Many of the divorce and paternity cases I handle involve a pro-se adverse party who frequently has plenty of experience with the criminal court system.
After those experiences, the adverse party often requests that the court appoint them a lawyer – after all, they’ve had one appointed before in the same courts. After such a request comes a difficult explanation that Wisconsin does not appoint an attorney for civil cases,1 and then the dawning realization at some point after that free or low-cost attorneys are few and far between.
Civil
Gideon
The idea of civil right to counsel – court-appointed attorneys for civil cases – is commonly known as “civil
Gideon” in reference to
Gideon v. Wainwright, a 1963 U.S. Supreme Court case.2
Amanda R.R. Mayer, Marquette 2012, is the legal projects director at
Wisconsin Judicare in Wausau, where she works with victims of domestic abuse and sexual assault and supervises the Family Law Unit, Elder Rights Project, and Victims’ Rights Project.
The
Gideon decision established the scope of the constitutional right to counsel for criminal defendants if they could not afford legal counsel. The implementation of
Gideon was left to the individual states. In Wisconsin, it led to the Office of the State Public Defender as a statewide agency to represent indigent defendants.
Civil Representation In Wisconsin
To date, however, there is no federal case of similar outcome for civil cases. Some states have adopted Civil
Gideon, but Wisconsin is not one of them.
Civil
Gideon comes to the forefront of public discourse and the courts every so often, but so far has not been adopted. In 2012, the Wisconsin Supreme Court denied a rules petition to create a right to publicly funded counsel for indigent litigants, defined as those under 200% of the Federal Poverty Limit. The Court stated an intention to work with various stakeholders to meet the needs of indigent people in need of legal help.
In the decade since, the challenge of accessing an attorney for indigent individuals involved in Wisconsin courts has arguably worsened,3 especially for those in rural counties.4
Wisconsin Resources for Representation – and Call to Action
As concerning as the availability of attorneys is, Wisconsin does have some resources for those in need of legal advice, although much of it is for brief answers rather than extensive, ongoing representation. A comprehensive list of free legal resources is available through the
Wisconsin State Law Library.
Many of these programs utilize volunteer attorneys – so attorneys statewide can make a difference in the lives of Wisconsinites.
Volunteering with programs such as Judicare Legal Aid or Legal Action of Wisconsin gives attorneys a chance to assist indigent litigants with support from the organizations in a wide variety of civil legal cases.
Guidance on pro bono work in Wisconsin and opportunities to volunteer are available on the
Pro Bono webpage and the
Pro Bono Portal on State Bar of Wisconsin’s website.
This article was originally published on the State Bar of Wisconsin’s
Public Interest Law Section Blog. Visit the State Bar
sections or the
Public Interest Law Section webpages to learn more about the benefits of section membership.
Endnotes
1 Specifically in paternity proceedings, there is a right to an attorney at the establishment phase of a proceeding, but that is an extremely limited appointment and does not apply to matters of custody, placement, child support, or broader family law cases.
See Wis. Stat. section 767.83.
2
Gideon v. Wainwright, 372 US 335 (1963).
3 In fact, access to an attorney even when
Gideon does apply has proved a challenge for Wisconsin citizens. A
class action lawsuit was filed in 2022 alleges a backlog of approximately 35,000 pending criminal cases waiting for appointment of counsel.
See
Antrell Thomas et al v. Anthony S. Evers et al., Brown County Circuit Court case 2022CV1027.
4
See “State Bar Board Adopts Plan to Address Rural Lawyer Shortage, Acts on Remote Depositions,”
WisBar News, Sept. 24, 2021.
