COMPETITIVE BALANCE

Listen to this article

If a criminal defendant cannot afford an attorney, one is provided by the court.

Indigent parties in civil cases have no such opportunity. Legal Action of Wisconsin executive director John F. Ebbott hopes to change that.

Ebbott filed a petition Sept. 30 with the Wisconsin Supreme Court that asks the court to establish a Right to Counsel in civil cases. If approved, it could help level an uneven playing field.

Pro se litigants, especially in complex cases, are often at a disadvantage in court, Ebbott said. For example, a self-represented person in a heated child custody battle against a former spouse with multiple attorneys is hardly “equal justice.”

“I’ve seen, over the years, pro se litigants get hammered all the time,” Ebbott said. “When an attorney steps in for an unrepresented person, the case changes a great deal.”

The petition asks the court to amend Supreme Court Rule 11.02 and establish criteria for court-appointed counsel at public expense for indigent litigants, defined as having an income below 200 percent of the federal poverty guidelines.

Counsel would be appointed to “protect the litigant’s rights to basic human needs, including sustenance, shelter, clothing, heat, medical care, safety and child custody and placement.”

In deciding whether an attorney should be appointed, the court can take into account the personal characteristics of the litigant, such as age, mental capacity, education, knowledge of the law and complexity of the case.

While the Constitution mandates legal representation in criminal cases, there is no such provision for civil litigation.

Milwaukee County Circuit Court Judge Timothy G. Dugan, the presiding judge in the Civil Division, said judges do not have the authority to appoint civil counsel at public expense, except in limited circumstances such as a guardian ad litem.

While he conceded that having everyone represented by attorneys in court is preferable from an efficiency standpoint, Dugan suggested that the request could be a tough sell, especially on the financial side.

“It’s a decision for the legislature to make and I don’t know if the court will step into it or not,” he said.

One option is to pay for appointments out of the Court Support Services Surcharge, said Ebbott.

He said that as recently as 2007-08, the surcharge generated more than $50 million for the state, but less than half was reinvested into court operations, which is its purpose. The remainder of the money was allocated to other state projects.

Another element which needs to be examined is how the appointment process would work.

Ebbott said it might involve a combination of private bar appointments as well as representation from legal service providers like Legal Action and Legal Aid.

“In more rural counties, I might expect there to be private bar attorneys appointed by the court,” he said. “But perhaps in Milwaukee or Madison, it might be a contract with a legal service provider.”

He estimated that compensation would be in the “$50 to $70” an hour range, which is comparable to the rate for appointments by counties in criminal cases.

But there are potential roadblocks. Many private bar attorneys would likely not be willing appointees, given the potentially low compensation and the time required.

“I don’t know whether a lot of lawyers would be looking to get appointed for these types of cases even if there is funding for it,” said attorney J. Michael End, President-elect of the Wisconsin Association for Justice.

He said depending on the complexity and broadness of cases, attorneys may be reluctant to devote “200 hours of time doing battle.”

End said that once an attorney learns criminal law, representation of a client is pretty straightforward, but civil cases depend on the type of case. In his experience handling medical malpractice cases, End said on occasion an individual files a case pro se and appointment of counsel might be warranted.

But he added that for some of those cases, the attorney would do a lot of work learning the medicine involved and consulting with an expert in the field to discuss the merits, which could deter some attorneys from taking such an appointment.

Ebbott said he doesn’t expect a “stampede” of attorneys for the appointments and if there is a lack of interest amongst the private bar, he expects that legal service providers would handle the cases.

One possibility is that complex cases involving elements that legal service providers specialize in such as poverty or Title 19 would be directly appointed to those attorneys, whereas a landlord-tenant case where it’s simply a matter of whether notice was properly given would be handled by a private attorney.

“If it’s a large case with complex factors, it might be something that is done as a partnership with a large firm and a legal service provider,” Ebbott said. “It’s not defined at this point.”

Jack Zemlicka can be reached at [email protected].