Civil RTC Concept and History
A Right Dating Back Six Hundred Years
The right to counsel in civil matters has extraordinarily ancient roots.
- Clause 40 of the Magna Carta guarantees that “[t]o none will we sell, to none deny or delay, right or justice.”
- 11 Hen. 7, c. 12 (1494), a Tudor statute, established a right to counsel for indigent civil plaintiffs with meritorious causes of action. The statute required 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 in the United States incorporated provisions of English common law that were not included in the U.S. Constitution. In Frase v. Barnhart, 379 Md. 100 (Md. 2003), a notable case arguing to establish a civil right to counsel in Maryland, the plaintiff argued that “Article 5 of the Maryland Declaration of Rights guarantees to Maryland’s inhabitants the rights provided by the body of English statutory and common law as it existed on July 4, 1776,” and that one such right “that crossed the Atlantic with the colonists was the guarantee of free counsel for indigent litigants, expressed in the Tudor statute 11 Hen. 7, c. 12 and its common law equivalents.”
Additional Resources
The appellant’s brief (starting on pg. 27) in Frase v. Barnhart, 379 Md. 100 (Md. 2003) expertly outlines the historical origins of the civil right to counsel.
Taking the English Right to Counsel Seriously in American ‘Civil Gideon’ Litigation.
Scott F. Llewellyn and Brian Hawkins, 45 U. Mich. J.L. Reform 635 (2012).
The Right to Counsel: English and American Precedents.
Felix Rackow, 11 Wm. & Mary Q. 3 (1954), available with free jstor account.
A Right in Criminal Cases, But Not Civil Ones
“In the criminal context, a defendant facing the risk of incarceration is, at the very least, entitled to an attorney as a constitutional right. There is, however, no such corresponding right in the vast majority of civil cases. Yet, civil cases deal with many matters that we hold perhaps just as dear as our own personal freedom, including custody of our children, our physical safety, our ability to work, and our need for shelter.” – Honorable Anna Blackburne-Rigsby, Associate Judge, District of Columbia Court of Appeals
There is little logic to distinguishing between criminal and civil cases when it comes to the right to counsel:
- The label given to a case does not necessarily relate to its seriousness. In a civil case, people can go to jail and lose their housing, physical safety, and life-sustaining medical benefits.
- Civil litigants have just as difficult a time representing themselves as criminal defendants.
- There are ways in which the indigent defense crisis worsens the civil justice gap and vice versa.
- Public defenders in many states handle representation in civil cases where there is a right to counsel.
However, the U.S. Supreme Court does abide by the civil-criminal distinction. In 1963, the Supreme Court established a constitutional right to counsel in criminal cases in Gideon v. Wainwright, 372 US 335 (1963). However, when it comes to civil matters, even those with severe consequences, such as the permanent severance of a parent-child relationship, the Supreme Court has not accepted the argument that the Federal Constitution mandates a right to counsel.
Additional Resources
The NCCRC has a fact sheet discussing the relationship between criminal and civil cases.
The ABA Model Access Act is a guide for states considering the adoption of new rights to counsel that address some of the issues in the indigent defense system.
Our comprehensive bibliography (non-subject specific, Civil and Criminal Right to Counsel Compared) includes additional writings comparing civil and criminal rights to counsel. We have also compiled writings analyzing Lassiter, and those analyzing Turner v. Rogers.
In Lassiter v. Department of Social Services, 452 U.S. 18 (1981), the seminal Supreme Court case on the right to counsel in civil cases, a mother challenged the failure of the trial court to appoint counsel in a termination of parental rights case. The Supreme Court held that the decision to appoint counsel should be made on a “case by case” basis. This is despite the court recognizing parental rights as fundamental and that the risk of error without counsel would often be very high. The Court also created a presumption against appointing counsel in any civil case in which a person’s “physical liberty” is not at risk. The presumption means that people losing their homes or life-sustaining medical benefits, facing life-threatening domestic violence, or risking the loss of access to their children forever, are presumed not to have a right to counsel. The presumption doesn’t change if the opponent is represented by counsel or is the State.
Thirty years later, in Turner v. Rogers, 564 U.S. 431 (2011), the Supreme Court held 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.
What do Lassiter and Turner mean for trying to establish a civil right to counsel under the Federal Constitution? Litigation to establish a right to counsel in civil matters under the federal constitution is not a viable strategy for the time being. ABA Resolution 112A explores this history and helps to explain why advocacy to establish a right to counsel in civil cases is happening at the state and local levels and intermittently by case type. Both opinions have been analyzed and critiqued, but they stand as the law of the land. It isn’t all bad! 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, 372 US 335 (1963). Check out “A Right to Counsel in Civil Cases: Lessons from Gideon v. Wainwright,” by Laura Abel, which explores this pre-Gideon history and discusses how this connects to civil right to counsel advocacy. Taking this into account, the future of the civil right to counsel before the Supreme Court is not yet known.
Why we don’t call it Civil Gideon
As you grow more familiar with the civil right to counsel, you might see it referred to as “civil Gideon.” The NCCRC uses the phrase “civil right to counsel” to highlight that we are advancing a “narrower” right (one based on basic human needs) than that established in Gideon v. Wainwright. We also prefer “civil right to counsel” to signify that we’re aware of, learning from, and aiming not to replicate the issues with the indigent legal defense system.
Civil Right to Counsel Advocacy Today
Because of this Supreme Court history, civil right to counsel advocacy today happens at the state and local levels. Today, we see a patchwork of rights in place.
- All state legislatures have passed statutes requiring counsel in at least one type of civil case.
- State courts have recognized rights to counsel under their state constitutions for several civil areas, including termination of parental rights, abuse/neglect, paternity, civil commitment, civil contempt, and child custody proceedings.
But there is so much more work to do! For instance, though there is a thriving tenant right to counsel movement, whether a tenant has a right to counsel largely depends on whether they live in one of the few states or cities that have such a right. Additionally, there is still no right to counsel in public benefit cases, and only a few for cases involving domestic violence or child custody.
