Author: Richard Zorza

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A Final Turner Post from Your Co-hosts, Richard Zorza & David Udell

The Turner Symposium is over.  One week and 18 posts later, we are very proud of the ideas and insights that have been shared here. Thank you to all who posted for a spectacularly worthwhile and open conversation about Turner v. Rogers (the full list of participants is available after the leap).

While the Court found no categorical civil right to counsel it usefully clarified the obligations of trial court judges and courts toward unrepresented litigants, particularly those facing the risk of incarceration.  Our panelists identified a range of possible positive jurisprudential and access-to-court impacts for Turner over time:

  • If trial courts deliver on their new obligation to assure “fundamental fairness” through  “procedural safeguards” (and not just in incarceration cases) we will look back at Turner as having opened up the courts, and as having shifted from the state to the courts the responsibility to provide access.  If so, the case will indeed be a transformative landmark.
  • If Access to Justice Commissions are empowered by Turner and state leadership to expand their role in reviewing and changing the accessibility of the system as a whole, then the case will be seen as an institutional game changer.
  • If the case prompts national leadership within the courts and within the bar to develop national strategies for forms, judicial education and Justice Index type benchmarking, this too will have long term transformative impacts.
  • If the Supreme Court later finds categorical rights to counsel for litigants in cases with governmental opponents, lawyers on the other side, or complications beyond civil contempt, Turner may be seen as laying the crucial foundation for those rights.
  • If categorical rights to counsel resonate with more state courts and legislatures, Turner’s denial of an “automatic” federal right may be seen as largely beside the point.
  • If we identify “safeguards” that work, and how best to use them, Turner may be seen as having prompted the research and analysis that assured “fundamental fairness.”
  • If we figure out which litigants and cases need counsel, and which can be heard with   alternatives, Turner may be seen as having made that progress possible too.
  • If we loosen unauthorized practice laws, Turner’s reliance on “complexity” may be seen as having made the absoluteness of those laws impossible to justify whenever counsel is denied.

Of course, our panelists have seen darker scenarios too:  the risks that “safeguards” in fact won’t mean much, and that civil right to counsel claims will find new barriers in Turner.  These are the dangers.

We can’t control today what the Court did last week, but the Turner Symposium prompted deeper thinking in a shorter period of time on a broader range of issues than many of us could have imagined.

As to what will actually come to pass?  Time will tell, but at least some of that will be up to all of us. Read More

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Turner’s Trombone Blows for Every Self-Represented Litigant

Turner v. Rogers, 564 U. S. ___ (2011), (Slip Opinion here) should be considered a landmark decision for the self-represented.  In its first ever trip to the civil self-represented courtroom (beyond right to counsel issues), the Court establishes that:

  • There is a due process right to court “procedural safeguards” that ensure the protection of the right to be heard in casers involving potential deprivation of a constitutionally protected interest.
  • The extent of those “procedural safeguards” depends on:  “(1) the nature of ‘the private interest that will be affected,’ (2) the comparative ‘risk’ of an ‘erroneous deprivation’ of that interest with and without ‘additional or substitute procedural safe- guards,’ and (3) the nature and magnitude of any countervailing interest in not providing ‘additional or substitute procedural requirement[s].” Slip Opinion at 6, quoting Mathews v. Eldridge, 424 U. S. 319, 325 (1976).  (Interestingly, while the court does not explicitly limit the use of the costs of procedures as a “countervailing interest,” it does not mention cost in the application of the due process balancing test to these facts.)
  • Ultimately overall “fundamental fairness” and accuracy are the touchstones as to what procedures are constitutionally required. Slip Opinion at 13-15.
  • In this case of threatened civil contempt incarceration, the constitutionally required procedures include: (i) notice of the specific key determinative element (here ability to pay the overage); (ii) a form to gather information on the key elements; (iii) questioning on this key element from the bench (at least when needed to clarify the situation), and; (iv) an explicit (not implied) determination of the key element. Slip Opinion at 14
  • The right to “fundamental fairness” and accuracy of one seeking government’s assistance in depriving someone of a constitutionally protected interest (i.e. plaintiffs) is very much part of the constitutional calculus, not only that of those facing the deprivation (i.e. defendants). (Here the risk of unfairness or inaccuracy caused by providing counsel to one side when the other did not have counsel was a major consideration for the Court.  Of course, the Court had not been asked to, and did not consider providing counsel to both.) Slip Opinion at 13-14.
  • The specific “alternative procedures” are required even though the government is not on the other side, and the opposing party is also self-represented.  Were these different, greater protections, including possibly the right to counsel at state expense, might be required. Slip Opinion at 15-16.

I believe that this case therefore means that:

Read More

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Turner Plus Three — A Mid-Symposium Reviewing and Focusing Post

As of day three, post Turner, some trends have begun to emerge in the commentary, on this blog at least.  So, this is an attempt by the two co-hosts of this Symposium, David Udell and Richard Zorza  to sum up what we see here, and to use it as a springboard for a new set of perhaps more general questions.

Posters commented at length with respect to the two core issues raised by Turner: i) the extent of trial court judges’ obligations to assure “fundamental fairness” through a variety of procedures, in civil contempt/incarceration or other types of cases and ii) the impact on whether and when a civil right to counsel is required by federal constitutional law.

As the first statement by the Supreme Court of trial court judges’ access to justice due process responsibilities (beyond criminal cases) to unrepresented persons, Turner is a landmark.  The Court embraced the Solicitor General’s argument that trial court judges should provide safeguards to individuals facing incarceration in child support cases, specifically: 1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay. In endorsing, and in some situations requiring, the use of court forms and judicial questioning, it is a huge advance, especially given the level of opposition that each these access-friendly practices has faced.

Significantly, our posters observed both that the Court’s mandate to trial court judges to rely on “alternative procedural safeguards” offers the promise of better access (perhaps extending beyond civil contempt proceedings) but that such safeguards i) should not be presumed to exist or to be effective, without close scrutiny (David Udell and Jim Baillee), ii) may prove to be a sham without advocacy to strengthen them (Abel), iii) iii) fail to take into sufficient account the risk of erroneous incarceration (Engler), and iv) fail to take into account the complexities of civil contempt (Pollock) in the child support context (Mergler).

On civil right to counsel, Turner declines to recognize an “automatic” right to counsel in child support contempt proceedings initiated by an unrepresented party, but does not extinguish claims for a civil right to counsel in proceedings initiated by a represented party.  Rather, it expressly saves these for another day.  As pointed out by one blogger (Martin Guggenheim), Turner recognizes that counsel may well be categorically required in civil contempt cases in which the other side is the government, has an attorney, or in which the question before the court is unusually complex.

Beyond leaving open certain future claims for categorical rights to counsel, Turner implicitly recognizes, as articulated decades earlier in Lassiter, that trial court judges can make individualized decisions about whether counsel must be appointed in a given case.  Moreover, as one poster observed (Engler), the court establishes something of a triage system, requiring judges to determine what level of protection is needed in an individual case, potentially requiring appointment of counsel in one case while relying on a package of safeguards short of providing counsel in another.  In theory, it’s a “whatever it takes” approach to assuring “fundamental fairness.”

Our posters also identified ways in which the case is a step backward for civil right to counsel (Russell Engler, Marty Guggenheim) including:

  • Turner focuses on the civil/criminal distinction even though the stakes in some civil proceedings are as important as in some criminal proceedings.
  • Turner emphasizes incarceration as a required but not sufficient criterion to merit appointment of counsel, a position that had been more ambiguous under Lassiter.
  • Turner may suggest that categorical rights to counsel should be limited to cases in which the government is a party, a position that would undermine claims for counsel in disputes among private individuals, such as child custody matters.

Notable too is that no Justice took a stand in support of a right to counsel for all persons facing civil contempt incarceration.   Still, the majority was careful to limit its ruling to privately initiated contempt proceedings in which the initiator is unrepresented, and to explicitly leave open questions about what should happen in other categories of cases.  A good thing about balancing tests is that they allow for re-balancing in other circumstances.

That said, on what might we be focusing our discussions in the next few days? Read More

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Turner v. Rogers is Released — Due Process Requires Reversal Despite Lack of Categorical Right to Counsel — Symposium Launched

The Supreme Court has decided Turner v. Rogers. Opinion by Justice Breyer (5-4), with Justice Kennedy joining the majority. http://www.supremecourt.gov/opinions/10pdf/10-10.pdf. The Court basically accepts the Solicitor General’s position that reversal is required, not because there is a categorical right to counsel, but because the trial court failed to follow available procedures to establish whether non-paying father had a current ability to pay.

The Symposium is launched.

Here are the (to me) major highlights of the majority Opinion:

  • The Court reaches the case as “capable of repetition,” while “evading review.” (Slip Opinion at 6.)
  • Civil contempt has lesser protection than criminal. (Slip Opinion at 7)
  • In determining whether there is a right to paid counsel at a civil contempt hearing, the Court applies the Mathews v. Eldridge factors of private interest impacted, risk of erroneous deprivation, and countervailing interest in nor providing additional protections.  (Slip Opinion at 11.)
  • Arguments AGAINST need for counsel in all cases are: (1) Ability to pay is like indigence in that it is something that can often be determined before decision as to whether counsel can be provided; (2) the opposing side is NOT the state, and often there is no opposing counsel, and creating a right to counsel would “create an asymmetry of representation” increasing risk of unfair decisions; (3) as pointed out by the Solicitor General, there are “available at set of ‘substitute procedural safeguards’ quoting Mathews.  (Slip Opinion at 13-14.)
  • Importantly for the decision: “Those safeguards include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.”  (Slip Opinion at 14).  Citing to Solicitor General Brief and oral argument.
  • The Court is careful to limit its holding to cases in which the opposing party is not the state. (Slip Opinion at 14.)
  • Also: “Neither do we address what due process requires in an unusually complex case where a defendant ‘can fairly be represented only by a trained advocate.’” Quoting Gagnon.  (Slip Opinion at 16.)
  • Dissent, per Justice Thomas, argues, inter alia, that the procedures suggested by the Solicitor General are not properly before the court, and so “[a]lthough I think that the majority’s analytical framework does not account for the interests that children and mothers have in effective and flexible methods to secure payment, I do not pass on the wisdom of the majority’s preferred procedures. (Slip Opinion [dissent] at 12.)

Here are some questions that I hope our symposium addresses in the week to come.

  • What do we do to make sure that this decision is not used to undercut the current law in those states that do provide counsel in these cases?
  • Does the discussion of the roles of the “civil” label and of the threat of incarceration provide any openings for ongoing strategies?
  • Does this emphasis on the absence of the state on the other side impact the overall strategy to enhance the provision of counsel?  Is there a follow up case, and what are the implications of the fact that this case was brought first?
  • Does the Court’s limitation of the case to those that are not “unusually complex” and acknowledgement that some cases require a “trained advocate” suggest a long-term strategy to illustrate the complexity of such cases, starting with examples of obviously complex cases?  Does this suggest an attempt to re-read Lassiter to focus on its implication, here arguably strengthened, of a right to an individualized determination of the need for counsel (or other procedures)?
  • Does the Court’s emphasis on the accuracy of the decision under the Mathews test mean that we need to emphasize the accuracy issue more in future analysis and litigation?
  • Does the reference to “substitute procedural safeguards” open a door for urging on courts (both through access to justice commissions and potentially litigation) the constitutional significance, as well as the underlying value, of courts reviewing their procedures and services to ensure that litigants are properly heard in all matters?
  • Does the reference to the “the use of a form (or the equivalent) to elicit relevant financial information” in the discussion of these safeguards similarly strengthen the arguments for much broader use of forms – including automated forms – in a broad range of cases?
  • Does the reference to the “opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form” similarly open the door for much broader court attention to the role of judges in asking engaged but neutral questions designed to get at the truth?  What are the roles of codes of judicial ethics in this process?
  • Does the reference (in the Slip Opinion at 15) to the possibility that “sometimes assistance other than purely legal assistance (here, say, that of a neutral social worker) can prove constitutionally sufficient,” open the door to advocacy for more court-based informational services, or even innovations with non-lawyers being allowed to provide different kinds of help in preparing or presenting cases?

P.S.  My co-moderator of this Symposium, David Udell, has not yet been able to add his always highly valuable perspectives to this post.  I am sure he will have points to make and questions to ask.  We will both be adding more detailed analysis in the week to come.

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Lack of Civil Gideon and Unauthorized Practice of Law Rules — Are They Consistent?

The recent focus on Civil Gideon triggered by the pending US Supreme Court case, Turner v. Rogers (please track the Turner Symposium here on Concurring Opinions, when the decision comes down), has set me thinking about the relationship between Civil Gideon and our current unauthorized practice of law (UPL) rules. By UPL rules, I mean the current sets of laws that generally fence off large areas of legal activity, making it unlawful for anyone without a law degree to provide services in those areas in any context at all.  I do not mean the general concept that legal services of different kinds can be regulated.

Here’s my question:  In the end, isn’t a ruling that there is no right to civil Gideon assistance in a case really the same as a ruling, at least in significant stake state deprivation cases, that the case is simple enough that people can do it on their own – even if technically the court is more likely to use a balancing test saying that the case is easy enough that it is unfair to make the state pay for counsel.  See, e.g. Lassiter v. Dept of Social Services, 452 U.S. 18, 33 (1981) (analyzing, in Part III, limited impact on the outcome on the specific facts, of lack of counsel); Turner v. Rogers, Transcript of Oral Argument, at 20-21, (Associate Justice Alito questioning petitioner’s counsel Seth Waxman as to whether it would be sufficient if the Court were to require judicial engagement when determining the issue of whether defendants are in civil contempt for having “willfully” refused to pay, except in harder cases — “And then if you run into some of these complicated legal problems or arguably complicated legal problems that you referred to, maybe in particular cases there would be need for the appointment of counsel.”)

Insofar as the Court denies a right to counsel for matters that are too simple, wouldn’t that also eliminate any basis for UPL rules?  After all, the premise of UPL rules is that a matter is too complex to be handled by non-attorneys. The main other argument for ULP rules is that there is a need for the activity to be regulated as to the “character” of the person helping and the quality of the service, but that is really a different matter, that could be taken care of in many ways other than requiring a legal education and the passing of the bar exam — see below.)

Put another way, where is the justification for the legal system to say, in any important matter that triggers due process concerns, that it is OK to require that a lawyer, and only a lawyer be allowed to help, and then to refuse to make one available?  Either the case is simple enough for non-lawyers to help, in which case the UPL prohibitions make no sense (and are arguably unconstitutional in such circumstances), or it is too complicated for a non-lawyer.  If it is too complicated, there must be help from a lawyer, and one should be provided to those unable to pay.  Indeed Professor Tribe points out the unconstitutionality of requiring the use of a legal path, and then making it financially impossible, Boddie v. Connecticut, 401 U.S. 371 (1971) (holding that if state prescribes only one method of dissolving marriage – judicial divorce, it can not deny the route to those who can not afford it; here the state is requiring that help must come from an admitted lawyer, and then refusing to provide one to the indigent.)

Any claimed middle group of cases — that a case is complicated enough that you can not allow non-lawyers to help, but simple enough that people can not do it on their own, just makes no ultimate sense.  I suppose one could assert that there is so much easier for a self-represented litigant to handle their own case than for a non-lawyer to help them that you can require people to handle their own cases.  But the only reason I could think of for this would be that the process of drawing out what someone else’s actual problem is, is so difficult that you need a law degree to do it. But we all know that the skill of drawing out from someone what their problem is, is hardly taught in law school at all — more likely in social work school.

As to the skill of legal “issue spotting,” that would be just as much needed by the self-represented as by any helper, and if needed in a case, should move it into the category of those needing counsel. Remember too, at least in this country, the structure of UPL rules cannot be justified as preventing unregulated commercial exploitation of the vulnerable.

In this country those rules reach to any activity that is substantively considered the practice of law, regardless of the relationship between the helper and the helped, regardless of whether provided by a non-profit or one in business, and regardless of whether money changes hands.  So the rigor and comprehensiveness of ULP rules can not be justified in such ethical and protective terms, but only in skill terms.  There are, of course, legitimate concerns about the ethics and quality of services provided by non-lawyers (as by lawyers), but there are many regulatory ways of taking care of this.  Abolishing or modifying the rules governing UPL is not the same as having no consumer protection regime.  Such an appropriate protective regime might potentially include registration, an insurance requirement, a complaint mechanism, and/or limitation to certain activities, including possibly to non-profit practice. Moreover, getting the line right would make it easier for appropriate consumer protection enforcement.

You could also argue, I suppose, that UPL rules do no harm, because, after all, you can always represent yourself, and a lawyer is denied only in cases where it would make no difference.  But surely that is a matter for the person providing or receiving the help to decide, and, to the extent we might be talking about associational or commercial relationships, that relationship can only be reasonably, not unreasonably, regulated.  (Indeed the prohibition, particularly in the associational non-commercial contest, might raise First Amendment questions.  It may well be that these First Amendment implications and the over and under inclusiveness of the current structure of UPL are what might doom the current bright line between lawyers and non-lawyers and between legal practice and non-regulated activities.)

In the end, I would hope that this insight — if it is that — will help us all focus more comprehensively on the whole access issue with its many components, and on the need not to focus on battles about small parts of it.

Final Note:  Although I have focused this early pre-post on the possible UPL implications of Turner, this is, of course, just one aspect of the much larger conversation we are anticipating once Turner comes down.

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Avoiding the “Shut Down Effect” from Uncertain Research Results

Lurking behind much of the debate in this symposium is anxiety that negative findings about access to justice services will strengthen and facilitate attempts to reduce resources for access to justice services.

While it would be impossible to rebut the claim that this might happen, that can not be an argument against conducting or reporting research.  On the contrary, it has to be an argument for more and better research.  Having been involved in access to justice for decades, I am all too aware that it never seems to be the right time to make ourselves vulnerable — so the answer has to be always, because that is the only way to gain credibilit..

But this does all raise the question as to how research should be structured, analyzed, and particulalry, reported in order to minimize the risk of results inconsistent with the ultimate findings of the research, in all their complexity and subtlety.

Some thoughts:

  • Generality of Reporting.  The headings, abstract, etc, must be structured to accurately reflect the generlity of the research
  • The Reporting of Context. Studies should be very careful about describing accurately the context in which treatment is provided.
  • Randomization/Observation.  Where studies are not randomized, that must be very clearly reported, and selection bias must be loudly proclaimed, not the subject of a footnote.
  • Explanation of Statistical Significance. The issues of statistical significance must, to the extent possible, be explained as clearly as possible, in lay terms.  The failure to do so, when it occurs, makes  both overstatement an unfair critique easier.
  • Lay Version. Research should be made available in a lay summary version, without complexities but with the detail and cautions.  This will reduce the risk of the results being oversimplified by the media and/or others
  • Vigilance as to Over/Under Generalization. The text should not only be accurate as to the level of generality of the research, but should be explicit as to the kinds of generalizations that might erroneously be drawn from the research. (This makes it easier to rebut overdrawn conclusions made by legal or political opponents.)

I would very much appreciate additions to such best practices.  There are surely many more in the social sciences.  Those suggested here, however, are less about avoiding error, and more about avoiding error in the reporting or use by others.

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Some Initial Thoughts on The Offer of Representation Study — Designing a 100% Access System

Let me suggest that this study, regardless of, or perhaps because of, its controversial nature, will be looked back at as a critical event in the history of access to justice.  Context is, of course, all, not only in understanding the data reported in the study, but also in assessing its overall meaning and impact, and in discussing the future directions it should lead to.

For me, the key context is that this is a time in which there is a broad national consensus, at least among national constituency organizations, about what is needed to achieve access (court simplification and services, bar flexibility, and legal aid efficiency and resources), but also a lack of political will to move that consensus forward in the broader political arena.

Part of the lack of political will comes from a deep fear of financial consequences.  Whatever the intellectual achievements of the Civil Gideon movement, the fact remains that litigative efforts have largely failed.  Indeed, the oral argument in the Supreme Court last week on the civil contempt / child support counsel issue again illustrated the inevitable impact of financial concerns. (Transcript here).  E.g Transcript at 38 (“massive change.”)

I believe that we are only going to make truly significant progress on access to justice in these tough times (which are likely to go on for a long time, for state courts at least, given the changes in the structures of state budgets) is to convince decision makers that we can provide access to justice while controlling costs.  This is very hard to do, given the entitlement model that ground so much of the advocacy.

However, I see in this paper — as well as the discussion about it, and others that are in the pipeline, the beginning of the analysis that can give us the cost estimates, and the cost controls that will make access to justice politically unassailable.

To be concrete, my own view, having actually been an unemployment advocate in Massachusetts, before law school in the 1970s, and being familiar with the advaocy structures that have grown up, is that these results are best understood as the product of the (relatively) accessible nature of the agency, the high benefits win rate, the lack of experience with the system that second year law students suffer,  the fact that the non-treatment group so often got representation — which should surely have been better than that provided by students.  I should add that my own experience with the agency was that winning was not a matter of legal or forensic skill, but rather a matter of internalizing, and communicating to clients one simple cultural message “I want to work so hard it hurts”.  But most of all, I think that a large portion of these cases were doomed to win or lose, regardless of what kind of assistance they got.  In other words, representation of any quality might make less difference than it should — with one importance caveat.  Much of the impact of advocacy in this area depends on working with the ultimate UI claimant long before the claim is filed, and ideally long before the employment is terminated.

Why does this matter?  It matters because in a cost effect access to justice system, we need to find a way to provide resources only in cases in which they have a significant chance of making a significant difference, and even in those cases to provide only the cheapest help that will acheive that goal.

I think that this study highlights the ultimate possibility of making these determinations.  This is because we here see one form of treatment, delivered in one context, and we all agree, I think that we need to understand both the treatment and the context better to understand the meaning of the study.  This is the first piece of randomized mosaic that will ultimately produce a multi-dimensional picture of what makes and difference and when.  When we know that, we will be able to figure out what systems will allow us to decide who gets what in terms of help, and how such systems can be grounded on broadly legitimate factors.  In other words we need a triage system that has wide intellectual and political legitimacy, and that considers how to leverage recent innovations in court and bar services to minimize the number of situations that need the most expensive forms of access services.  The most interesting randomized studies of all will be those that compare different systems of triage, including both different criteria, and different decision-makers.  I would very much appreciate thoughts on how this work might be advanced.

Those interested in the possible scope of the access to justice consensus, including its relationship to triage, can read my recent judicature article here.  Those interested in parsing the recent Supreme Court argument  can look at my recent blog here.