What is a "Right to counsel"?
In the most basic terms, a right to counsel is a government commitment, established in the law and publicly funded, that ensures that all eligible people are provided a lawyer when facing the loss of their basic human needs.
- There must be an enactment in the law or constitutional ruling.
- The law must make it clear that it provides people with a guarantee or right, even if it does not use those actual terms.
- The law does not contain any subjective eligibility criteria, such as a merits test, although attorneys are still bound by the rules of ethics with respect to avoiding the pursuit of frivolous claims. Where the creation or implementation of a right involves an incremental approach, the law may contain objective eligibility criteria such as income or subsidized tenant status. An enacted right to counsel with eligibility limits is still a right to counsel and can be an effective incremental approach toward an unrestricted right to counsel. We support such an approach where advocates deem it necessary.
- A pilot or funding program where representation is increased (even to the level where all eligible litigants are served) is not a right to counsel, but can be an effective step toward a right to counsel.
- While private philanthropic dollars can serve as a temporary bridge, the right to counsel ultimately must be government funded. Moreover, such funding must be robust and sufficient to ensure attorneys can provide high-quality legal representation.
- The law must provide for full representation (or not specify something less than full representation), meaning the attorneys are expected to do all that is necessary to achieve the best result (as opposed to taking a triage approach), and a true lawyer-client relationship is formed.