State considers providing lawyers for high-stakes civil disputes

03/26/2014 12:00 AM

03/26/2014 8:01 AM

Susan Ferris went into Sacramento family court hoping to win custody of her 14-year-old daughter. She left without her girl and without most of her disability income.

The Sacramento Superior Court judge said his ruling was driven by his suspicion that Ferris helped her daughter run away from her father. But prominent San Francisco attorney James Brosnahan argues that the decision resulted from something else: not having a lawyer.

The California Administrative Office of the Courts estimates that more than 75 percent of family court cases have at least one party without legal representation. In California, parents have the right to counsel when they stand to lose their children for alleged neglect or abuse, but not in custody disputes. Brosnahan argues that custody cases such as Ferris’ have the same parental stakes and should come with similar protections.

The state since 2011 has tested the feasibility of extending legal representation to civil cases with a $9.5 million, eight-county pilot project. Lawyers such as Brosnahan are also pushing the Legislature and courts to find additional ways to provide attorneys for people fighting for basic needs.

Family courts are responsible for divorce, child support, restraining orders and other issues. Much of the work involves dividing up assets and child custody when parents break up. In the 2011-12 fiscal year, 6,100 marital cases were filed in Sacramento County and 161,000 statewide.

Fifty years ago, the U.S. Supreme Court affirmed the right of the poor to legal representation in criminal cases. The American Bar Association passed a resolution in 2006 in support of extending that right to civil cases, particularly matters involving evictions, government benefits and child custody.

“This is at the point where a lot of us think it’s a disgrace,” Brosnahan said. “You can’t take someone’s child and that person doesn’t have an attorney when you do it … It’s an outrage.”

People who represent themselves in civil court are generally less likely to prevail than those with attorneys, said Russell Engler, professor of law and director of clinical programs at the New England School of Law in Boston.

In a 2009 study, Engler examined the literature about self-representation in different courts, including those responsible for government benefits, housing and families. In a California study cited by Engler, 92 percent of cases in which both parents had attorneys resulted in joint custody. Cases in which only one parent had an attorney ended up with an award of joint custody 77 percent of the time, and the parent without an attorney was more likely to lose.

“The primary problem is that the family court system, like any court system, can be complex,” said Andrew Mitchell Cain, a San Jose lawyer who chairs a family law committee of the State Bar of California. “In order to be able to navigate the system, it takes experience and legal education.”

But San Francisco attorney Lawrence J. Siskind, a critic of the push to make attorneys a right in civil cases, said lawmakers and the legal profession have overstated the need. There may be a lot of parties without attorneys in civil court, but that doesn’t necessarily mean they need an attorney, he said.

Because they get far more requests for service than they can meet, legal aid societies have proved successful at determining which cases are truly deserving of an appointed attorney, he said. Decision-makers should rely more on those organizations and volunteers instead of hiring government attorneys, he said.

A mother represents herself

Susan Ferris described her courtroom proceedings as a nightmare she could barely understand. Court transcripts show that Ferris struggled to follow courtroom procedure and often had to be told by Judge Matthew Gary how to respond. The judge frequently had to remind her not to interrupt him.

Susan and David Ferris divorced in 1999 and essentially shared joint custody until 2011, when Susan and her daughter raised concerns about David’s temper, marijuana use and sharing a bed with his daughter, according to court records. David denied the allegations except for sharing a bed, which he said was necessary while he renovated his daughter’s bedroom.

For five consecutive days in December 2011, Gary ordered the parents into court and asked them where the girl was after she disappeared from her father’s home. Each day, they told him they could not locate her. Although Susan Ferris repeatedly insisted she did not know where her daughter was, Gary became convinced that she was responsible for her daughter’s disappearance, the transcript shows. The judge awarded David Ferris full custody.

Over Susan Ferris’ objections, Judge Gary allowed David Ferris to place their daughter in a Utah boarding school for troubled children. He ordered Susan Ferris to pay $920 in child support each month, in part to pay for some of the boarding school cost. That is most of the $1,200 monthly disability check she gets from the Social Security Administration, records show. The judge said he realized as much, but argued that the child should be her first responsibility.

Susan Ferris said she was forced to give up her apartment and live on a friend’s couch as a result of the judge’s decisions.

“If I had had an attorney,” she said, “none of this would have happened.”

Brosnahan said that she was hindered by having to serve as both attorney and witness in her custody fight. Her ability to represent herself was further weakened by her post-traumatic stress disorder, the result of a 2005 assault and a 2007 rock-climbing accident, according to court records.

The San Francisco attorney agreed to take up an appeal at no charge because he saw an opportunity to right what he considers a wrong: the judge deprived Ferris of due process by ending her parental rights without appointing her an attorney. In his appeal, Brosnahan argues that the family court should give Ferris an attorney for new custody hearings.

Brosnahan is perhaps best known for his defense of John Walker Lindh, the man from Marin County who joined the Taliban, and his prosecution of former Defense Secretary Caspar Weinberger in the Iran-Contra scandal. Brosnahan also founded the Justice & Diversity Center when he was president of the Bar Association of San Francisco more than 30 years ago.

Without an attorney to aid Susan Ferris, the Sacramento family court hearing became one-sided in her husband’s favor, Brosnahan said. For instance, Brosnahan said, no one asked follow-up questions about whether her husband’s brother or another relative might have been housing her daughter, even though David Ferris said it was a possibility.

Gary and David Ferris’ attorney declined to comment for this story. In his written response to Brosnahan’s appeal, David Ferris’ attorney argues that Susan Ferris’ lack of an attorney had no impact on the outcome of the case.

Practicing law without a degree

McGeorge School of Law professor John Myers sees a knowledge gap when he represents clients in family court and when he runs a monthly clinic providing basic assistance to people who can’t afford an attorney. He helps clinic participants fill out myriad required legal forms, knowing they will face an uphill battle if their spouses have attorneys, he said.

“They can’t get the job done,” he said. “It’s not a level playing field.”

In the decade he has practiced in Sacramento family court, attorney Neil Forester estimated that self-represented parties have won cases against his clients less than 10 percent of the time.

“When I go before a judge, I say ‘Here’s the law, and this is what we want,’ ” Forester said. “Someone who isn’t an attorney doesn’t understand what they’re entitled to because they don’t understand the law.”

Safeguards such as appellate courts help protect parents from wrongful decisions, he said. Judges also go to great lengths to guide unrepresented parties through the process, but they can go only so far before their legal assistance would become unfair to the other party, Forester said.

Jim Mize, the supervising judge in Sacramento family court, said cases without attorneys take significantly longer to resolve, but they still reach a just outcome. That’s because judges spend a lot of time asking questions to establish central facts, he said.

“Facts win cases, not attorneys,” said Mize. Nevertheless, he said he supports the idea of providing attorneys in family court to help ease case backlogs.

The Legislature in 2009 passed the Sargent Shriver Civil Counsel Act, named after the father of former California first lady Maria Shriver, who spearheaded a major effort to provide attorneys to the poor in the 1960s. The act funds pilot programs through 2017, with a $10 fee on certain court filings.

Since 2011, Sacramento, Yolo and six other counties have received a total of $9.5 million a year.

The Conference of the California Bar Association recently asked the California Judicial Council for a court rule allowing judges to appoint attorneys to the poor in civil cases involving “basic human needs or fundamental rights.” In its resolution, the group says the change would “have no real cost” as the need could be handled through volunteer legal work.

But in opposing the resolution, two bar associations in San Diego County said the proposal failed to identify the inevitable costs, a complaint often raised by critics of the push to make legal representation a right in civil cases. Volunteers would not be able to meet the need, they said.

The council has not acted on the resolution.

Statewide, Shriver Act programs serve an estimated 10,000 people a year and vary in their ability to meet the need, said Bonnie Hough of the California Administrative Office of the Courts. In San Diego County, nearly every applicant who meets income requirements receives an attorney for family court. In Los Angeles County, the family court program must consider additional criteria, such as mental illness and other barriers to self-representation. Act programs elsewhere are dedicated to specific needs, such as housing in Sacramento and Yolo counties.

“People representing themselves are at a severe disadvantage,” said Mairi S. McKeever, director of the Justice & Diversity Center, which provides attorneys in child custody cases in San Francisco. “Now, our clients feel like they’re being heard.”

The Administrative Office of Courts plans to complete a study on the programs in 2016.

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