Backdrop: THE ACcESS TO JUSTICE CRISIS
Every year, millions of low-income people throughout the United States struggle through serious, complex civil legal disputes without the help of a lawyer. Most low-income households find that private counsel is unaffordable and free legal aid is unavailable due to the high demand and legal aid programs' limited time and resources. More than 45 million individuals have incomes low enough to qualify federally funded legal aid, but equal access to justice is often hard to find.
The Legal Services Corporation (LSC)—the largest federal source of funding for free legal representation in civil cases—undertook a comprehensive study that documented the existence of this "justice gap". In a report recently updated in 2017, LSC found that:
- LSC-funded programs turn away nearly one million cases annually due to lack of resources; untold additional clients never find their way to the programs.
- Each year fewer than 20 percent of low-income people with civil legal problems obtain the legal assistance they need.
- Counting all (not just LSC) legal aid programs, the U.S. has one lawyer for every 6,415 low-income people but one lawyer for every 525 people in the general population.
Additionally, the National Center for State Courts found that three-quarters of all civil cases involve at least one unrepresented party? As The Lawyerist astutely observed, "This isn't a [justice] gap. It's a chasm."
In addition to these reports, many organizations have undertaken to analyze the justice gap in their particular state. Some examples include:
- Maine (2007 report of Justice Action Group): of those able to receive some help, 85% only received only brief service or consultation. At one state legal services provider, 83% of low-income individuals seeking assistance were turned away.
- New Jersey (2009 report by Legal Services of New Jersey): only 21.7% of low-income people seeking assistance obtained legal help.
- Washington (2003 report of Washington State Supreme Court's Task Force): low-income people in the state face 85% of their legal problems without an attorney.
- Wisconsin (2007 report of Access to Justice Committee) (80% of low-income people with legal need unable to obtain help).
- New York (2013 report of the Task Force to Expand Civil Legal Services in New York): at best, only 20% of low-income New Yorkers have access to legal assistance.
THE U.S. JUSTICE GAP Compared to OTHER COUNTRIES
Many countries have long-established civil legal aid programs that are adequately funded by the government and ensure ample coverage. In the U.S., where civil counsel is not guaranteed, funding for legal aid programs compares poorly to other industrialized nations. For instance, England spends twelve times as big a portion of its gross domestic product on civil legal aid as the U.S., where federal funding of legal services has declined by 50 percent over the last quarter century. Read more about this in our section on international perspective.
Civil Right to cOunsel: A Right Dating Back Six Hundred Years
As advocates seek recognition of a civil right to counsel, it is worth noting the extraordinarily ancient roots of the concept. Clause 40 of the Magna Carta guarantees that "[t]o none will we sell, to none deny or delay, right or justice." A Tudor statute, 11 Hen. 7, c. 12 (1494) established a right to counsel for indigent civil plaintiffs with meritorious causes of action, requiring a court to "assign to the same poor person or persons, Counsel learned by their discretions which shall give their Counsels nothing taking for the same …." The right later expanded to include civil defendants as well as plaintiffs.
Some state constitutions incorporated provisions of English common law that were not included in the U.S. Constitution. The Maryland Declaration of Rights is one of these, and the plaintiff in Frase v. Barnhart relied on this argument. For more detail on the historical perspective, see the appellant's brief in the Maryland Court of Appeals.
U.S. Supreme Court and the Civil Right to Counsel
In 1981 the Supreme Court held in Lassiter v. Department of Social Services that appointment of counsel would be on a "case by case" basis in cases involving termination of parental rights, even though it recognized parental rights are fundamental and that the risk of error without counsel would often be very high. Then, going even further, the Supreme Court created a presumption against appointing counsel in any kind of civil case in which "physical liberty" (like going to jail) is not at risk. This means that people losing their homes or life-sustaining medical benefits, women facing life-threatening domestic violence, and parents at risk of losing access to their children forever, are presumed to not have a right to counsel, even if their opponent in the litigation is the State or is represented by lawyers.
Thirty 30 years later, the Court ruled in 2011 in Turner v. Rogers that parents who fail to pay child support can be jailed (even for a year or longer) without being provided counsel, at least where the party pressing the child support case is neither the government nor represented by counsel. Although the opinion has been critiqued by numerous authors, it stands as the law of the land for the requirements of the U.S. Constitution. At the same time the Supreme Court adhered to a case-by-case approach to appointing counsel in criminal cases for two decades before abandoning it in Gideon v. Wainwright, so to some degree, the future of civil right to counsel before the Court is not yet known. The National Center on Access to Justice has a nice fact sheet on Turner v. Rogers.
If you were to ask the average person on the street, "Do you get a free lawyer if you can't afford one in a civil case", nearly everyone would say "yes" or "no". But the truth is somewhere in the middle: it depends on the kind of civil case, and which state you're in.
In short, all state legislatures have passed statutes requiring counsel in at least some civil cases, while state courts have recognized rights to counsel under their state constitutions for a number of civil areas, including termination of parental rights, abuse/neglect, paternity, civil commitment, civil contempt, and child custody proceedings. As a result, there is a patchwork of rights in place, but a lot of things are missing. For instance, no state provides a right to counsel for housing or public benefit cases, and only a few for cases inovlving domestic violence or child cusotdy.
Fortunately, there are a lot of different initiatives trying to expand these rights and/or test implementation strategies. As you can see on our interactive map, all states have adopted a right to counsel for at least some types of civil cases, and there is tremendous momentum towards expanding such rights.
Responding to Concerns
The NCCRC understands that there are some questions about civil right to counsel even within the legal services and broader communities, such as funding, implementation, continued autonomy of the existing legal services providers, and scope of new rights. To answer these questions, the NCCRC has authored an informational memo.
Additionally, notwithstanding these questions, there is broad support within the legal services community for a right to counsel for civil cases implicating basic human needs, and legal services programs have worked to establish the existing rights to counsel in civil cases.