The Scottsboro Boys, UNIV.
OF MO.-KAN. CITY SCH. OF L. (2009), http://law2.umkc.edu/faculty/projects/FTRIALS/scottsboro/
SB_bSBs.html.
17
Powell, 287 U.S. at 50. The defendants made the argument from the due process clause of the Fourteenth
Amendment instead of the Sixth, because the Sixth has been held only to apply to the federal government. The due
process clause of the Fourteenth Amendment has been the means by which the Court has incorporated some, but not
all, of the Bill of Rights to the States. See 16A AM. JUR. 2d Constitutional Law § 421 (2012).
18
Id. at 49.
19
Id. at 52.
20
Id. at 52-53. Unfortunately, while there was counsel available to represent the defendants, the attorneys arrived
shortly after convictions had already been obtained.

6
On the day of the trials, an exchange between the judge and attorneys present in the courtroom

resulted in the informal appointment of a local attorney and an out-of-state attorney to represent

the defendants.21 They had no opportunity to investigate any facts or prepare a defense, and their

representation was described as “rather pro forma than zealous and active.”22 On the basis of this

factual record, the Court rightly concluded that the “defendants were not accorded the right of

counsel in any substantial sense.”23

Upon a determination that the right to counsel had been denied to Powell and his

codefendants, the Court still had to address whether this amounted to a violation of due process

under the Fourteenth Amendment. Using past cases as a guide, the Court reasoned that there are

some rights “that cannot be denied without violating those ‘fundamental principles of liberty and

justice which lie at the base of all our civil and political institutions.’”24 The Court then held that

the Sixth Amendment right to counsel was one such right.25 The majority opinion explains that

one of the basic elements of due process is the right to a hearing, a right that can be meaningless

in many instances without the right to be represented by counsel.26 It is arguably true that given

the geographic location, the nature of the alleged crime, and the race of the defendants, that no

zealous representation would have resulted in an acquittal. In spite of this cultural reality, the

Court used this case to make a statement about not only the reasons why the right to counsel is

moot when no time is given for the attorney to prepare a case, but also why the right to be

represented is so critical in the first place.

21
Id. at 53-55.
22
Id. at 58.
23
Id.
24
Id. at 67.
25
Id. at 68.
26
Id. at 68-69.

7
 The Court’s argument begins from the premise that Fourteenth Amendment due process

protections include the right to a hearing.27 The right to a hearing necessarily includes the right

to be assisted by counsel.28 Pointing to the complexities of criminal procedure, substantive

criminal law, and the art of presenting a case, the Court recognizes that it can be difficult or even

impossible for an “intelligent and educated layman” to successfully defend a criminal case,

regardless of his actual innocence.29 The Court describes Powell and his codefendants as

“young, ignorant, [and] illiterate,”30 rightly recognizing that these factors made it even more

challenging for these defendants to present a defense without the assistance of counsel.31 Even in

the 1930s, the Supreme Court recognized that certain defendants are at a distinct disadvantage in

the courtroom, and that the employ of counsel may be the only way to level this imbalance.

Unfortunately, a mere ten years later, progress in this area was stymied by the Supreme

Court’s decision in Betts v. Brady.32 In this case, a defendant charged with robbery petitioned the

county court to have an attorney appointed for him.33 His request was denied because the judge

asserted that it was “not the practice” in that jurisdiction to appoint counsel for defendants in

robbery cases.34 Betts’ case eventually came before the Supreme Court on the claim that his

Fourteenth Amendment due process rights had been violated. The Court held that the Due

Process Clause did not incorporate the protections of the Sixth Amendment to the states, and that

due process only required the appointment of counsel in cases where it “seems to be required in

the interests of fairness.”35 In so saying, the Court concluded that it was not necessary for due

27
Id. at 68.
28
Id. at 68-69.
29
Id. at 69.
30
Id. at 57-58.
31
Id. at 69: “If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of
feeble intellect.”
32
316 U.S. 455 (1942).
33
Id. at 457.
34
Id.
35
Id. at 471-72.

8
process or fundamental fairness to require the appointment of counsel in all criminal cases, even

in cases for which the physical liberty of the defendant was in jeopardy. Cases following Betts

clarified that some type of “special circumstances” needed to be shown, such as “illiteracy,

ignorance, youth, or mental illness, the complexity of the charge against him or the conduct of

the prosecutor or judge at the trial.”36

THE BROADENED RIGHT TO APPOINTED COUNSEL: GIDEON V. WAINWRIGHT

Gideon37 is the landmark Supreme Court case that explicitly overturned Betts and

expanded the right to appointed counsel in criminal cases. Similar to the defendant in Betts,

Gideon was convicted of breaking and entering with the intent to commit misdemeanor larceny.38

Before the trial commenced, he explained to the judge that he was not ready to go forward with

his case because he did not have legal counsel, and requested that counsel be appointed for him.39

The trial judge based his decision to deny the request on the practice in the state of Florida to not

appoint counsel except in capital cases.40

The trial was a disaster for Gideon. While the court accurately states that he “made an

opening statement to the jury, cross-examined the State’s witnesses, presented witnesses in his

own defense . . .and made a short argument ‘emphasizing his innocence to the charge’,”41 this is

not a complete picture of exactly what occurred in the courtroom. The trial transcript reflects

that Gideon was unable to effectively participate in voir dire, as he was unaware of his right to

question the jurors for potential bias.42 He was unable to effectively examine his own witnesses

36
ANTHONY LEWIS, GIDEON’S TRUMPET 8 (Neill H Alford, Jr. et. al. eds., Special ed. 1991).
37
Gideon v. Wainwright, 372 U.S. 335 (1963).
38
Gideon at 336; LEWIS, supra note 28 at 7.
39
Gideon at 337; LEWIS, supra note 28 at 9.
40
Gideon at 337. Note that the judge incorrectly stated that he was unable to appoint counsel. In fact, Florida law
only stated that appointment was not required; the judge still had discretion to do so. See LEWIS, supra note 28 at
10, 97.
41
Gideon at 337.
42
LEWIS, supra note 28 at 58.

9
and cross-examine those of the prosecution. Testimony that came out in trial pointed to at least

two apparent defenses to the felony charge, but without knowledge of these defenses, Gideon

was unable to develop his case for the jury.43 A competent defense attorney would have been

able to argue for more complete jury instructions and, if necessary, present arguments in

Gideon’s favor during the sentencing phase. Gideon was not able to do either of those on his

own.44 Seemingly unaware of the Betts case and believing that the denial of appointed counsel

was a deprivation of his due process rights, Gideon appealed his case to the U.S. Supreme

Court.45

Supreme Court procedure allowed Gideon to be appointed counsel upon the Court’s grant

of certiorari.46 One of the associates from the firm representing Gideon explained that it was

patently obvious upon a review of the case that having appointed counsel would likely have

resulted in a more favorable outcome for the defendant:

We knew as soon as we read that transcript that here was a perfect case to challenge the
assumption of Betts that a man could have a fair trial without a lawyer. He did very well
for a layman . . . but it was never proved by the prosecution [that he committed the
crime]. . . . [A]n ordinary, competent lawyer . . . could have made ashes of the case.47

Gideon explained that the reason why he had insisted on being appointed counsel was because of

the bias he would face as a defendant with an extensive criminal record. “I knew that was my

only chance,” he said.48 “I don’t know if you’ve ever been in one of these courtrooms, but the

prejudice is obvious . . . Without a lawyer, with the criminal record I had, what I’d have said

they’d never have paid any attention to,” he explained.49 Considering all of these factors

43
Id. at 58-62.
44
Id. at 62.
45
Gideon at 337; LEWIS, supra note 28 at 8-10.
46
LEWIS, supra note 28 at 44-46.
47
Id. at 62-63.
48
Id. at 99.
49
Id.

10
together, it was simply impossible for Gideon as a criminal defendant to take advantage of his

many due process guarantees without the assistance of an attorney.50

The Supreme Court appreciated this reality. Writing for the majority, Justice Black

stated 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.”51 The “noble ideal” of justice for all and “equal[ity]

before the law” can only be realized if the indigent defendant has the same ability to be heard as

the defendant with the means to hire competent counsel to argue on his/her behalf.52

In overturning Betts, the Court did not settle the entire issue of appointed legal counsel in

criminal cases. For example, the Gideon opinion does not set out clear guidelines for

determining when in the process the right to an attorney attaches. It also does not fully explain

the exceptions to the general principle laid down. These issues and others were left for

subsequent cases.53 Since this paper is focused on the establishment of a right to counsel in civil

cases, discussing those nuances of the right to counsel in criminal cases is not necessary. The

lesson of Gideon is clear: the right to be represented by counsel, even and perhaps especially

when one cannot afford it, is a fundamental element of due process and fundamental fairness in

an adversarial court system. It is for that reason that advocates for a right to appointed counsel in

the context of civil cases often refer to it as the “civil Gideon.”

The Right to Counsel in Civil Cases

50
See id. at 104: “Of all the rights that an accused person has, the right to be represented by counsel is by far the
most pervasive, for it affects his ability to assert any other rights he may have.”
51
Gideon at 344.
52
Id.
53
See LEWIS, supra note 28 at 189; Randy J. Sutton, Annotation, Construction and Application of Sixth Amendment
Right to Counsel—Supreme Court Cases, 33 A.L.R. FED. 2d 1 (2009).

11
“No State shall . . . deprive any person of life, liberty, or property, without due process of law.”54
There is no explicit Constitutional guarantee of the right to counsel in civil cases at the

federal or state level. The courts must look to the Fourteenth Amendment’s Due Process Clause

to determine the extent to which this right is guaranteed at the state level.

THE RIGHT TO COUNSEL PRE-LASSITER

There were several important Supreme Court cases involving the right to counsel in civil

cases in the years leading up to Lassiter. In re Gault established a right to legal counsel for

minors in delinquency proceedings.5556 The minor in that case was taken into custody by police

after a complaint was made against him for making “lewd or indecent” remarks to a neighbor

over the phone.57 Gault was on probation at the time for being “in the company of another boy

who had stolen a wallet from a lady’s purse.”58 Gault was detained at a detention home and

subjected to multiple court proceedings for which neither he nor his parents received “[n]otice of

the charges”, a “[r]ight to counsel,” a “[r]ight to confrontation and cross-examination,”

“[p]rivilege against self-incrimination,” a “[r]ight to a transcript of the proceedings,” or a “[r]ight

to appellate review.”59 The Court held that although juvenile court proceedings are not criminal,

and although judges traditionally have been given expansive authority under the belief that this

will allow for “careful, compassionate, individualized treatment,”60there is no reason to deny a

juvenile due process rights in such proceedings. Juvenile delinquency proceedings are

“comparable in seriousness to a felony prosecution” because of the significant physical liberty

54
U.S. CONST. amend. XIV § 1.
55
In re Gault, 387 U.S. 1 (1967).
56
Juvenile court proceedings are considered civil cases. See In re Gault, 387 U.S at 17.
57
Id. at 4.
58
Id.
59
Id. at 10.
60
Id. at 18.

12
interests involved.61 Because of this risk of incarceration, Gault was entitled to representation by

appointed counsel by virtue of his due process rights.62

In spite of the decision in Gault, the Court did not find that every non-criminal case in

which the defendant’s physical liberty is at risk entitles him to appointed counsel. Gagnon v.

Scarpelli involved probation revocation, which was held to be distinct from the stages of

criminal prosecution.63 “Once it is determined that due process applies,” the relevant question

for the Supreme Court in these types of cases is “what process is due[?]”64 According to the

Court in Morrissey v. Brewer, in cases other than criminal prosecutions, due process is “flexible

and calls for such procedural protections as the particular situation demands.”65 The Court held

in Gagnon that defendants are not generally entitled to appointed counsel at a probation

revocation hearing absent special circumstances, citing the costs that such a unilateral right

would impose on the system without a foreseeable benefit for the probationer.66 The Court

admitted that it was applying the flawed Betts case-by-case approach in reaching this conclusion,

but insisted that the differences between a criminal prosecution and a probation revocation

hearing were sufficient to justify this difference in due process rights.

THE NARROWED RIGHT TO APPOINTED COUNSEL: LASSITER V. DEP’T OF SOC. SERVS.

Lassiter67 was a landmark Supreme Court case involving a proceeding for the termination

of parental rights. The case involved a mother whose young child had been placed in the custody

of the state after being adjudicated neglected.68 A year later, Lassiter was incarcerated and the

61
Id.at 37.
62
Id.at 41.
63
Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973).
64
Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
65
Id.
66
Gagnon at 787-788.
67
452 U.S. 18 (1981).
68
Id. at 20.

13
state petitioned to terminate her parental rights.69 The Department of Social Services (DSS)

claimed that Lassiter had made almost no effort to contact the child or to make arrangements to

have the child removed from foster care.70 She did not appear at the hearing at which her son

was adjudicated neglected, and she did not notify her criminal defense attorney of the parental

rights termination proceedings.71

The majority opinion leaves out key facts that are important to understanding Lassiter’s

situation. The Court neglected to take into account that the reason Lassiter had not been in

contact with her son was because she was in prison.72 She informed DSS that she wanted him to

be placed with his grandmother, where his four siblings were already living.73 Lassiter did

inform the prison guards of the neglect hearing but received no assistance.74 She was never

informed of her right to counsel.75

At the time of the parental rights termination proceedings, Lassiter was serving a

sentence for second-degree murder, which could have contributed to the lower court’s bias

against her. The portions of the trial transcript reprinted in the dissenting opinion clearly

demonstrate a need for the involvement of counsel. Hearsay evidence was admitted without

objection, and Lassiter was not provided with a copy of the agency record on which the social

worker based her testimony.76 Lassiter was unable to clearly express herself or conduct any type

of cross-examination of the witnesses. She was frequently told that her questions were

arguments and therefore impermissible.77 The judge’s frustration with Lassiter was painfully

69
Id.
70
Id. at 21.
71
Id. at 21-22.
72
Id. at 52.
73
Id. at 52-53.
74
Id. at 53.
75
Id. at 53.
76
Id. at 53.
77
Id. at 23.

14
obvious as he spoke to her harshly for failing to answer questions succinctly during her

testimony.78 The presence of counsel may have eliminated this frustration entirely.79

Furthermore a key witness, Lassiter’s mother, was never questioned and several defenses

available to Lassiter were never raised. Regardless of whether the outcome of the hearing would

have been different, it is clear from the record that the hearing was riddled with errors and

confusion that could easily have been avoided had Lassiter been provided counsel.

Given the gravity of the right that was at stake in this case, it seems that Lassiter is

exactly the type of defendant for whom the right to appointed counsel was established. The

Court describes the termination of parental rights as “a unique kind of deprivation” and a

parent’s interest in a fair hearing as “a commanding one.”80 Leaving aside the palpable issues of

race and gender that permeate this case, Lassiter appears to be at least as disadvantaged a

defendant as Gideon. She is unable to present her case at all, being totally and completely

unaware of the procedures to follow, her legal rights, and her potential defenses to the claims

made by DSS.

It is notable then that the Court determines that Lassiter did not have a right to appointed

counsel in her case. The reasoning begins from the premise that the right to appointed counsel,

whether in criminal or civil cases, is only presumed when the “indigent litigant . . . if he loses . . .

may be deprived of his physical liberty.”81 The Court then details three factors to be weighed

against each other in determining whether there is a right to appointed counsel: “the private

78
Id. at 54-55. At one point the judge told Lassiter that “it scares me to be in the same room with you.” In the
middle of questioning Lassiter, the judge turned to the county attorney and stated “I tell you what, let’s just stop all
this. You question her, please. Just answer his questions. We’ll be here all day at this rate. I mean, we are just
wasting time, we’re skipping from one subject to another . . .”. While it is easy to criticize the judge for making
such harsh statements, it should be noted that had Lassiter been represented by an attorney, she would not have
made the procedural errors that created this level of frustration in the first place.
79
Id. at 56.
80
Id. at 27.
81
Id. at 26-27.

15
interests at stake, the government’s interest, and the risk that the procedures used will lead to

erroneous decisions.”82 The factors seem to be in favor of a right to counsel in this case. The

interest of the mother in her raising child “undeniably warrants deference and . . . protection.”83

The interest of the state in protecting the child also tips the scales in the direction of a right to

counsel, since “our adversary system presupposes [that] accurate and just results are most likely

to be obtained through the equal contest of opposed interests.”84 The Court dismisses the state’s

administrative interest in keeping the cost and length of the procedures down as “hardly

significant enough to overcome private interests as important as those here.” Finally, the Court

acknowledges that “the incapacity of the uncounseled parent could be . . . great enough to make

the risk of an erroneous deprivation of the parent’s rights insupportably high.”85

In weighing the three Eldridge factors against the presumption against the right to

appointed counsel, the Court determined that there is no general right to counsel for termination

proceedings. Instead, as in Gagnon, the determination must be made on a case-by-case basis; the

interest of the parent and the risk of error must be at their highest and the interests of the state at

their lowest for the due process right to counsel to attach in a given case.86 The failure of such a

standard to provide adequate due process is evident in the next part of the court’s opinion, when

it holds that, in Lassiter’s specific case, there was no due process right to appointed counsel. The

court lightly dismisses the numerous problems described above, including the fact that the

opposing party was represented by counsel, that hearsay evidence was admitted, and that

available defenses were never fully presented. The majority seemed to have determined that

Lassiter should not and would not have won her case regardless of legal representation, and
82
Id. at 27, citing the three factors for analysis from Mathews v. Eldridge, 424 U.S. 319, 335 (1976). These factors
are sometimes referred to as the “Eldridge factors”.
83
Id.
84
Id. at 28.
85
Id. at 31.
86
Id. at 31-32.

16
worked backward from that assumption to conclude that her due process rights were not

violated.87 This deeply flawed opinion continues to have a negative impact on efforts to establish

a broader right to appointed counsel in civil cases.

ARGUMENTS FOR A CIVIL GIDEON

In the absence of state law that affords litigants greater due process protections, Lassiter

remains the legal standard for determining the right to appointed counsel.88 While the Supreme

Court so far has not been inclined to change its position on this issue, there are several arguments

for moving away from a case-by-case standard and establishing a civil Gideon.

The Basic Due Process Argument

One of the essential elements of due process is the right to a fair hearing. The two

paradigm cases for the right to legal representation in the U.S., Gideon and Lassiter, are clear

examples of how the lack of counsel puts indigent litigants at an unfair disadvantage. Prof. David

Luban gives another example in the following hypothetical:

Suppose that a poor person decided to learn the law from scratch so as to be able to
represent herself. Suppose that she was able (somehow) to obtain the first year
casebooks and other legal texts; suppose that her educational level allowed her to read
them; suppose that she had lots of leisure time for study. Suppose that she understood the
principle of stare decisis, had the knack of “thinking like a lawyer,” developed a taste for
Byzantine reasoning, logic chopping, and casuistry. Even so, without a civil procedure
course under her belt, she would almost certainly be unable to make sense of the most
basic features of the cases she had read, namely why they were filed in one court rather
than another, why the defendants were chosen as they were, and why the particular cause
of action was alleged. These are, after all, questions of tactics as much as legal doctrine. .

87
See Dennis A. Kaufman, The Tipping Point on the Scales of Civil Justice, 25 Touro L. Rev. 347, 363 (2009):
“Selection of salient facts to be inserted into the Mathews formula is discretionary with the court. There is nothing
to prevent a court from working the equation backwards—selecting the result, and then sifting through the facts to
find those that support the answer.” Given the myriad of facts present in the dissent that were conveniently omitted
or glossed over in the majority opinion, it seems as though this is exactly what the Court did here in Lassiter.
88
See Turner v. Rogers, 131 S. Ct. 2507, 2510 (2011).

17
 . . The inescapable conclusion is that her supposed access to the legal system . . . is
nothing but a joke.89

While it is certainly possible for indigent litigants to have fair hearings and to even win cases

without the assistance of an attorney, it is equally true that “all of our legal institutions (except

small claims court) are designed to be operated by lawyers and not by laypersons.”90 Lawyers

bring to the courtroom a knowledge of the substantive law as well as legal procedure. It is

incredibly difficult for a lay person to acquire this knowledge on their own. The first year of law

school is notoriously challenging for students as they learn for the first time how to decipher and

digest judicial opinions.91 I propose that it is at least as difficult then for the average lay person

to teach himself/herself the substantive law and procedure relevant to his/her case, particularly

when you factor in the problem of resources.92 This assertion is supported in part by evidence

indicating that the probability of success in certain types of cases increases significantly when a

person has the benefit of legal counsel.93

Due process is supposed to provide all parties involved with an equal chance to be heard;

both the plaintiff and defendant have due process rights that must be protected. While all of the

previous cases discussed are from the point of view of the indigent party as a defendant, the

argument from due process includes cases in which the indigent litigant is a plaintiff.

Fundamental fairness is just as important to the parent who is suing for child custody and

support, the consumer who sues a creditor for unfair debt collection practices, and the tenant who

sues a landlord for breaching the warranty of habitability. Particularly when the other parent, the
89
DAVID LUBAN, LAWYERS AND JUSTICE, AN ETHICAL STUDY 245 (Princeton Univ. Press 1988).
90
Id. at 244.
91
See Rogelio Lasso, From the Paper Chase to the Digital Chase: Technology and the Challenge of Teaching 21st
Century Law Students, 43 SANTA CLARA L. REV. 1, 24 (2002).
92
I propose that the average indigent litigant will be unable to spend hours at the closest law library searching for
statutes and cases relevant to his/her legal problem.
93
See, e.g. American Bar Association Task Force on Access to Civil Justice, Report, ABA Resolution on Right to
Counsel 10, available at http://www.legalaidnc.org/public/participate/legal_services_community/ABA_Resolution_
onehundredtwelvea[1].pdf: “Not surprisingly, studies consistently show that legal representation makes a major
difference in whether a party wins in cases decided in the courts.”.

18
creditor, and the landlord are represented by counsel, the indigent litigant is simply not on equal

footing with the opposing party unless he/she has the benefit of his/her own counsel. If the right

to be heard is to be meaningful, the legal system must recognize a broader right to appointed

counsel than is currently available.

The Political Legitimacy Argument

Prof. Luban argues that the right to civil legal services can be established through a

theory of political legitimacy. He summarizes his argument in a five-point proof:

1. Access to minimal legal services is necessary for access to the legal system.
2. Access to the legal system is necessary for equality of legal rights—equality before the
law.
3. Equality of legal rights is necessary to the legitimacy of our form of government.
4. Whatever is necessary to the legitimacy of a form of government it must grant as a
matter of right.
Therefore,
5. Access to legal services is a right under our form of government.94

As argued above, because the legal system is designed primarily to be navigated by lawyers, the

lay person’s access to the legal system is inhibited when access to counsel is unavailable.

Additionally, as a fair hearing is an essential part of due process, equality before the law—justice

for all—often necessitates the provision of legal counsel to protect the rights and interests of the

indigent litigant.

The basis for the third point in Prof. Luban’s argument, that equality of legal rights is

necessary to the legitimacy of our form of government, is taken from American history. Luban

argues that throughout American history, the equality of legal rights for citizens is one principle

that has always been held by a majority of the country.95 At an address to the American Bar

94
LUBAN, supra note 28 at 264.
95
Id. at 253; explains that women had access to the court system even before they were granted suffrage and that
African-Americans were given the same access upon being given the rights of citizenship.

19
Association in 1976, Justice Lewis Powell, Jr. also described equality under the law as a

foundational principle of American society:

Equal justice under law is not merely a caption on the façade of the Supreme Court
building. It is perhaps the most inspiring ideal of our society. It is one of the ends for
which our entire legal system exists. . . . [I]t is fundamental that justice should be the
same, in substance and availability, without regard to economic status.96

Because this principle is such an important foundational principle for our legal system, and so

deeply entrenched in American society, if the government were to declare that people would no

longer be entitled to equal justice under the law, the American people would not accept that as

valid. Equal justice and due process are a necessary component of the legitimacy of the

American government. If they are only able to be realized when appointed counsel is provided

to those who cannot afford it, then indigent litigants necessarily have a right to appointed counsel

under our system of government.

The Moral Argument

Prof. Luban is too quick to dismiss another equally valid argument for the establishment

of a right to civil legal representation—morality.97

Due process is more than just a legal term of art. It represents a promise, a social

contract, that everyone will be treated fairly in the legal system. This promise has been made,

not because our system could not be run another way, but because we’ve made a moral judgment

that says it is important for all people to be treated equally. This is not to say that the outcome of

a case will always be fair; however, our society does promise that at least both parties are to be

treated equally without discriminating on the basis of wealth, race, gender, or any other

categorization because we believe it’s the right thing to do. Once we make such a moral

96
The Ethical Bar and the LSC: Wrestling with Restrictions on Federally Funded Legal Services, 59 VAND. L. REV.
971, 971-72 (2006).
97
Id. at 265.

20
judgment, it is impossible for a decision that deprives a class of citizens from equal footing in the

judicial system to be the moral choice.

INTERNATIONAL AND STATE MODELS

Once the right to appointed counsel in civil cases has been accepted, the obvious next

step is determining how to implement this right. It can be helpful in this regard to look at the

solutions other countries and individual U.S. states have implemented in order to provide this

right to their residents.

European Countries

The right to appointed counsel in England evolved from principles espoused in the

Magna Carta, namely in the declaration that “[t]o no one will [the government] . . . refuse or

delay, right or justice.”98 In 1495, the Statute of Henry VII explicitly codified this right:

[T]he Justices . . . shall assign to the same poor person or persons counsel learned, by
their discretions, which shall give their counsel, nothing taking for the same; . . . and
likewise the Justices shall appoint attorney and attornies [sic] for the same poor person or
persons. . . .”99

Although the right to appointed counsel existed, the lack of appropriated funding for this purpose

kept the government from fully living up to this promise.100 Because the “gap that had developed

between the ideal and reality so disturbed the collective conscience of the British electorate . . .

Parliament enacted a comprehensive statutory right to counsel in 1949, backed fully by the

98
EARL JOHNSON, Justice and Reform: The Formative Years of the American Legal Services Program 3 (Russell
Sage Foundation, 1978).
99
Id.
100
Id. at 4.

21
government treasury.”101 The English system today goes so far as to provide a right to legal

counsel even in non-litigation transactions.102

Europe as a whole has been more progressive on this issue than the United States. At

least four countries—Italy, Spain, Portugal, and Holland—created the right to civil counsel as an

explicit constitutional right.103 Unlike the U.S. Supreme Court, both the Swiss Federal Court and

German Federal Constitutional Court have interpreted their constitutional guarantees of equality

to provide this right, while the European Court of Human Rights derived it from the right to a

fair hearing.104

While there is no uniform standard across Europe for the provision of legal services to

the poor, most countries do cover a wide variety of civil matters, including “family law, housing,

consumer and debt cases, public assistance and welfare, and labor law.”105 Most of these

countries allow for completely free representation or legal advice for those who are unable to

pay, while at least five countries also provide free services without a financial screening for the

elderly, disabled, veterans, and welfare recipients.106 Cases are evaluated for merit before they

are accepted for representation.107 Approximately half of the countries simply require a prima

facie showing, while the others require that the client demonstrate a “likelihood of success.”108

These countries have proven that it is possible to provide a wide array of legal services to

the indigent population on a national scale. The issue is simply one of prioritizing and funding.

101
Id.
102
Raven Lidman, Civil Gideon: A Human Right Elsewhere in the World, Clearinghouse REVIEW J. of Poverty L.
& Policy 290 (July-Aug. 2006).
103
Id. at 290-91.
104
LUBAN, supra note 28 at 243.
105
Lidman, supra note 102 at 291.
106
Id. at 292.
107
Id.
108
Id. at 293. The article notes that the “likelihood of success” merits test has been held at least once recently by the
European Court on Human Rights to be invalid.

22
Massachusetts

Many state bar associations have developed task forces and passed resolutions in favor of

a civil right to counsel in recent years.109 Reviewing their recommendations can be instructive in

determining in which cases the right to counsel could have the greatest positive impact. As of

2008, Massachusetts had established a right to counsel in “care and protection cases, child

guardianship cases, children in need of services [cases], mental health commitments and waiver

of consent to adoption [cases.]”110 In an effort to meet the American Bar Association’s vision of

providing counsel in cases where basic human needs are at stake,111 the state bar association and

Access to Justice Commission recommended that this right be expanded to cover the following

types of cases:

 evictions;
 civil contempt hearings where incarceration is a possibility;
 proceedings in which the Department of Youth Services . . . seeks to revoke a
juvenile’s conditional release;
 civil actions involving the same issues as a criminal case in which counsel was
appointed; and
 guardianship proceedings including the custody of a youth.112

The task force also developed a mission statement with a useful definition of cases involving

basic human needs: “those involving shelter, sustenance, safety, health or child custody.”113

Interestingly, although cost is often cited as a reason against the expansion of the right to

appointed counsel, the task force points out that at New York study in 1990 found that for every

109
See, Bar Efforts, NAT’L COALITION FOR A CIVIL RIGHT TO COUNSEL, http://www.civilrighttocounsel.org/
advances/bar_efforts/.
110
Bos. Bar Ass’n Task Force on Expanding the Civil Right to Counsel, Gideon’s New Trumpet: Expanding the
Civil Right to Counsel in Massachusetts 4 (Sept. 2008), available at http://www.bostonbar.org/prs/reports/
GideonsNewTrumpet.pdf.
111
American Bar Association Task Force on Access to Civil Justice, ABA Resolution on Right to Counsel, available
at http://www.legalaidnc.org/public/participate/legal_services_community/ABA_Resolution_
onehundredtwelvea[1].pdf
112
Bos. Bar Ass’n at 5-6.
113
Id. at 6.

23
$1 spent on legal services to combat eviction, the city saves $4 in “shelter and other social

services costs.”114

Alabama and Louisiana

The expansion of the right to appointed counsel has occurred even in states not typically

considered to be politically progressive or liberal. Both Alabama and Louisiana passed statutes

in 2008 expanding the right to counsel in proceedings involving the termination of parental

rights. Prior to 2008, both states recognized a right to counsel when the state initiated

termination proceedings, e.g. in cases like Lassiter. These new statutes provided for the

appointment of counsel when a family member initiated the proceedings against an indigent

parent. They were signed into law by Republican governors Bobby Jindal of Louisiana and Bob

Riley of Alabama.115

The establishment of a broader right to appointed counsel is not a partisan liberal or

progressive issue, but is one that can obtain significant bipartisan support.

PROPOSAL FOR VIRGINIA

California and the Sergeant Shriver Civil Counsel Act

In 2009, the California legislature introduced A.B. 590, which would later be passed as

the Sergeant Shriver Civil Counsel Act. The law represents the largest effort by any state to

bridge the justice gap and provide indigent civil litigants with due process.116 Using the language

of the ABA resolution, the Sergeant Shriver Civil Counsel Act requires the appointment of

counsel for indigent litigants in “civil matters involving critical issues affecting basic human
114
Id. at 11.
115
Civil Right to Counsel Update, (Nat’l Coalition for a Civil Right to Counsel), Oct. 2008, available at
http://www.civilrighttocounsel.org/pdfs/2008-10-13-newsletter.pdf.
116
Brian Brophy, Note, A Civil Right to Counsel Through the States Using California’s Efficiency Project as a
Model Toward a Civil Gideon, 8 HASTINGS RACE & POVERTY L. J. 39, 39 (2011).

24
needs.”117 The specific legal areas under the basic human needs category are “housing-related

matters, domestic violence and civil harassment restraining orders, probate conservatorships,

guardianships of the person, elder abuse, [and] actions by a parent to obtain sole legal or physical

custody of a child.”118

PILOT PROJECT MODEL

The law requires the Judicial Council to solicit proposals for one or more pilot projects

that will take advantage of the resources already available in the community.119 Instead of

creating a separate organization to manage this new program, each project will be a partnership

between a court and one or more existing legal services providers.120 One legal aid organization

will serve as the lead agency for the project, screening potential clients for financial eligibility,121

evaluating the merits of cases, providing representation, and creating referrals to pro bono

attorneys when necessary.122 At the same time, the court is responsible for “providing

procedures, personnel, training, and case management and administration practices” that will

better protect the rights of those unrepresented litigants who are not able to be represented by the

legal services organization.

The projects are authorized for three year periods, during which time the effectiveness of

the projects must be assessed. If the projects are deemed successful, the Judicial Council may

authorize the renewal of the project and continued funding. The statute also sets out specific

criteria that the Judicial Council must consider when selecting which pilot projects to fund.

These include the likelihood that legal representation will affect the outcome of the types of

cases handled by the project, the likelihood of the opposing party being represented by counsel,
117
Cal. Gov’t Code § 68651(a) (West 2011).
118
Cal. Gov’t Code § 68651(b) (West 2011).
119
Cal. Gov’t Code § 68651(b)(1) (West 2011).
120
Cal. Gov’t Code § 68651(b)(4) (West 2011).
121
The household income must be no more than 200% of the federal poverty level under § 68651(b)(1).
122
Id.

25
the level to which the services provided will decrease the need for social services, and whether

there are already effective self-help or other court services in place to assist unrepresented

litigants.

This type of approach has some distinct advantages. First, it allows for the people most

knowledgeable about the problem—legal aid organizations—to craft the pilot programs. This

eliminates the concern that bureaucrats and legislators without extensive knowledge of the

problem might create programs that are unsustainable and impractical to implement. Second, the

law addresses the practical reality that, especially during difficult economic times, it can be

challenging or even impossible to provide an attorney to every person who truly needs one. By

enlisting the courts in creating a set of best practices for dealing with unrepresented litigants, the

law takes steps towards protecting the rights of indigent litigants who are not able to be served

by the pilot programs. Finally, there is a system in place to evaluate the projects to ensure that

the money provided to fund them is having the desired impact. When addressing a problem for

which every dollar spent is critically important, it is necessary to make sure that those funds are

being spent in the most productive way possible.

WHAT THE BILL DOES NOT ACCOMPLISH

Even considering all of the important steps the California legislature made in creating this

program, it is clear that the Sergeant Shriver Civil Counsel Act does not create a true civil

Gideon. A careful reading of the bill shows that the new law did not create a right to legal

services in that sense.123 The law also does not cover all of the areas that could easily fit under

the umbrella of “basic human needs.” While the Massachusetts bar included immigration,

asylum, and deportation issues as falling into this category,124 it is conspicuously absent in the
123
See also, Recent Legislation, 123 Harv. L. Rev. 1532, 1535 (2010).
124
Bos. Bar Ass’n Task Force on Expanding the Civil Right to Counsel, Gideon’s New Trumpet: Expanding the
Civil Right to Counsel in Massachusetts 3, 6 (Sept. 2008), available at http://www.bostonbar.org/prs/reports/
GideonsNewTrumpet.pdf.

26
California bill. It is likely that this was for political reasons; for example, it is reasonable to

assume that “allocating taxpayer money to pay for the legal defense of individuals accused of

breaking immigration laws would likely create fierce political opposition.”125

Another potential drawback of the program is “the risk of unchecked discretion.”126

Because the law does not create a guaranteed right to counsel, legal aid organizations are still

tasked with triaging cases, providing representation first to those whose cases are deemed more

likely to have a successful outcome. Whether consciously or not, this leaves the entire program

susceptible to bias; those more likely to win may be those who are seen as more sympathetic or

those who have stronger communication skills. Under a pilot project in the California system,

litigants like Lassiter would likely still be denied representation. While the program is designed

this way due to political realities and the need for practical implementation of the proposed

solution, the Sergeant Shriver Civil Counsel Act still perpetuates the troublesome proposition

that some litigants are more deserving of due process than others.

Implementing the California Model in Virginia

While Virginia’s poverty rate is lower than the national average, poverty remains a

problem of critical importance.127 According to the Virginia Department of Social Services,

more than 750,000 people in Virginia live in poverty. This number is based on the misleading

federal poverty level, which underestimates the basic cost of living. For example, in 2011, the

federal poverty threshold for a family of four was an income of $23,021.128 This figure is

certainly an underestimate of actual poverty, and therefore does not give the full picture of the

125
Recent Legislation, 123 Harv. L. Rev. 1532, 1536 (2010).
126
Id. at 1538.
127
Commonwealth of Va. Poverty Reduction Task Force, Poverty in Virginia, Report, available at
http://www.dss.virginia.gov/geninfo/reports/agency_wide/poverty_long.pdf (last accessed Oct. 22, 2012).
128
Poverty thresholds by Size of Family and Number of Children, U.S. CENSUS BUREAU (2011), available at
http://www.census.gov/hhes/www/poverty/data/threshld/index.html.

27
size of the population who is unable to afford legal representation when faced with eviction,

custody matters, and other legal issues affecting their basic needs.

To begin addressing this problem, I am proposing that the Virginia General Assembly

adopt a new law based on California’s Sergeant Shriver Civil Counsel Act. The pilot program

approach is an ideal way to institute a broader right to civil legal services while ensuring that

resources are being used effectively. Legal services directors would be able to shape the

structure of this program to best meet the needs of the population they serve.

I would, however, go a step farther than the California law and create an actual right to

appointed legal counsel in cases involving basic human needs. To the extent that the legal needs

are unmet by the pilot programs instituted by legal aid organizations, the court will be permitted

to appoint members of the private bar to represent these individuals on a pro bono basis. While I

suspect this provision will encounter considerable resistance from the bar, it is important that

such a provision be included. Financial limitations simply cannot stand in the way of providing

due process to all litigants in the Virginia courts. The private bar has been fiercely opposed to

delegalization efforts that would end the “professional monopoly” lawyers have in the legal

system.129 Since the problem of inadequate legal services is in part an effect of this opposition,

members of the bar must contribute to the solution. Furthermore, private attorneys have been

required to serve as appointed counsel for years in order to afford criminal defendants their due

process rights when public defenders are not available.130 This is merely the logical extension of

such a requirement.

129
LUBAN, supra note 28 at 246-47.
130
Caroline Wolf Harlow, Defense Counsel in Criminal Cases, U.S. DEP’T OF JUSTICE (Nov. 2000).

28
 BILL TO EXPAND ACCESS TO JUSTICE FOR LOW-INCOME FAMILIES: SB 1

Why We Need SB 1:

 More than 750,000 Virginians are currently living in poverty. This number has
increased over the last four years.

 Due to the economic recession, greater numbers of people are facing eviction,
foreclosure, and debt collection proceedings.

 People are finding it more difficult than ever before to afford legal representation for
divorce and child custody cases.

 Legal aid organizations are struggling under overwhelming caseloads and must regularly
turn away individuals with serious legal problems due to a lack of resources.

What SB 1 Does:

 Prioritizes the provision of legal services to individuals with cases involving basic
human needs, such as eviction, foreclosure, debt collection, divorce, and child custody.

 Provides tax payer relief by decreasing the need for social service programs.
Redirecting funding to the provision of legal services to keep people in their homes will
save $3 for every dollar spent.

 Provides administrative relief to the courts by increasing efficiency in the disposition of

cases and providing litigants with the tools they to comply with court procedure.

How SB 1 Works:

 One or more pilot projects will be implemented. These are designed as partnerships
between courts and existing local legal aid organizations, minimizing the creation of any
additional bureaucracy.

 Legal aid organizations heading these projects will screen clients and provide
representation or legal advice, and refer cases to the private bar when necessary due to
conflicts.

 Courts will establish a set of best practices to provide indigent, unrepresented litigants
with the information they need to dispense of their cases in an efficient manner.

 After a two-year trial period, the effectiveness of the pilot projects will be evaluated by
the legislature to determine whether or not to continue funding specific programs.

29
 SENATE BILL NO. 1
Offered November 29, 2012
Prefiled October 22, 2012

A BILL to provide for the appointment of legal counsel to indigent parties in specified
civil matters affecting basic human needs.
----------
Patron -- Carmon
----------

30
Be it enacted by the General Assembly of Virginia:

§ 1. This chapter shall be known and may be cited as the “Expanding Access to Justice Act of
2012.”

§ 2. Findings

A. There is an increasingly dire need for legal services for low-income Virginians.
1. More than 750,000 Virginians are living in poverty. As a result, Virginia
courts are facing an ever increasing number of parties who go to court without
legal counsel.
2. The U.S. Constitution and the Constitution of the Commonwealth of Virginia
are designed to provide justice to their citizens. The doctrine of equal justice
under the law is based on two principles. One is that the substantive
protections and obligations of the law shall be applied equally to everyone, no
matter how high or low their station in life. The second principle involves
access to the legal system. Even if we have fair laws and an unbiased
judiciary to apply them, true equality before the law will be thwarted if people
cannot invoke the laws for their protection. For persons without access, our
system provides no justice at all, a situation that may be far worse than one in
which the laws expressly favor some and disfavor others.
3. Due to insufficient funding from all sources, existing programs providing free
services in civil matters to indigent and disadvantaged persons, especially
underserved groups such as the elderly, the disabled, and children, are not
adequate to meet existing needs. Current funding allows legal services
programs to serve only a fraction of the people who need the help.
4. As a result, many Virginians are unable to meaningfully access the courts and
obtain justice in a timely and effective manner, if at all.

B. Increasing legal representation for low-income Virginians has direct economic and
administrative benefits for the state.
1. The fair resolution of conflicts through the legal system offers financial and
economic benefits by reducing the need for many state services and allowing
people to help themselves. There are significant social and governmental
fiscal costs of depriving unrepresented parties of vital legal rights affecting
basic human needs, particularly with respect to indigent parties, including the
elderly and people with disabilities, and these costs may be avoided or
reduced by providing the assistance of counsel where parties have a
reasonable possibility of achieving a favorable outcome.
2. Expanding representation will not only improve access to the courts and the
quality of justice obtained by these individuals, but will allow court calendars
that currently include many self-represented litigants to be handled more
effectively and efficiently. Without representation, significant costs have
been imposed on the judicial system and the public by impairing the ability of
the courts to efficiently process heavy caseloads, and eroding the public’s
confidence in our judicial system. While court self-help services are

31
 important, those services are insufficient alone to meet all needs. Those
services are much less effective when, among other factors, unrepresented
parties lack income, education, and other skills needed to navigate a complex
and unfamiliar court process, and particularly when unrepresented parties are
required to appear in court or face opposing counsel.

C. Current rights to civil legal representation must be expanded.

1. Both the U.S. Constitution and the Virginia constitution provide a right to
counsel in criminal cases where there is a possibility that jail time may be
imposed.
2. Virginia has acknowledged that the right to an attorney in cases where a
person’s liberty is at stake is crucial to protecting that person’s rights. This is
not limited to criminal cases, but includes, for example, involuntary
commitment to a mental institution.
3. Virginia now acknowledges that it is equally important to provide legal
representation to indigent litigants in civil cases where basic human needs are
at issue. The loss of one’s home or custody of a child can be just as
devastating for families as a criminal conviction.

§ 3. Appointment of Counsel

A. Subject to funding specifically provided for this purpose, legal counsel shall be
appointed to represent low-income parties in civil matters involving critical issues
affecting basic human needs in the following areas: eviction, foreclosure, debt
collection, divorce, and child custody.

B. This right to counsel is subject to restrictions as determined by the General Assembly.

C. The Senate Committee on Courts of Justice (hereinafter “Committee”) shall develop

one or more model pilot projects in selected courts pursuant to a competitive grant
process and a request for proposals. These pilot projects should be designed to
address the substantial inequities in timely and effective access to justice that often
give rise to an undue risk of erroneous decision because of the nature and complexity
of the law and the proceeding or disparities between the parties in education,
sophistication, legal representation, access to self-help, and alternative dispute
resolution services. In order to ensure that the scarce funds available for the program
are used to serve the most critical cases and the parties least able to access the courts
without representation, eligibility shall be limited to clients whose household income
falls at or below 125% of the federal poverty level. Projects shall impose asset
limitations consistent with the legal aid organizations’ existing practices in order to
ensure optimal use of funds.

D. Each project shall be a partnership between the court, a qualified legal services
organization that shall serve as the lead agency for case assessment and direction, and
other legal services providers in the community who are able to provide the services
for the project.

32
 1. The lead legal services agency shall be the central point of contact for receipt
of referrals to the project and to make determinations of eligibility based on
uniform criteria.
2. The lead legal services agency shall be responsible for providing
representation to the clients or referring the matter to one of the organizations
or individual providers with whom the lead legal services agency contracts to
provide the service.
3. To the extent practical, the lead legal services agency shall identify and make
use of pro bono services in order to maximize available services efficiently
and economically.
4. In the event that the lead legal services agency is unable to provide services
required under the project through direct representation or referral, the court
shall appoint a member of the private bar to provide the legal representation.
5. Due to the project income limits and focus only on specific legal areas, all
indigent parties will not be with representation, even when they have
meritorious cases. Recognizing this, the court partner shall, as a corollary to
the services provided by the lead legal services agency, be responsible for
providing procedures, personnel, training, and case management and
administration practices that reflect best practices to ensure unrepresented
parties meaningful access to justice and to guard against the involuntary
waiver of rights, as well as to encourage fair and expeditious voluntary
dispute resolution, consistent with principles of judicial neutrality.

E. The participating projects shall be selected by a committee appointed by the Senate

Committee with representation from key stakeholder groups, including judicial
officers, legal services providers, and others, as appropriate.
1. The committee shall assess the applicants' capacity for success, innovation,
and efficiency, including, but not limited to, the likelihood that the project
would deliver quality representation in an effective manner that would meet
critical needs in the community and address the needs of the court with regard
to access to justice and calendar management, and the unique local unmet
needs for representation in the community.
2. Projects approved pursuant to this section shall initially be authorized for a
two-year period, commencing July 1, 2014, subject to renewal for a period to
be determined by the Committee, in consultation with the participating project
in light of the project's capacity and success.
3. After the initial two-year period, the Committee shall distribute any future
funds available as the result of the termination or nonrenewal of a project
pursuant to the process set forth in this subdivision. Projects shall be selected
on the basis of whether in the cases proposed for service the persons to be
assisted are likely to be opposed by a party who is represented by counsel.
The Judicial Council shall also consider the following factors in selecting the
projects:
a. The likelihood that representation in the proposed case type tends to
affect whether a party prevails or otherwise obtains a significantly
more favorable outcome in a matter in which they would otherwise

33
 frequently have judgment entered against them or suffer the
deprivation of the basic human need at issue.
b. The likelihood of reducing the risk of erroneous decision.
c. The nature and severity of potential consequences for the
unrepresented party regarding the basic human need at stake if
representation is not provided.
d. Whether the provision of legal services may eliminate or reduce the
potential need for and cost of public social services regarding the basic
human need at stake for the client and others in the client's household.
e. The unmet need for legal services in the geographic area to be served.
f. The availability and effectiveness of other types of court services, such
as self-help.
g. The relative complexity of the area of law.
h. Whether the provision of legal services may eliminate or reduce the
need for and cost of public social services for potential clients and
others in the household.

F. Each applicant shall do all of the following:

1. Identify the nature of the partnership between the court, the lead legal services
agency, and the other agencies or other providers that would work within the
project.
2. Describe the referral protocols to be used, the criteria that would be employed
in case assessment, why those cases were selected, and the manner to address
conflicts without violating any attorney-client privilege when adverse parties
are seeking representation through the project.
3. Describe how the project would be administered, including how the data
collection requirements would be met without causing an undue burden on the
courts, clients, or the providers, the particular objectives of the project,
strategies to evaluate their success in meeting those objectives, and the means
by which the project would serve the particular needs of the community.

G. To ensure the most effective use of the funding available, the lead legal services
agency shall serve as a hub for all referrals, and the point at which decisions are made
about which referrals will be served and by whom. Referrals shall emanate from the
court, as well as from the other agencies providing services through the program, and
shall be directed to the lead legal services agency for review. That agency, or another
agency or attorney in the event of conflict, shall collect the information necessary to
assess whether the referred party is eligible for assistance through the project.

H. If both parties to a dispute are financially eligible for representation, each proposal
shall ensure that representation for both sides is evaluated. In these and other cases in
which conflict issues arise, the lead legal services agency shall have referral protocols
with other agencies and providers, such as a private attorney panel, to address those
conflicts.

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 I. Each pilot project shall be responsible for keeping records on the referrals accepted
and those not accepted for representation, and the reasons for each, in a manner that
does not violate any privileged communications between the agency and the
prospective client. Each pilot project shall be provided with standardized data
collection tools, and required to track case information for each referral to allow the
evaluation to measure the number of cases served, the level of service required, and
the outcomes for the clients in each case. In addition to this information on the effect
of the representation on the clients, data shall be collected regarding the outcomes for
the trial courts.

J. A local advisory committee shall be formed for each pilot project, to include
representatives of the bench and court administration, the lead legal services agency,
and the other agencies or providers that are part of the local project team. The role of
the advisory committee is to facilitate the administration of the local pilot project, and
to ensure that the project is fulfilling its objectives. In addition, the committee shall
resolve any issues that arise during the course of the pilot project, including issues
concerning case eligibility, and recommend changes in project administration in
response to implementation challenges. The committee shall meet at least monthly for
the first six months of the project, and no less than quarterly for the duration of the
pilot period. Each authorized pilot project shall catalog changes to the program made
during the two-year period based on its experiences with best practices in serving the
eligible population.

K. The Committee shall conduct a study to demonstrate the effectiveness and continued
need for the pilot program established pursuant to this section and shall report its
findings and recommendations to the Governor and the General Assembly on or
before January 1, 2018. The study shall report on the percentage of funding by case
type and shall include data on the impact of counsel on equal access to justice and the
effect on court administration and efficiency, and enhanced coordination between
courts and other government service providers and community resources. This report
shall describe the benefits of providing representation to those who were previously
not represented, both for the clients and the courts, as well as strategies and
recommendations for maximizing the benefit of that representation in the future. The
report shall describe and include data, if available, on the impact of the pilot program
on families and children. The report also shall include an assessment of the
continuing unmet needs and, if available, data regarding those unmet needs.

§ 4. This chapter shall not be construed to negate, alter, or limit any right to counsel in a criminal
or civil action or proceeding otherwise provided by state or federal law.

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