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VOL. 129 | NO. 75 | Thursday, April 17, 2014

ABA President Silkenat Shares Notion Of ‘Civil Gideon’

By Bill Dries

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The president of the American Bar Association sees at least a discussion on the way about a “civil Gideon” – a requirement that a citizen who cannot afford an attorney in a civil court proceeding should have one appointed by the court.

It would mirror the requirement of an appointed attorney for criminal defendants guaranteed by the 1963 landmark U.S. Supreme Court “Gideon” case.


“Look at how long it took us to recognize Gideon on the criminal side,” James Silkenat said after a speech Tuesday, April 15, at the Memphis Rotary Club. “This next step will be a difficult one. But I am encouraged the more I see how much lawyers and other leaders of society recognize the problem for everyday citizens just living their lives without legal advice on the most important legal issues – they are left at sea.”

Among the questions posed by a civil Gideon requirement is how to fund it with what would amount to public defenders in civil cases as well as a panel of private attorneys to pick from and pay through a civil court.

It’s one of several issues Silkenat mentioned, including access to justice, repeating the phrase “liberty and justice for all” in the Pledge of Allegiance that the crowd of 100 at the Rotary Club said just before he spoke.

“Essentially this phrase holds that justice as an inalienable right should never be determined by how much money you make, who we are or who we know,” he told the group. “And yet our nation is failing miserably at the moment to fulfill this promise of justice for all.”

Silkenat, a partner in the New York office of the Sullivan & Worcester law firm, pointed to a dearth of jobs for law school graduates paired with a greater need for increased access to legal help.

“The need for legal services for poor Americans has never been greater,” he said.

The need, he believes, will inevitably change the practice of law.

“Law is changing anyway, whether we intend it or not. … Getting the legal system to focus on how lawyers are needed in different kind of jobs, not just anti-trust or tax law at the top,” Silkenat said later. “But providing advice to community groups on their everyday legal issues – that’s a rewarding career. That’s a way you can help shape your community and I’m hoping that’s what we will move toward.”

The same recession that has prompted the need for more legal services for the poor has also had an impact on law schools – a change that was overdue, Silkenat said.

“I think they had been slow to change up until four or five years ago,” he said. “A crisis in the economy really has led many institutions, including law schools, to see how they can adapt better, see how they can provide a legal education to students at a lower cost that’s more effective that has them begin legal practice ready when they graduate.”

He pointed to programs that allow law school students to begin working on real life legal problems and cases while in law school and law schools forming legal clinics or working with established clinics outside the law school’s formal framework.

Before speaking to the Rotary, Silkenat also toured Memphis Area Legal Services, which has been a key part of the local and state bar association efforts to improve access to justice.

Silkenat said the pursuit of billable hours may remain to some extent, but that law school students seeking a different lifestyle might mean they aren’t quite as central to an attorney’s existence as they are now.

“Law firms are even more focused on financial returns than in the past. So having associates work long hours and be very productive – that may not change,” he said. “On the other hand, students coming out of college and law schools, some of them are looking for a more diverse way to live their lives – greater involvement with family – greater involvement in the community. It’s going to be a constant tension. I actually think you are a better lawyer if you are engaged in more than just billable issues. … That lets you understand people better. That lets you understand fact situations better.”

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