Vol. 84, No. 11, November 2011
Recently, lawyers from across the state offered comments at the Wisconsin Supreme Court’s public hearing on the “Civil Gideon” petition. Civil Gideon would require circuit courts to appoint lawyers at public expense for indigent defendants in civil cases in which the defendant’s basic needs – food, shelter, clothing, heat, medical care, safety, or child custody – are at stake.
Appointment of criminal defense counsel for indigent individuals has existed as a constitutional right for more than 50 years. Since Wisconsin’s statehood, courts have appointed counsel in criminal cases as routinely as courts have set bail. In 1978, the Wisconsin Legislature created the State Public Defender (SPD), authorized to provide indigent defense through use of permanent staff and private attorneys. Appointment of counsel changed from a county-funded judicial branch responsibility to an executive branch responsibility funded by general-purpose revenues, and thus the conversion was hailed as property tax relief.
State Bar Advocacy
State Bar advocacy for funding indigent defense has focused on the SPD agency budget rather than the court operations budget. Since 1978, appointment of counsel has become something of a lost art among the judiciary. Against this background, the discussion of court-appointed counsel at public expense in civil cases possesses a bewildering and magical quality. I appeared at the supreme court’s public hearing on this matter to express the view of the State Bar.
Some things are clear. The State Bar has long held the position that courts have inherent judicial authority to appoint lawyers to fulfill certain types of roles, including special counsel, guardian ad litem, and attorney for a party. Many Wisconsin attorneys have accepted such appointments and litigated extension of the right to counsel in individual cases in which due process demands court appointment.
The profession has committed itself in additional ways to responding to the public’s need for improved access to justice. Wisconsin lawyers have increased their individual pro bono efforts. We have secured ethics changes to facilitate the unbundling of legal services and the operation of court-annexed and community outreach services. State Bar members benefit from malpractice insurance coverage for pro bono work and a staff coordinator to support pro bono activities. Despite difficult economic times, each State Bar member contributes financially through yearly payments to the Wisconsin Trust Account Foundation.
The State Bar’s seminal “Justice Gap” study stands as a successful public policy advocacy instrument for the funding of civil legal assistance. The State Bar took the lead in creating the Access to Justice Commission, an enduring institution committed to an improved statewide delivery of civil legal assistance. The Board of Governors reserved a $300,000 fund to spur access-to-justice innovation and the board continues to support the commission’s work. Wisconsin lawyers as individuals and as a profession are doing our part to close the justice gap. But more work is needed. Supreme court leadership is needed.
A Call for Court Action
The Civil Gideon petition is a clarion call to the Wisconsin Supreme Court to join bar leaders and lawyers statewide in the effort for equal justice, by adopting a rule that authorizes circuit court appointments of counsel in civil matters and by ordering that judges be educated on the appointment of counsel. Doing less will place in the dustbin of legal history court appointment of counsel, a lost art from a time when judges possessed near magical power to do the right thing for people seeking justice in their courtrooms.