Letter to the Editor for Bench & Bar Section Council Newsletter

I read with great interest the well-researched and well-written article in the February 2026 Newsletter, Volume 56, No. 3, starting at page 1, titled: “No Access to Justice,” by Judge James A. Shapiro and Mr. James J. Herdegen, a second-year law student at the University of Illinois in Champaign. Their article advocates the position that the holding in Gideon v. Wainwright, 372 U.S. 335, 344 (1963), applied there to criminal cases, should be expanded to civil cases so that minors, the subject of custody disputes, would be afforded free legal representation as the Gideon case provided for juveniles in criminal cases.

I agree with their proposition that if children in criminal proceedings should have the right to legal counsel, why shouldn’t children in custody cases be afforded counsel as well, where in both circumstances the children’s future is in the balance for determination. Where parties in a divorce proceeding contesting custody are wealthy, the court can easily appoint an attorney for the child or children and impose the costs on one or both of the parties. When the parties are not wealthy, and, in fact, may be impoverished, the appointment of counsel by the court will result in a need for resources. If we undertake this noble cause, why limit the benefits to only criminal and now to custody and related matters?

Thousands of people are brought into the court system for foreclosure proceedings, and dire consequences face them, including the prospect of becoming homeless. Many of these people are decent people who were injured or became ill and could not maintain their jobs and sources of income to pay their mortgages. Perhaps some worked many years for a company that now downsized and terminated their services. Others may have had tragedy in their immediate families requiring their resources be directed away from their mortgage payments. Why not provide representation for these people?

Certain other people are summoned to court in eviction proceedings due to circumstances where their resources were diverted from paying rent to paying doctors, hospitals, or funeral bills and they too could benefit from free legal counsel. Perhaps we should include the person terminated from employment who has no resources to contest the sometimes-wrongful action; and, then, especially when they too will face eviction or foreclosure.

I can recall cases I heard as a judge or presided over since in arbitration or mediation in my current practice where good people suffered harm and then faced harsh legal remedies. Perhaps a lawyer’s appointment would have avoided or eased their misfortune. Sometimes legal aid or legal assistance agencies or bar association pro bono programs provided resources, but that help was not always available. Due to many employment engagement agreements persons are required to sign to obtain employment, they may not go to court but must contest their termination in arbitration. Shouldn’t they also be afforded counsel in arbitration as well as in court? Where is the limit to reasonableness and to the resources?

Many lawyers are themselves struggling to feed their own families and don’t have the resources to help clients without fees. Access to justice is a continuing problem where creative minds must find a way to help not just children in custody matters, but others in circumstances just as threatening. Judge Shapiro and Mr. Herdegen expose the underbelly of harm facing not just one segment of our society but, on reflection, how many others suffer each day as well even if they are not the child pawns in a custody case. Too many in our society ask only what can be given to them and not how they can help others. Some only want to cut taxes and cut services and ignore the poor and their suffering. An answer must be found. The authors’ article raises many questions. I have here articulated a few more questions.

I look back to a time before Gideon was decided in 1963 (as I was finishing college and beginning my law school education). We took for granted a system that was unfair until we saw a new path on the horizon for legal institutions to help more people. Many core rights were established in that period of time, affording new rights for citizens and responsibilities for public officials. The Bench and Bar Section Council has been in the forefront of movers to provide better access for justice to more, if not all. Since I joined the section council in 1975 as a coeditor for the newsletter until today (with only a few years off), I have been involved with the Bench and Bar Section Council. It had been known as the Judicial Administration Section Council but the mission stayed the same. May the dialogue continue with beneficial changes springing forth. If judges like James Shapiro actively work for change to better the lives of people and some say show themselves as activist, I say activity in support of justice shall have no limitations. Let the dialogue continue.