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Legal analyst: Civil Gideon law could overwhelm civil courts

By Chris Rizo | Oct 29, 2009

Ted Frank

Mike Feuer (D)

SACRAMENTO, Calif. (Legal Newsline)- A new California law that gives lower-income residents legal representation in certain civil proceedings is raising concerns with a leading national legal observer.

The so-called "civil Gideon law" will at least temporarily provide free legal counsel for poor Californians doing such things as fighting evictions, home foreclosures or in family law matters such as child custody disputes and cases of neglect.

Legal analyst Ted Frank, who studied the issue of affording the poor free civil representation for the American Enterprise Institute, said the effects of the California law will be widespread.

"The landlord who has to do an eviction has to hire a lawyer now, foreclosures become more legally complicated and that all raises expenses and that money has to come from somewhere," Frank told Legal Newsline. "There are certainly going to be more cases that are going to be litigated than there otherwise would be."

The pilot program will run from July 1, 2011, until July 1, 2017, under legislation signed by Republican Gov. Arnold Schwarzenegger this month, making California the first state to create a civil right to counsel program.

The program will be bankrolled with a $10 increase in court fees. The fee increase is expected to generate roughly $11 million annually.

Cases that would not otherwise reach the state's already strained courtrooms will flood courthouses in jurisdictions where the pilot program operates, Frank said in a telephone interview Wednesday from his office in Arlington, Va.

"When something is free you don't have any incentive not to use it to the hilt," he said.

The program, he added, is tantamount to a tax increase for middle-class Californians.

"It's not just the poor who cannot afford lawyers. Not all landlords are rich plutocrats," he said. "You are giving this benefit to the poor but not to the middle-class - it becomes a tax on the middle-class."

The bill was opposed by state Sen. Tom Harman of Huntington Beach, the only Republican so far running for state attorney general.

The law is named for the 1963 U.S. Supreme Court decision in Gideon vs. Wainwright that established indigent criminal defendants' constitutional right to an attorney.

The new California law, outlined in Assembly Bill 590, will fund public interest law groups. Firms receiving program money will be chosen by the Judicial Council of California, which administers the state court system.

"This law helps ensure essential legal rights are not sacrificed simply because someone cannot afford to hire a private lawyer," said state Assemblyman Mike Feuer, the Los Angeles Democrat who authored the bill. "The current economic crisis and state budget cuts make this measure more critical than ever. Just as health services can decrease the need for expensive ER treatment, timely access to legal services can keep a family in their home or a child with her mother or father, which ultimately saves taxpayers money."

Californians living at 200 percent above the federal poverty guidelines or less will be eligible for the program, meaning that a family of four with an annual income of $44,100 will qualify.

In August 2006, the American Bar Association called on states to provide a right to counsel in civil cases where "basic human needs," such as housing, are at stake.

Frank, who currently runs the Center for Class Action Fairness, said the American Bar Association has been pushing for civil Gideon programs across the nation.

"This is something that happened very, very fast in California," he said. "You didn't even know it was being considered and a week later it was law. If it can happen that fast in California it can happen that fast elsewhere."

From Legal Newsline: Reach staff reporter Chris Rizo at chrisrizo@legalnewsline.com.

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