The Sargent Shriver Civil Counsel Act
by Melissa V. King, Esq. and Brett Wright, Esq., Owens & Wright, Attorneys at Law

You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.
Most of us recognize this well-known admonition, but hopefully not from personal experience.  It must be given to any person being detained or being placed under arrest.   Although the right to counsel used to apply only in criminal matters, with the passage of the Sargent Shriver Civil Counsel Act (AB 590, Feuer), California has become the first state in the nation to recognize an individual’s right to attorney representation in civil legal matters.

What is the Act and What is its Goal?
This Act is designed to provide pro bono (read: free) legal counsel and related court services to low-income parties on critical legal issues affecting basic human needs including housing-related matters, domestic violence claims, and certain child custody actions.  Though there are many other types of cases that arguably address critical legal issues affecting basic human needs, for purposes of this article, the primary housing-related matters with which we are concerned involve unlawful detainer actions.
The Act’s stated purposes are to address what the legislature determines to be substantial inequities in uniform access to justice in civil cases, and avoid the undue risk of erroneous court decisions resulting from the nature and complexity of the law in specific proceedings or disparities between the parties in legal representation, education, sophistication, language proficiency, and/or lack of access to self-help and alternative dispute resolution (ADR).

How is the Act Being Implemented?
With the Act’s entire purpose in mind, the Judicial Counsel’s Administrative Office of the Courts approved implementation and funding for seven statewide pilot projects earmarking $9.5 million in grants to local courts and seven qualified lead legal services non-profit corporations (the lead agencies).   These local courts and designated lead agencies will partner in developing and implementing their local programs.
Of these seven initial pilot projects, five projects are tasked to deal with housing-related matters.  Presently, local county courts are either partnered, or planning to partner, with certain lead agencies in the counties of San Diego, Bakersfield, Santa Barbara, Sacramento & Yolo (collectively), and Los Angeles.  These lead agencies will develop procedures and practices to ensure that those parties unable to afford legal representation have meaningful access to the courts, have their cases heard on the merits, and do not unintentionally give up their legal rights.
In San Diego County, the designated lead agency is the Legal Aid Society of San Diego, Inc. (LASSD).  It will partner with the Central Division of the San Diego County Superior Court in developing the program.   To deal with its increased case load, LASSD has hired new staff attorneys and assigned seven attorneys to assist in housing-related cases (primarily unlawful detainer cases) in the Central Division of the Superior Court.  When lawsuits are filed, the court will refer the cases to LASSD to be assessed for qualification.

Who is Eligible For Free Legal Representation?
LASSD is responsible for determining which parties qualify for free legal representation.  LASSD is anticipating handling 85% of the eviction cases in San Diego.  Our research indicates there is no judicial scrutiny as to who qualifies for representation.  However, for a family of four, the qualifying figure is currently $44,700 or less in annual household income.
In addition to this income means testing, LASSD may also consider other factors in assessing qualification, including, but not limited to, the nature or severity of consequences if the party remains unrepresented, the probability of success on the merits, the merits of the case, case complexity, and the presence of literacy or disability issues.

What Does This Really Mean for Landlords?
With the increased incidence of represented parties, landlords can expect a much tougher time in dealing with undesirable tenants.  Even in seemingly simple and routine cases, litigation could be prolonged and very expensive.
Because the need for free legal services is expected to outpace the program’s available funding, it is predicted that the program will not be able to provide all eligible low-income parties with attorneys.  As a result, the program will need to draw on additional revenue sources for the pilot projects to continue beyond their initial funding period.  (Currently, the projects are authorized through June 30, 2014, and project grants cannot be renewed for a period of three years.)
To make matters worse, there are case law decisions allowing entities like LASSD and other pro bono legal service providers to obtain an award of reasonable attorney fees if their client is the prevailing party in litigation where there is a contract provision providing for same to the successful party.  This is the case even when the litigant has paid nothing at all for legal representation.
Consequently, in pairing the program’s increased need for additional funding sources with the lead agency’s potential to generate large attorney fee awards, it is easy to see how landlords can and should expect zealous defenses and prolonged litigation with costs being run up through increases in discovery requests, pre-trial motions, pre-trial appearances, and requests for jury trials.  This is especially true in cases where there is a higher probability of defense success on the merits.
Although the full impact of this legislation on landlords’ interests is yet to be seen, it is reasonable to conclude that it does not bode well because of the potential for lengthier and more expensive cases.  Therefore, many attorneys are recommending that landlords exclude the awarding of attorney’s fees and costs to either side in any action or proceeding brought on the rental agreement.  You should immediately consult your attorney to discuss how the above may affect you and how any changes you wish to make to your rental agreement should be implemented.

Brett Wright is a partner in Owens & Wright, Attorneys at Law, a San Diego-based legal firm representing the interests of landlords in all facets of landlord/tenant law. Mr. Wright enjoys over 24 years’ experience and places special emphasis on mobilehome and recreational vehicle park tenancies.  He can be reached at (619) 487-9592 or through Owens & Wright’s web portal at www.sdevict.com.
Melissa King is associated with Owens & Wright, Attorneys at Law, in the Landlords Small Claims Legal Center.  Ms. King assists San Diego landlords in the preparation, defense, and appeal of small claims matters.  She can be reached at (619)795-8549 or via email at mking@lsclc.com.

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