The right to counsel in criminal and Civil cases

 

Because of the oft-repeated "you have a right to a lawyer" messages in television and movies, many people would be surprised to learn that this right, which was established in a case called Gideon v. Wainwright, is largely limited to criminal cases. Yet as some public defenders have written, there is little logic to distinguishing between criminal and civil cases: the label put on a case does not necessarily relate to how serious it is (for example, people can go to jail in a civil case, and also can lose their housing, physical safety, and life-sustaining medical benefits), and civil litigants have just as difficult a time representing themselves as criminal defendants. And there are ways in which the indigent defense crisis worsens the civil justice gap, and vice versa.  Plus public defenders in many states handle any civil case representation that is provided by right.  

 

There is no question that the civil right to counsel community has much to learn from the way that Gideon has been implemented. But we can learn from the mistakes of the past and avoid creating a system with the same flaws as our current indigent defense system. Indeed, this was one of the reasons that the American Bar Association passed the ABA Model Access Act, a guide to states considering adoption of new rights to counsel that addresses some of the indigent defense system issues.

 

In 2013, as the nation celebrated the 50th anniversary of Gideon, the NCCRC coordinated over 30 conversations across the country about how the right to counsel in civil cases is connected to Gideon.

 

To learn more:

 

  • Download a NCCRC flyer showing the relationship between criminal and civil cases;
  • Check out our comprehensive bibliography section on the subject.
  • Watch a video of a Fordham Law School panel, Where the Civil and Criminal Justice Systems Meet:  Next Steps in the Access to Justice Revolution, featuring chief justices from New York, New Jersey, Texas, and Florida and facilitated by the National Center on Access to Justice.

 

"CIVIL GIDEON" Versus "CIVIL RIGHT TO COUNSEL"

 

Although the right to counsel movement used the term "civil gideon" for some time (with the first usage coming from an article by U.S. Federal District Judge Robert A. Sweet calling for such a right), the movement in recent years has adopted the term "civil right to counsel" instead.  This is for a number of reasons:

 

 
  • The fact that the scope of the right to counsel sought (only for basic human needs civil cases, as outlined in the 2006 ABA Resolution) is narrower than that established by Gideon for criminal cases;
 
  • The fact that advocates are willing to consider a delivery model that includes limited scope representation for a discrete set of cases, as outlined in the ABA Model Access Act.