Commission on courts debates right to lawyers in civil cases

CONCORD, N.H. --A panel investigating how to make the state courts more user-friendly will recommend that the state fully fund existing legal services for low-income people.

The New Hampshire Citizens Commission on the State Courts also is considering whether to recommend that the state be required to provide lawyers for people in civil cases who face a "significant loss -- such as the custody of a child or the loss of a home."

The commission met Monday to take preliminary votes on 34 recommendations, ranging from improving and increasing alternative dispute resolution, such as mediation, in all courts to fully funding drug and alcohol treatment so nonviolent offenders can be sentenced to treatment instead of jail.

Some recommendations were approved, a few were rejected and about half were scheduled for further debate and amendment next week. The commission expects to present a final report to the state Supreme Court in May.

John Tobin, director of New Hampshire Legal Services, which represents low-income people in civil cases, said court leaders in other states are advocating a "civil Gideon" -- the right to a lawyer in civil cases similar to that enjoyed by criminal defendants faced with jail time. The U.S. Supreme Court case establishing that right was Gideon v. Wainwright.

New Hampshire's court leaders also should fight for such a right because it is central to addressing one of the biggest problems facing the state courts -- the increasing number of people who represent themselves because they cannot afford lawyers, Tobin said.

In two-thirds of divorce and other family court cases, one or both people represent themselves, according to state court statistics. The same is true in 85 percent of civil cases in the District Courts, such as small claims and landlord-tenant disputes.

People without lawyers "do an inadequate job of representing themselves; justice is compromised; and litigants are deprived of their full rights," a subcommittee said in support of the recommendation to fully fund legal services for poor people.

Paul Clements, an advocate for fathers' rights, said that when he was getting a divorce in Massachusetts two decades ago, he was threatened with 30 days in jail for civil contempt of court. He was entitled to a lawyer to fight the contempt, and won, he said. But he was not entitled to a lawyer to help him fight for custody of his daughter, which he lost.

"The loss of a child is one of the most devastating losses a parent can suffer, whether the child is lost through death or through a divorce court," he said.

Bruce Felmly, a Manchester lawyer, said he was worried the rest of commission's recommendations would be weakened by such a "wish list" item. He said the issue deserves months of study and concrete recommendations about who would be entitled to civil legal services, who would provide them and how they would be funded.

"As far as I know, no other state in the country has gone this far," he said.

Some other proposed recommendations that spurred debate included several intended to improve "customer service" and make the courts more efficient. Some commission members questioned whether justice would be compromised in the name of efficiency.

"I've heard from judges concerned about their ability to decide a case in six minutes," said Cathy Green, a lawyer.

Attorney General Kelly Ayotte and former state Sen. Andrew Peterson said they were concerned that proposed recommendations to expand alternative sentencing and the use of "therapeutic courts," such as drug courts and mental health courts, did not acknowledge the rights of victims or the need to protect public safety.

Ayotte objected to a proposed recommendation that the state, which is considering building a new secure prison, spend the money instead on a substance abuse program, including a residential treatment facility. While she supports more substance abuse treatment, she said it's not clear that would eliminate the need for a new prison.

"In my view, that goes a little too far," Ayotte said.

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On the Net:

Commission, with links to draft recommendations: http://www.nhcitcourts.org/

Civil Gideon: http://www.brennancenter.org/programs/pov/civil--gideon.html

Gideon v. Wainwright: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?courtus&;vol372&invol335