Touzeau v. Deffinbaugh

Dissenting Opinion by

BELL, C.J.,

which CATHELL, and GREENE, JJ., join.

The issue in the case sub judice is whether the trial judge abused his discretion when he denied the appellant Tara M. Touzeau’s motion for continuance of a custody modification hearing in order to secure pro bono counsel. The majority concludes that the trial judge did not abuse his discretion in denying Ms. Touzeau’s motion; however, I believe that the trial judge erred, and thus abused his discretion, as did the Court of Special Appeals, by not considering pro bono counsel’s affidavit, and, further, by not taking into account the totality of Ms. Touzeau’s situation, a situation in which there existed the danger of a substantial, fundamental right being lost — Ms. Touzeau’s custodial rights of her daughter, Victoria.

A.

Maryland Rule 2-508 provides in pertinent part:

“(a) Generally. On motion of any party or on its own initiative, the court may continue a trial or other proceeding as justice may require.” (Emphasis added).

To be sure, this Court has held that the determination as to whether a continuance should be granted lies within the *679discretion of the trial judge, and, absent an abuse of that discretion, the decision should not be disturbed. See, e.g., Greenstein v. Meister, 279 Md. 275, 294, 368 A.2d 451, 462 (1977); Butkus v. McClendon, 259 Md. 170, 173, 269 A.2d 427, 428 (1970). The trial judge, thus, plays a very important role in our judicial system, as he or she has the opportunity to view the proceedings first hand and the responsibility of overseeing them. It is for this reason, as the majority points out correctly, the trial judge is given great deference with regard to the many discretionary matters that may arise at the trial level. Touzeau v. Deffinbaugh, 394 Md. 654, 669, 907 A.2d 807, 816 (2006). It is never this Court’s intention to usurp the role of the trial judge as such a usurpation would serve the purpose of undermining the trial judge’s authority, and, in turn, his or her effectiveness. This Court does, however, have the authority, indeed, the obligation, to review, on appeal, the exercise of discretion by the trial court to determine whether, in that exercise, it acted arbitrarily or prejudicially.

On the date of the subject hearing, Ms. Touzeau presented the trial court with an affidavit from her attorney, Mr. Cullen. Mr. Cullen had agreed to represent Ms. Touzeau, pro bono, in the custody modification hearing concerning her daughter; however, due to a scheduling conflict, Mr. Cullen was not able to appear on that date. When Ms. Touzeau indicated to the trial judge that she had an affidavit from Mr. Cullen, the trial judge refused to even look at the affidavit stating, “I don’t need that.” The majority accepts the trial judge’s complete altogether disregard of the affidavit stating that “the affidavit [did] not add anything to what Ms. Touzeau orally presented at the hearing to modify custody.” Id. at 672 n. 6, 907 A.2d at 817 n. 6. The majority, further, relying on this Court’s ruling in King v. Mayor and Council of Rockville, 249 Md. 243, 246, 238 A.2d 898, 900 (1968) (finding that the trial court did not err in denying a request for continuance because such a request must reflect that the basis for the delay will be obviated within a brief period of time), maintains that “neither Ms. Touzeau, nor her proffered affidavit, proposed when her *680pro bono counsel would be available.” Id. at 672, 907 A.2d at 817-18.

In addition to being significantly flawed, the majority’s rationale for excusing the court’s refusal to consider counsel’s affidavit is, to me, even more unsettling. The best that can be said for the rationale is that it is informed, perhaps, by hindsight, and, from that perspective, the affidavit may be dismissed as having no independent significance. It must be said that when presented, the trial judge did not know, nor could he have known without looking at it, what was being offered in the affidavit. The question that concerns the majority so greatly, when Mr. Cullen would have been available for the hearing, id., very well could have been answered in the affidavit itself, but the trial judge would never have known since he refused to even accept, much less to consider, it. In addition, the trial judge could have easily ascertained, by inquiry, when pro bono counsel would have been available. He could have asked Ms. Touzeau if she had discussed with counsel when counsel would be available, or he could have telephoned counsel to determine when, not if, since counsel had agreed already to represent Ms. Touzeau, counsel would have been available for trial.

The failure to even look at the affidavit was, I submit, a total abdication of the trial judge’s responsibility, not only to the parties in this matter, but to the overall system of justice in which he serves such an important, critical role. Thus, rather than simply abuse his discretion, I believe the trial judge, in effect, refused, but certainly failed, to exercise any discretion. I can not understand how there ever can be a proper exercise of discretion when a threshold piece of information is rejected, before it is even seen, not to mention considered. It must also be stressed that Mr. Cullen did not simply communicate his commitment in a letter, he chose to do so by affidavit.

If, as the majority holds, id. at 677, 907 A.2d at 821, the trial judge exercised discretion, it was abused. The matter before the trial court certainly was important enough to require that *681information bearing on the question of whether “justice may be served” by the continuance be considered seriously, rather than simply ignored.

The majority, in arriving at its holding, also accepts the trial court’s analysis that Ms. Touzeau waited until the last minute to look for counsel, and, thus, that she did not “[act] with due diligence to mitigate the consequences of not being represented by counsel at the hearing to modify custody.” Id. I do not agree. Ms. Touzeau found herself in a situation in which, unfortunately, too many litigants in our court system find themselves today. What happened to her was not the result of an unwillingness on her part to secure counsel, but, instead, was the result of her financial situation. Ms. Touzeau made it very clear at trial that she could not afford an attorney and that she tried to secure counsel even before being presented with the results of the Report of Custody/Visitation Evaluation on January 21, 2005. Ms. Touzeau tried to secure representation from the Legal Aid Bureau as well as the Pro Bono Resource Center. Her attempts did not yield favorable results. This, to me, is not at all surprising since many of the agencies offering this type of aid to litigants are generally overworked and understaffed. The Legal Aid Bureau would only consider representing Ms. Touzeau if she were granted a continuance. This response to Ms. Touzeau was more than likely the result of the Legal Aid Bureau trying to save time and resources; however, its inability to represent Ms. Touzeau at the modification hearing was a great detriment to her and left her without legal representation.

Ms. Touzeau was not simply looking to retain an attorney; she was looking for pro bono representation, which, as the record indicates, is not always easy to find. Ms. Touzeau was fortunate enough to find pro bono representation, albeit only five days before the scheduled modification hearing. It is my opinion that, like the trial court, the majority is too preoccupied with the timing of Ms. Touzeau’s retention of counsel and not nearly concerned enough about the adverse consequences that potentially awaited her were she not to have counsel.

*682The majority asserts that Ms. Touzeau was not entitled to a continuance merely because her attorney had a scheduling conflict. The majority cites to the “Revised Administrative Order For Continuances For Conflicting Case Assignments or Legislative Duties” (“Administrative Order”) as support of its affirmance of the trial court.1 Although the majority correctly cites to the Administrative Order, I would assert that the rules themselves are not to be applied so rigidly as to negate a consideration of the equities and the context of the case. I believe, moreover, that the trial court’s hard and fast, perhaps more appropriately, mechanical, application of the Administrative Order is counterproductive to, and indeed, is inconsistent with, courts’ purported goal of assurance of fairness, a goal with which this Court certainly and ultimately should be concerned.

The majority also seems to agree with the trial court’s use of expedition as the main reason for denying Ms. Touzeau’s motion for a continuance. The majority opined that “[t]he present case is differentiated primarily because it was expedited as a consequence of the immediate impact that Victoria’s relocation had on her relationship with Mr. Deffinbaugh ...” Id. at 675, 907 A.2d at 819. The trial court, however, in an effort to settle the matter quickly, did not make the proper decision. Although the trial court was correct in taking into account the urgency of the situation, it is my opinion that this urgency supported a different conclusion. The gravity of the *683situation did not warrant a speedy trial as much as it did a fair and thorough one.

As Judge Hollander so poignantly put it, in dissent, “[t]he court’s calendar was not more important than the parties’ fundamental parental rights or the child’s best interest.” She continues, ‘[t]he child’s best interest, which is at the heart of this case, is served best when the parents are on equal footing, so that the custody fight is fought fairly and the court has before it all relevant information. That is not likely to happen when one parent is unrepresented.” I agree with Judge Hollander. Like her, I believe the trial court should have weighed the importance of the issue — the right to be lost— against the amount of time to be lost by granting a postponement. That this was the first request for a postponement, and by no means at all an unreasonable one, should have received considerable weight.

I do not disagree with the majority’s argument that Ms. Touzeau may not have been surprised, or, as the majority puts it, that she “failed to demonstrate that she experienced an unforeseen circumstance ... that she reasonably could not have anticipated.” Id. at 678, 907 A.2d at 821. I also do not find that observation to be particularly pertinent, and certainly not dispositive. It is true that Ms. Touzeau should have, at the least, because of the nature of the proceedings themselves, anticipated an adverse report by the court-appointed evaluator. To acknowledge that this is so is not to say that her efforts to obtain counsel were unreasonable. I do not ascribe the responsibility for her counsel situation to Ms. Touzeau’s dilatoriness or failure to appreciate the possibility that an adverse recommendation could be the result of custody/modification analysis the court ordered. In short, I do not agree with the majority’s contention that merely because “[s]he had prior experience with unfavorable custody/visitation evaluation results,” id. at 675, 907 A.2d at 820, that she “dearly was cognizant of the significance of the custody/visitation evaluation,” id. and, thus, of her need for counsel. I believe that Ms. Touzeau was diligent in her search for counsel and that she acted appropriately, given her circumstances. The trial court, *684again, should have looked at the totality of her situation before denying her motion for a continuance. And this Court should permit no less.

It is my contention that a grave disservice was done in allowing Ms. Touzeau to represent herself, particularly since she was neither prepared, nor equipped, to do so. The trial court seems, as does the majority, to have given weight to the appellee’s argument that Ms. Touzeau had enough education and pro se “expertise” in the legal field to allow her to represent herself. To the extent that this is true, such reasoning is significantly flawed. To be sure, this Court sets the requirements for admission to the Bar. At minimum a law degree is required. We have never, nor should we, equated a college degree and some pro se experience to an adequate level of experience needed to defend oneself in a matter before this Court, never mind a trial court, much less a matter of such significance and complexity as in the case sub judice. It was clearly a stretch, particularly when Mr. Deffinbaugh was represented by able and experienced counsel, and, as the record indicates, Ms. Touzeau could not effectively examine or cross-examine her witnesses, properly introduce evidence, and make all pertinent arguments.

B.

The majority’s unwillingness to consider and take into account the seriousness of Ms. Touzeau’s circumstances is, I repeat, disturbing to me. It also highlights another point, whose importance is understated and underappreciated. It has its roots in public policy. Ms. Touzeau made the effort to secure pro bono counsel, and she was successful. We have been, as a Court, concerned with increasing representation available for indigent litigants, and we have made substantial efforts to increase the level and amount of pro bono representation the legal profession provides.2 Our efforts culminated, *685years ago, in the adoption of a rule pertaining to pro bono service, providing a goal toward which attorneys should work. See Md. Rule Prof. Conduct 6.1.3 More recently, we have *686amended our rules to provide for mandatory reporting and set up an infrastructure to keep track of the hours provided and to encourage and facilitate greater pro bono participation and hours. See Md. Rules 16-901 to -903. Given all of our efforts and our continued attempts to secure more pro bono representation for those who cannot afford to retain their own attorney, we ought to be sensitive to, and encouraging of, those who join our effort or take the goal seriously. We should, more important, be concerned with the message being sent to both attorneys who are willing to provide such a service (like Mr. Cullen in the case sub judice) and to our citizens who are unable to pay for representation. When we rigidly and mechanically apply the rules, rather than encouraging the rendering of pro bono services, we discourage it. We have done more than simply ask lawyers to volunteer and then give us the approximate number of hours spent on pro bono service; we have required them to report to us and have given them target hours to achieve. Indeed, we have, in Rule 6.1, emphasized the importance of representational legal services. See Rule 6.1(b)(1). If our thrust with regard to pro bono service is to mean anything, especially representational services, we cannot in any way discourage attorneys from offering such aid to those who so desperately need it, nor would we want to send the message to those who work hard to secure such representation that their efforts are in vain. That is what we do with respect to lawyer and litigant under the circumstances sub judice. It would be unreasonable for us to expect that Mr. Cullen would have put Ms. Touzeau’s interest in front of those of one of his “paying” clients. The fact that he was *687willing to help Ms. Touzeau should have been given some level of attention. At the least, his affidavit should have been accepted and considered seriously by the court.

*685"A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.’’

*687The majority maintains that “[w]ere we to adopt Mrs. [sic] Touzeau’s duality, we would be elevating the rights of litigants who utilize pro bono counsel over the rights of litigants who retain counsel, thereby creating two distinct classes of litigants in our courts.” Id. at 677-78, 907 A.2d at 821. I am not persuaded. Instead, I contend that the kind of representation rendered is a factor, even if not, in all cases, a dispositive factor, that should be taken into account when the court, in considering the totality of the circumstances, decides whether a continuance is warranted. That factor takes on greater significance, I submit, when a poor litigant has secured counsel, but, unfortunately, pro bono counsel’s schedule is not exactly compatible with the trial court’s trial or hearing schedule. The standard would not be heightened in any way and would still be the same in that “justice would require” additional time in such a circumstance. By taking into account the kind of representation being rendered, this Court would not frustrate or undermine its pro bono service efforts and, at the same time, further and encourage a goal that has always been, and continues to be, of paramount importance — access to justice for all.

C.

In addition to the implications that the ruling in this case may have pertaining to pro bono representation, there is another issue that I feel cannot be overlooked. In denying Ms. Touzeau a continuance, the trial court, in effect, denied her representation of counsel. Her motion was heard at the commencement of the modification hearing, thus an adverse ruling left her with no choice but to represent herself. It is important that the majority, as well as the trial courts, understand the consequences of their decisions. We would not be faced with the case sub judice if Civil Gideon, a right to representation in certain civil cases implicating fundamental rights — basic human needs, was a reality in our legal system. *688Ms. Touzeau would have been entitled to counsel as a matter of right and would not have had to scrounge to find pro bono representation. Unless the notion of Civil Gideon is adopted, Ms. Touzeau’s situation is one that this Court will see again and again. As Judge Cathell so succinctly declared in his concurrence in Frase v. Barnhart, 379 Md. 100, 140, 840 A.2d 114, 138 (2003), “this issue will not go away.”

There is a lot to be said for Judge Cathell’s concurrence in Frase. His candor was very refreshing and reflected the importance of the issue from a societal perspective and the zeal with which it is espoused by its advocates. He was correct in his assertion that “[t]he answers being sought in this Court, whatever the answers may be, cannot be found anywhere else ... we should no longer leave them, and this issue, in limbo.” Id. at 134, 840 A.2d at 134. What happened to Ms. Touzeau in this case is a travesty and sad commentary on an aspect of our legal system. Would that there were these safeguards in place, she, and her rights, would have been better protected.

The discussion surrounding the notion of Civil Gideon is one that is gaining more and more momentum. There are many who believe that indigents need protection when fundamental rights, other than those involving incarceration, are being threatened. Recently the ABA has made the following recommendation:

“[T]he American Bar Association urges federal, state, and territorial governments to provide legal 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 as determined by each jurisdiction.” [4]

*689The ABA defines child custody as “embracing] proceedings where the custody of a child is determined or the termination of parental rights is threatened.”

The ABA could not be more correct in its position, and as a member of the task force that made the above recommendation, I fully support its sentiment. Ms. Touzeau is entitled to counsel, and she should have been allowed a continuance so as to be able to benefit from counsel’s services. Parenting is at the heart of our culture and is a right that must be protected at all costs. As the record indicates, Ms. Touzeau was unable to perform the pertinent tasks required in order to defend herself adequately against the competent counsel of Mr. Deffinbaugh and because of this lost custody of her daughter. Ms. Touzeau has had custody of her daughter from birth. She deserved to be able to fight for her daughter on equal footing with Mr. Deffinbaugh, and, by denying her continuance request, the trial court denied her that right. Ms. Touzeau’s circumstance clearly underscores the need for legal assistance in the civil arena as a matter of right.

Judge CATHELL and Judge GREENE have authorized me to state that they join in this dissenting opinion.

. The pertinent part of the Administrative Order upon which the Court of Special Appeals relied in finding that the trial judge did not err in denying Ms. Touzeau's motion is:

2. RESPONSIBILITIES OF COUNSEL
b. If counsel accepts employment in a case in which a date or time for argument, hearing, or trial has already been set after counsel has been notified of a conflicting assignment for the same date or time, counsel should not expect to be granted a continuance.
Although the Administrative Order does not distinguish between pro bono counsel and retained counsel, I think that that is something that the majority, as well as the trial court, should have considered. See my discussion of the differences of counsel, infra at p. 684, 907 A.2d at pp. 824-825.

. Maryland has a strong policy of encouraging attorneys to provide pro bono representation to indigent litigants, as a public service and as a professional responsibility. The Preamble to our Rules of Professional *685Responsibility, see Maryland Rule 16-812, recognizes a lawyer’s responsibilities in this regard. It provides, in pertinent part:

. Rule 6.1 was initially adopted April 15, 1986, effective Jan. 1, 1987. As adopted, it provided:

"A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, or by financial support for organizations that provide legal services to persons of limited means.”

It was amended April 9, 2002, effective July 1, 2002. That amendment did not change the aspirational goal; instead, it added the minimum number of hours that every full- or part-time lawyer should aspire to complete and that the failure to complete the hours is not grounds for disciplinary action. Neither did the latest amendment substantively change the Rule’s goal. In its current iteration. Rule 6.1 provides:

“(a) Professional Responsibility. A lawyer has a professional responsibility to render pro bono publico legal service.
"(b) Discharge of Professional Responsibility. A lawyer in the full-time practice of law should aspire to render at least 50 hours per year of pro bono publico legal service, and a lawyer in part-time practice should aspire to render at least a pro rata number of hours.
"(1) Unless a lawyer is prohibited by law from rendering the legal services described below, a substantial portion of the applicable hours should be devoted to rendering legal service, without fee or expectation of fee, or at a substantially reduced fee, to:
"(A) people of limited means;
"(B) charitable, religious, civic, community, governmental, or educational organizations in matters designed primarily to address the needs of people of limited means;
"(C) individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights; or
"(D) charitable, religious, civic, community, governmental, or educational organizations in matters in furtherance of their organizational purposes when the payment of the standard legal fees would *686significantly deplete the organization’s economic resources or would otherwise be inappropriate.
"(2) The remainder of the applicable hours may be devoted to activities for improving the law, the legal system, or the legal profession.
"(3) A lawyer also may discharge the professional responsibility set forth in this Rule by contributing financial support to organizations that provide legal services to persons of limited means.
“(c) Effect of Noncompliance. This Rule is aspirational, not mandatory. Noncompliance with this Rule shall not be grounds for disciplinary action or other sanctions.”

. This recommendation is found in the ABA House of Delegates Report that was adopted on August 7, 2006. The unanimously approved document is part of the ABA’s effort to ensure equal justice for all in the United States, an effort that has a long history dating back to the 1920's. In its amicus brief, at pages 3-4, in Lassiter v. Dept. of Social *689Services of Durham County, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), the ABA demonstrated its support of the notion of Civil Gideon by stating that “in order to minimize [the risk of error] and to ensure a fair hearing, procedural due process demands that counsel be made available to parents, and that if the parents are indigent, it be at public expense.” The ABA further noted that “skilled counsel is needed to execute the basic advocacy functions: to delineate the issues, investigate and conduct discovery, present factual contentions in an orderly manner, cross-examine witnesses, make objections and preserve a record for appeal ... pro se litigants cannot adequately perform any of these tasks.”