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Right to counsel in civil cases gets a boost from the governor

Governor Schwarzenegger has signed into law the nation’s first “Civil Gideon” statute, which provides a lawyer to people who cannot afford one in civil cases related to critical basic human needs.

The pilot project, AB590 by Assemblyman Mike Feuer, D-Los Angeles, expands to some civil cases the right to counsel that is already granted in criminal cases, as spelled out in the 1963 U.S. Supreme Court decision, Gideon v. Wainwright. The law, which creates a six-year pilot project that takes effect July 2011 and is paid for with court fees, is called the Sargent Shriver Civil Counsel Act, after Schwarzenegger’s father-in-law, who helped build the nation’s legal services programs in the 1960s.

“I think this legislation is exceptionally important,” said Feuer, who had firsthand experience with the legal needs of the poor as executive director of Bet Tzedek legal services in Los Angeles. “If you steal a box of Twinkies from a 7-11 and you’re arrested, you’re entitled to a lawyer. If your house is about to be taken away or you’re in a custody dispute over your child or in a domestic violence dispute, you’re not entitled to a lawyer. There’s something very wrong with that. It’s completely antithetical to who we are as a nation.”

Feuer emphasized that the legislation is a pilot program and will be limited in scope, but “it’s a significant first step … It’s testing the efficacy of a civil Gideon model.”

The measure calls for free legal help for the poor “in civil matters involving critical issues affecting basic human needs.” Cases may include housing-related matters, domestic violence and civil harassment restraining orders, probate conservatorships, guardianships, elder abuse and actions by a parent to obtain sole legal or physical custody of a child. The law states that proposals to provide counsel in child custody cases should be given high priority for funding because of the high number of unrepresented people in family law matters. Funds for the $11 million-a-year pilot project will come from a $10 allocation of existing court fees.

The new law “is a major advancement in the effort to achieve equal justice for all,” said Debra Gardner, legal director of the Public Justice Center in Baltimore, Md., who said it is the first legislation of its kind in the country. “It represents a recognition of the public policy importance of providing a right to counsel in civil matters involving basic human needs.”

More than 4.3 million Californians are believed to be unrepresented in court proceedings, primarily because they can’t afford an attorney. Current funding allows legal services programs to assist less than one-third of California’s poor and lower income residents, according to the legislation. “Many judicial leaders acknowledge that the disparity in outcomes is so great that indigent parties who lack representation regularly lose cases that they would win if they had counsel,” the legislation states.

State Bar President Howard Miller has noted that people without professional legal representation, including the many who try to represent themselves, overburden the courts and increase costs. “Without a lawyer, there is no law,” he said.

The legislation also addresses the problem of fraudulent legal aid activities by restricting the use of the term “legal aid” to legitimate, nonprofit organizations that deliver legal services without charge to the client.

The governor also signed these bills:

  • SB 510 by Sen. Ellen Corbett, D-San Leandro, which provides guidelines to courts when they are deciding whether a settlement buyout is appropriate. The legislation is designed to prevent abuses in settlement buyouts. Critics have argued that some businesses take advantage of people who receive structured annuity buyouts by offering a lump sum payment that comes without the protections and worth of a structured annuity buyout.
  • AB 91 (Feuer) creates a pilot program in four counties that requires individuals convicted of a drunk-driving offense to install an ignition interlock device in their car that prevents the car from starting if  the driver’s blood alcohol content registers .08 or above.
  • SB 39 by Sen. John Benoit, R- Bermuda Dunes, indemnifies registered Disaster Service Volunteers performing emergency care from liability of civil damages.
  • AB 532 by Assemblymember Ted Lieu, D-El Segundo, expands, in specified cases, authorization to issue search warrants for people who have been detained or apprehended for examination of mental condition or in connection with a domestic violence incident involving a threat to human life or physical assault.
  • AB 750 by Assembly Speaker Karen Bass, D-Los Angeles, provides superior courts the ability to operate deferred entry of judgment re-entry programs in lieu of jail time for low-level, non-violent offenders. The year-long program requires participation in workforce training, educational training and drug counseling.
  • SB 748 by Sen. Mark Leno, D-San Francisco, is designed to protect people in witness relocation programs from being identified on the Internet. People who post information on the Internet that pinpoints the whereabouts of witnesses and their families could be guilty of a misdemeanor if the posting was intended to cause harm. Greater fines and jail time would be required if witnesses were injured as a result of the information being on the Internet.
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