I am happy to guest post Russell Engler’s helpful and insightful response to Part II of my series on assessing innovations. Part II focused on a rights-oriented analysis. Russell writes about what he calls the “targeted representation” approach as follows:
There are a broad range of views among Civil Right to Counsel /Civil Gideon advocates, which are not fully represented in Richard’s discussion. The apparent either/or choice Richard describes is between a categorical right to counsel, in which everyone with a certain type of case gets counsel, or individualized system in which the right is determined on a case-by-case basis. I believe this analysis misses the targeted represented option which is in between, and frankly fits the notion of triage.
The targeted representation approach involves the identification of subcategories within certain substantive areas, and triggers to identify them. The subcategories could be all elders, minors or people with disabilities or children, within such a substantive category. They could instead be gleaned from factors related to power imbalances, with or without a merits screen. But once the trigger is identified (or features identified in a jurisdiction or type of proceeding) the right kicks in. Outside the scope of the subcategory, there still would be the right/obligation to have the court look at the matter on an individualized basis. But the subcategory analysis avoids putting the demonstrative burden of proving the RTC on the vulnerable litigant most in need of counsel and ill-equipped to prove the need. The litigant who can articulate the need for the right and carry the burden is probably less likely to need counsel. In my view, the targeted representation model flips the burden in a crucial way, and better protects the most vulnerable litigants without putting them in the impossible situation of having to prove the need for counsel in the face of a system that resists appointment.
This targeted representation approach is certainly the one embraced by Civil Right to Counsel Advocates in Massachusetts, as reflected in two reports identified below. In California, the Sargent Shriver pilots projects are consistent with the targeted representation approach, involving a sorting of cases, both in the housing and custody area, based on a series of factors that lead some clients to receive full representation and others limited representation. The Civil Right to Counsel in the immigration area is evolving this way as well (unaccompanied minors and people with mental disabilities, so tied to capacity, though note the push for full representation in NYC for detained immigrants, with a cost savings justification). The approach is also consistent with some of the City Council ordinances championed by housing advocates in NYC- one version provides counsel for seniors facing eviction, while a second provides counsel for all families with children (a third would provide a more comprehensive right to counsel ion eviction proceedings)
For those unfamiliar with the developments in the areas I have described, I list below resources for more information. My main point is to move our collective thinking past the point of either/or analysis and to a consideration of the targeted representation approach. The line-drawing can be painful, but where consensus can be reached in a jurisdiction about subcategories, the approach offers the promise of protection for many vulnerable litigants facing loss of their basic human needs without the automatic requirement that full representation must as a result be available to every litigant in a substantive category even in the face of evidence that lesser forms of assistance might achieve comparable results.
The links, or citations, below provide more information on the initiatives referred to above, including 1) the two reports from Massachusetts, 2) two articles by Clare Pastore describing the Shriver Pilots in CA, 3) links to litigation and reports in the Immigration area and 4) links to the NYC housing ordinances.
Boston Bar Association Task Force on Expanding the Civil Right to Counsel Gideon’s New Trumpet: Expanding the Civil Right to Counsel in Massachusetts, (2008). available at https://www.bostonbar.org/prs/nr_0809/GideonsNewTrumpet.pdf
The Importance of Representation in Eviction Cases and Homelessness Prevention: A Report on the BBA Civil Right to Counsel Housing Pilots (March 2012)( The Importance of Representation). http://www.bostonbar.org/docs/default-document-library/bba-crtc-final-3-1-12.pdf.
California- Shriver Pilots
Clare Pastore, “Gideon is My Co-Pilot: The Promise of Civil Right to Counsel Pilot Programs,” 17 U.D.C. L.Rev. 75 (2014) http://www.udclawreview.com/wp-content/uploads/2014/08/GIDEON-IS-MY-CO-PILOT-THE-PROMISE-OF-CIVIL-RIGHT-TO-COUNSEL-PILOT-PROGRAMS.pdf
Pastore, Clare, California’s Sargent Shriver Civil Counsel Act Tests Impact of More Assistance for Low-Income Litigants, Clearinghouse Review Journal of Poverty Law and Policy, 47 Clearinghouse Rev. 97, July-August 2013
Franco-Gonzalez litigation (mental capacity)
JEFM litigation (unaccompanied minors)
The case, J.E.F.M. v. Holder, was filed in U.S. District Court in Seattle, Wash.
The Complaint is available at: http://legalactioncenter.org/sites/default/files/Counsel%20Complaint.pdf
NYC Report on Cost Savings involved in representing detained immigrations facing deportation:
NYC Housing Ordinances