Benjamin Barton (Tennessee) has written, “Against Civil Gideon (and for Pro Se Court Reform).” Article here. (nod to Legal Theory Blog) Last week I did ethics CLE for direct services lawyers and they are pretty excited about the potential of Civil Gideon. Abstract:
This Article argues that the pursuit of a civil Gideon (a civil guarantee of counsel to match Gideon v. Wainright’s guarantee of appointed criminal counsel) is an error logistically and jurisprudentially and advocates an alternate route for ameliorating the execrable state of pro se litigation for the poor in this country: pro se court reform.
Gideon itself has largely proven a disappointment. Between overworked and underfunded lawyers and a loose standard for ineffective assistance of counsel the system has been degraded. As each player becomes anesthetized to cutting corners a system designed as a square becomes a circle
There is little in indigent criminal defense that makes one think that a guarantee of civil counsel will work very well. If Courts have not required funding for meaningful representation in the serious cases covered in Gideon (including felony and death penalty prosecutions), it is extremely unlikely that they would do so in civil cases like eviction or deportation.
Moreover, focusing our attention on pro se court reform is a much, much more promising and likely palliative to the legal problems of the poor. Lastly, and most importantly, civil Gideon is a deeply conservative and backward looking solution to this problem, while pro se court reform has the potential to do more than just help the poor. It has the potential to radically reshape our justice system in ways that assist everyone.