Should a low-income parent faced with losing custody of her children have a right to a lawyer at public expense when the other side has been able to afford to hire a lawyer? Should an elderly homeowner with cognitive disabilities be guaranteed a lawyer when the municipal government tries to seize his home?
In 1963, in the celebrated case Gideon v. Wainwright, the Supreme Court said that individuals charged with serious crimes had a right to counsel. The Court later expanded the right to people facing loss of liberty through a criminal or quasi-criminal proceeding, including juveniles charged with delinquency offenses and people charged with misdemeanors. (For history of the right to counsel in criminal proceedings, see this site).
But the Supreme Court has refused to recognize an equivalent right in civil cases, even when a home is threatened or a child is taken away, the complexity of the proceedings guarantees an unfair result, and the other side has counsel.
In 1981, the Supreme Court held in Lassiter v. Department of Social Services that while courts could appoint counsel on a “case by case” basis in cases involving termination of parental rights, there is no categorical right to counsel under the federal constitution when parents are in danger of having their parental rights terminated. Then, going further, the Supreme Court created a presumption against appointing counsel in any kind of civil case in which physical liberty is not at risk.
Some states do provide counsel for low-income people in particular kinds of cases. Click here for an article on existing state statutes providing a right to counsel. But the result is a patchwork system, in which the right to counsel varies enormously from state to state. Moreover, to date these statutes only cover the areas of child custody and involuntary commitment.
Legal representation can make the difference between keeping or losing a home, obtaining protection from domestic violence or risking injury, having sufficient food or going hungry, or even keeping a family together.
The ultimate consequences extend beyond these immediate effects, interfering with school and employment, breeding psychological problems, and imposing substantial costs on publicly financed medical care, shelter and benefits systems. Families of color, families headed by women, children and the elderly suffer these consequences disproportionately.
Most low-income individuals facing serious civil legal problems in America cannot secure legal representation. Private counsel is simply unaffordable.
Legal aid programs are chronically understaffed and can meet only a small percentage of the need. And while pro bono services from the private bar have grown in recent decades, they cannot begin to fill the void.
This lack of representation furthers inequality and injustice. But now a movement to attain a right to counsel in civil cases has begun in the form of the National Coalition for the Civil Right to Counsel, a growing organization dedicated to securing the right.