About Civil Right to Counsel

The right to counsel is a critical safeguard in the civil legal system, particularly for people involved in complex basic human needs cases such as those involving shelter, child welfare and custody, sustenance, safety, or the ability to remain in the United States.

A fraught U.S. Supreme Court history with the civil right to counsel, means that the work advancing civil RTC happens incrementally – issue by issue, city by city, state by state. As a result, whether a person has the right to counsel in a particular civil case still largely depends on the state and the type of case.

Without a right to counsel, if a person does not have the disposable income to afford private counsel, legal representation options in civil cases—even incredibly severe cases—are deeply constrained. Pro-bono programs are helpful, but limited and depend on the volunteerism of attorneys in the area.

As the Legal Services Corporation (LSC) reported in 2022, 53.6 million individuals have incomes low enough to qualify for federally funded legal aid. However, of the 1.9 million civil legal issues brought to LSC-funded programs, 1 in 2 must be turned away due to a lack of resources. In fact, to be fully represented by a legal aid provider, most people seeking free legal help have incredible hurdles to surpass:

• Eligibility requirements (income, immigration status, residency, case types);
• Provider prioritization standards, discretion, and/or merits-based determination; and,
• Provider accessibility, availability, capacity, and available resources.

It’s no surprise that millions of litigants navigate complex civil cases each year on their own. In its 2015 Landscape of Civil Litigation of State Courts report, the National Center for State Courts explored representation rates for civil plaintiffs and defendants. The survey looked at 152 courts in 10 counties around the country between 2012 and 2013. Of the approximately 900,000 cases surveyed, “at least one party was self-represented (usually the defendant) in more than three-quarters of the cases.” If you’re interested in exploring this data further visit Richard Zorza’s Access To Justice Blog.

Navigating a civil case unrepresented or “representing oneself” can be especially precarious when the end result is a court order imposing insurmountable debt, severing the ability to remain in one’s home, or restricting access to one’s children. And the consequences of losing these critical cases can be compounded by long-lasting problems: issues with employment and schooling, negative impacts on mental and physical health, and reliance on publicly financed but deeply under-resourced medical care, shelter, and benefits systems. In addition, there is solid evidence indicating that families of color, families headed by women, children, and the elderly are disproportionately suffering these consequences.

A right to counsel is a game-changer for our civil justice system. An ever-growing body of research underscores the societal benefits of civil legal representation, not just for individual litigants but also for their “opponents” and the courts. The NCCRC has compiled representation impact studies and reports in our comprehensive bibliography (organized primarily by subject area).