Yesterday marked the 50th anniversary of the United States Supreme Court’s decision Gideon v Wainwright which required states to provide attorneys for indigent people charged with crimes. The case was decided under the Sixth and Fourteenth Amendments to the Constitution. Clarence Gideon had been charged with stealing cigarettes, beer and wine from a poolroom in Panama City, Florida. One witness identified him. When his trial began Mr. Gideon told the judge that he was not prepared for trial because he did not have an attorney. The judge explained to him that under the laws of the State of Florida the court could only appoint counsel in capital cases. Mr. Gideon was tried and convicted. His case ended up before the US Supreme Court where he won a great victory for unrepresented criminal defendants.
Ever since Gideon, advocates for the poor (and increasingly middle class as well) have argued that the right to counsel should be extended to civil matters. Currently you can have your children taken away (in some states but not in New York State), lose your home and even in some instances be sent to jail without ever having had an attorney. In New York City Housing Court approximately 99% of tenants and 20% of landlords appear without counsel.
While a savvy, well-spoken and smart individual can do a good job representing him or herself, self-representation is no substitute for a good attorney. Rules governing pleading and evidence are particularly difficult for a pro-se litigant. A pro-se litigant is disadvantaged in not being familiar with practical aspects of litigation. In a specialized area such as landlord-tenant law, particularly when it comes to rent regulation, a pro-se litigant’s lack of familiarity with either established or recent case law is another disadvantage. Even attorneys with years of practice can fall into traps if they are not familiar with the “impenetrable thicket” of rent regulation.
Even if an unrepresented person was able to master the law and procedures necessary to effective representation, there is another reason why self-representation is not ideal. As they say, only a fool would have himself as a client. An attorney or even non-attorney advocate has an emotional distance from a situation that makes it easier to assess it and present it in a rational manner. Being too close to a controversy, having too much personally at stake can cloud ones judgment. Finally, rightly or wrongly, many if not most judges look at attorneys, fellow “officers of the court” with a higher level of respect than litigants.
In New York there have been a number of efforts to address the problem of unrepresented litigants. Chief Judge of the State of New York Jonathan Lippman recently announced that new bar applicants would have to perform 50-hours of pro-bono service. Volunteer attorneys through the Access to Justice Program assist pro-se litigants in housing court. Such programs, however, are no substitute for representation by an experienced tenant attorney and in some cases can even be harmful for tenants. For instance, a settlement agreement reached with the help of an attorney is harder to undo that a settlement agreement reached by a litigant without an attorney.
Hopefully it will not take another 50-years before the right to effective legal representation is extended to civil matters, especially those involving such essential rights as housing.
Samuel Himmelstein
