PHILADELPHIA BAR ASSOCIATION RESOLUTION SUPPORTING AMERICAN BAR ASSOCIATION RESOLUTION 114

WHEREAS, the Philadelphia Bar Association has long supported a right to counsel for low- income individuals in cases involving basic human needs;

WHEREAS, in May 2006, the Philadelphia Bar Association adopted a Resolution to Cosponsor the Report and Recommendations of the American Bar Association’s Presidential Task Force on Access to Justice in Civil Cases;

WHEREAS, the May 2006 Resolution recited a portion of the underlying Report of the ABA Presidential Task Force on Access to Justice in Civil Cases (“ABA Task Force”), including its recommendation that the ABA House of Delegates adopt a resolution to be presented at the August 2006 annual meeting of the House of Delegates stating in relevant part:

RESOLVED: That the American Bar Association urges state, territorial and federal jurisdictions to provide counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody;

WHEREAS, in an August 2006 resolution, the American Bar Association House of Delegates adopted the report and recommendations of the ABA Task Force, as supported and co-sponsored by the Philadelphia Bar Association (“August 2006 ABA Resolution”);

WHEREAS, even prior to its 2006 resolution, the ABA had long advocated for a right to counsel for indigent parties and expanded access to justice, as exemplified by its amicus brief filed in Lassiter v. Dept. of Social Services of Durham County, 425 U.S. 18 (1981) (“Lassiter”), urging the U.S. Supreme Court to require the appointment of counsel for indigent parents in civil proceedings that could terminate their parental rights, and its amicus brief championing the right to meaningful access to the courts for the disabled in Tennessee v. Lane, 421 U.S. 509 (2004), on behalf of a litigant who could not physically access the courthouse, stating in part that “the right to equal and effective access to the courts is a core aspect of constitutional guarantees and is essential to ensuring the proper administration of justice”;

WHEREAS, at its mid-year meeting on February 5, 2018, the ABA acted to address a perceived gap in its existing policy on the right to counsel in civil cases by adopting Resolution 114, a right-to-counsel measure intended to ensure that counsel will be provided as a matter of right to low income persons in all proceedings that may result in a loss of physical liberty;

WHEREAS, the ABA had assumed it was unnecessary to include loss of physical liberty at the time it adopted the 2006 resolution because of the Lassiter decision, and therefore did not include loss of liberty in the basic needs enumerated in that resolution;

WHEREAS, after the decision in Turner v. Rogers, 564 U.S. 431 (2011), in which the Supreme Court declined to find a right to counsel in civil contempt proceedings for non-support even when an individual faced incarceration as a result, the ABA determined that the threatened loss of liberty, whether in civil or criminal proceedings, needs to be explicit, and new Resolution 114 addresses that and more broadly seeks to assure that, whether civil or criminal, loss of liberty requires appointment of counsel for indigent litigants;

WHEREAS, the Philadelphia Bar Association concurs with the ABA statement of policy set forth in Resolution 114 that no one too poor to hire a lawyer should face the risk of incarceration without the assistance of counsel, regardless of whether the proceeding is criminal or civil in nature;

WHEREAS, the Philadelphia Bar Association has continued to support its commitment to a right to counsel for low income individuals in cases involving basic human needs through the ongoing work of the Chancellor’s Task Force on Civil Gideon and Access to Justice, and the ongoing efforts of numerous Sections and Committees of the Association;

NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association hereby supports American Bar Association Resolution 114, calling for appointment of counsel as a matter of right to low income persons in all proceedings that may result in the loss of physical liberty;

AND BE IT FURTHER RESOLVED that the Chancellor or any designees of the Chancellor be authorized to communicate the Philadelphia Bar Association’s position as set forth herein, and to take other actions authorized by the Chancellor to effectuate the position of the Philadelphia Bar Association, as set forth herein.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: July 19, 2018