Deborah's trumpet

October 12, 2003|By C. Fraser Smith

STRUGGLING TO retain custody of her 3-year-old son, Michael, Deborah Frase became her own lawyer in January 2002.

With the formidable energy of a desperate mother, she held onto her son -- for the moment. The court imposed conditions that seem inappropriately intrusive and worse. She might still lose custody of the child if the conditions are violated. Circumstances that might have produced a more favorable outcome were not introduced by Ms. Frase, who did not know how to introduce them.

But she's appealing before the highest court in Maryland. This time she has formidable representation. And her name might go into the annals of jurisprudence if her case turns out to be the fulcrum for change in the way justice is afforded the poor throughout the land of the free.

Her lawyer is Stephen H. Sachs, former U.S. attorney, former attorney general of Maryland and of counsel to one of the nation's most prominent law firms, Wilmer, Cutler & Pickering in Washington. He told the Court of Appeals' nine justices that Ms. Frase had been the unarmed victim of "drive-by custody seekers."

Maryland's thin fabric of legal services for the poor could not support one more case, she was told as her case was going to trial. This state has done an admirable job of providing lawyers for people who can't afford them, but the supply rises and falls with budget or political pressures. The results call into question the American system's promise of access to justice for all.

Mr. Sachs prepared Ms. Frase's appeal without fee in conjunction with the Public Justice Center and its Appellate Advocacy Project. Several other groups, including the University of Baltimore Family Law Clinic, the Women's Law Center and the Maryland Legal Services Corp., filed friend-of-the-court briefs in the case. From no representation at all, Ms. Frase suddenly commanded the attention of powerful individuals and groups.

Her case, Mr. Sachs told the justices Tuesday, represents a "perfect storm" of circumstances for change.

It is likely that many believe every litigant in this country has access to state-supplied legal help now. This misimpression is due to the long-standing efforts of groups in Maryland and to the publicity surrounding the drive for guaranteed counsel in criminal matters. That right was secured 40 years ago in the case Gideon vs. Wainwright. In Gideon's Trumpet, a book about the case, the story of how these rights were restored received wide circulation. But no "civil Gideon" has followed, for a variety of reasons. The vehicle could be Frase vs. Barnhart, the case Mr. Sachs argued Tuesday.

The potential injury to citizens serving in court as their own lawyers, he said, is "incalculable."

"There are thousands and thousands of poor people in Maryland and millions across the country with tremendously important civil issues: the custody of a child, access to housing, health care," Mr. Sachs said.

To deny them lawyers is to deny them justice, he said.

Many agree, but not all.

George Liebmann, a well-respected lawyer in Baltimore, says the pursuit of a ruling that would result in a "civil Gideon" are wrong-headed and possibly would be a fictional enterprise.

Inevitably, Mr. Liebmann said, the courts will offer a system that continues to ration legal assistance by laying out who can qualify for state-supported assistance and under what circumstances.

Even if it could work, it would be the wrong approach, he said. "No society can afford to automatically provide lawyers for anyone who wants or thinks he needs a lawyer. ... I don't think most people would say that is preferable to the situation we have now," he said.

Mr. Sachs disagreed: "To say that an unrepresented person has access to the courts ... without a lawyer is like saying, as someone wrote, that in ancient Rome, Christians had access to the Coliseum."

But Mr. Liebmann contends that the drive to reform the justice system has been wrong-headed since the 1960s, when young lawyers established the national Legal Services Corp. in the Office of Economic Opportunity.

This drive, he says, was staffed with people with "no experience of life" who rushed about like "knights errant crusading on behalf of the supposed interests of the poor."

A better approach, he said, would be the one in England, where lay boards decide which cases merit court action. Often, Mr. Liebmann said, lay people with expertise in eviction law, for example, can be at least as good in court as lawyers.

Mr. Liebmann and others also raise the issue of cost: $15 million per year in Maryland, according to one estimate. It's not a big number in a wealthy state like this one -- particularly when the issues are child custody, eviction and the like.

"If it's a matter of justice," Mr. Sachs said, "we must afford it."

C. Fraser Smith is news director for WYPR-FM. His column appears Sundays.

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