Frequently Asked Questions
On this page, we’ve collected questions we often hear about the civil right to counsel. If you have a question that isn’t addressed here, let us know.
As you read the FAQs, please note the following: There is a difference between increasing funding to support and expand existing legal aid structures and the right to counsel.
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 are additional parameters that the NCCRC uses to distinguish between programs that increase funding for legal representation and genuine rights to counsel:
Law. There must be an enactment in the law or constitutional ruling establishing the right to counsel.
No subjective eligibility criteria. The law does not contain any subjective eligibility criteria, such as a merits test, although attorneys are still bound by ethics rules concerning 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.
Guarantee. The law must clearly state that it provides people with a guarantee or right, even if it does not use those actual terms.
Government funding. A right to counsel must ultimately be government-funded, even if private philanthropic dollars can initially serve as a temporary bridge. Such funding must also be robust and sufficient to ensure attorneys can provide high-quality legal representation.
Full representation. The law must provide for full representation (or not specify something less). This means that attorneys are expected to do everything necessary to achieve the best result (as opposed to taking a triage approach), and a genuine lawyer-client relationship is formed.
How does legal representation impact outcomes in civil cases?
Numerous studies have demonstrated that the presence of counsel ensures more accurate outcomes in civil cases. Our comprehensive bibliography has more information about studies that have measured the increased positive outcomes when counsel is present.
Elements of Professional Expertise: Understanding Relational and Substantive Expertise through Lawyers’ Impact
Professor Rebecca Sandefur, American Sociological Review, vol. 80, 5: pp. 909-933 (Oct. 2015).
This study looked at prior impact studies and concluded that litigants with lawyers were anywhere from eight to over 200 times more likely to win their civil case than those without counsel and anywhere from twice to nearly five times more likely to prevail than those who received the assistance of a nonlawyer advocate.
What economic impact does civil legal representation have?
Legal aid impact studies have demonstrated cost savings for the states for decades. As right to counsel pilots are launched, many focus on measuring how much money can be saved and in what areas. Our comprehensive bibliography has more information about studies measuring potential cost savings.
Economic Benefits of Civil Legal Aid
Laura K. Abel for the Nat’l Center for Access to Justice at Cardozo Law School (2012).
This fact sheet shares how civil legal aid saves jurisdictions money and, in turn, helps reduce domestic violence, longer stays in foster care, and evictions. The factsheet also demonstrates how it can help protect patient health and help low-income people participate in safety-net programs.
