Legal Profession Commons^™

Civil Vs. Criminal Legal Aid, Shaun Ossei-Owusu

All Faculty Scholarship

The past few decades have highlighted the insidious effects of poverty, particularly for poor people who lack access to legal representation. Accordingly, there have been longstanding calls for “Civil Gideon,” which refers to a right to counsel in civil cases that would address issues tied to housing, public benefits, family issues, and various areas of law that poor people are often disadvantaged by due to their lack of attorneys. This civil right to counsel would complement the analogous criminal right that has been constitutionalized. Notwithstanding the persuasive arguments made for and against Civil Gideon, it is less clear …

What Gideon Did, Sara Mayeux

All Faculty Scholarship

Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideon did—the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from …

The Prioritization Of Criminal Over Civil Counsel And The Discounted Danger Of Private Power, Kathryn A. Sabbeth

Florida State University Law Review

This Article seeks to make two contributions to the literature on the role of counsel. First, it brings together civil Gideon research and recent studies of collateral consequences. Like criminal convictions, civil judgments result in far-reaching collateral consequences, and these should be included in any evaluation of the private interests that civil lawyers protect. Second, this Article argues that the prioritization of criminal defense counsel over civil counsel reflects a mistaken view of lawyers’ primary role as a shield against government power. Lawyers also serve a vital role in checking the power of private actors. As private actors increasingly take …

Gideon And The Effective Assistance Of Counsel: The Rhetoric And The Reality, David Rudovsky

All Faculty Scholarship

There is general agreement that the “promise” of Gideon has been systematically denied to large numbers of criminal defendants. In some cases, no counsel is provided; in many others, excessive caseloads and lack of resources prevent appointed counsel from providing effective assistance. Public defenders are forced to violate their ethical obligations by excessive case assignments that make it impossible for them to practice law in accordance with professional standards, to say nothing of Sixth Amendment commands. This worsening situation is caused by the failure of governmental bodies to properly fund indigent defense services and by the refusal of courts to …

Shrinking Gideon And Expanding Alternatives To Lawyers, Stephanos Bibas

All Faculty Scholarship

This essay, written as part of a symposium at Washington and Lee Law School entitled Gideon at 50: Reassessing the Right to Counsel, argues that the standard academic dream of expanding the right to counsel to all criminal and major civil cases has proven to be an unattainable mirage. We have been spreading resources too thin, in the process slighting the core cases such as capital and other serious felonies that are the most complex and need the most time and money. Moreover, our legal system is overengineered, making the law too complex and legal services too expensive for …

The Illusory Right To Counsel, Eve Brensike Primus

Articles

Imagine a woman wrongly accused of murdering her fianc6. She is arrested and charged with first-degree murder. If convicted, she faces a mandatory sentence of life without the possibility of parole. Her family scrapes together enough money to hire two attorneys to represent her at trial. There is no physical evidence connecting her to the murder, but the prosecution builds its case on circumstantial inferences. Her trial attorneys admit that they were so cocky and confident that she would be acquitted that they did not bother to investigate her case or file a single pre-trial motion. Rather, they waived the …

The Breath Of The Unfee'd Lawyer: Statutory Fee Limitations And Ineffective Assistance Of Counsel In Capital Litigation, Albert L. Vreeland Ii

Michigan Law Review

This Note argues that fee limitations deprive indigent defendants of their right to effective assistance of counsel. Part I of this Note reviews state court decisions that address Sixth Amendment challenges to fee limitations, yet fail to address the broader concerns about the appointed counsel system. Part II considers the inherent disincentives and burdens fee limitations impose on attorneys and suggests that the limits threaten the indigent accused's right to effective assistance of counsel. A comparison of the fee limitations and the time required to prepare and try a capital case reveals the gross inadequacy of statutory fee provisions. In …

Court-Appointed Attorneys: Old Problems And New Solutions, H. Patrick Furman

Publications

No abstract provided.

The Right To Counsel Under Attack, David Rudovsky

All Faculty Scholarship

No abstract provided.