Toward a Civil Gideon

In 1963, the United States Supreme Court held in Gideon v. Wainwright that states are constitutionally required to provide attorneys to represent indigent criminal defendants. Writing for a unanimous court, Justice Black emphasized the moral necessity of the provision of counsel, stating that “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” While the Sixth Amendment explicitly guarantees Americans a right to counsel in criminal proceedings, no such protection exists for civil proceedings. Although these proceedings never carry the threat of imprisonment, they often pose major implications for citizens’ lives and liberties. In pursuit of a more equitable justice system, legislators should implement a limited civil right to counsel.

For low-income citizens, legal representation is often inaccessible or inadequate. Legal aid programs reject nearly one million clients annually due to insufficient resources, and applicants to such programs only represent a small fraction of all low-income individuals facing legal problems. This shortage of assistance often results in litigants representing themselves in court, subsequently “fail[ing] at virtually every stage of civil litigation and overwhelmingly fail[ing] to obtain meaningful access to justice.” Although some litigants are able to secure an attorney, inequality of counsel still permeates the civil law system. This inequality is especially present in certain litigation areas, such as civil rights, immigration, and personal injury, in which “an individual is usually matched against a firm, an insurer, or the government.” These three areas of law were the most commonly named by judges when they were asked which area of civil litigation, in their experience, featured the most significant disparity in representation. Civil rights, immigration, and personal injury received 61%, 17%, and 14% of responses respectively. By contrast, both intellectual property and tax received just 1% of responses. While a low-income litigant often faces a resource-rich firm or the government in the former areas, in the latter it is likely that “opposing litigants both have considerable wealth.” Inequality of effectiveness of counsel leads to adverse outcomes for low-income litigants, as “prospective plaintiffs with resource constraints may elect not to bring suit [while those] who do bring suit may find that that [sic] wealthier defendants can exploit their resource advantage… to prevail or resolve the dispute on favorable terms.”

However, indigent litigants need not struggle to secure justice through the court system. In recent years, many states, including California, Connecticut, Maryland, and Massachusetts, have studied or carried out pilot projects implementing a right to counsel in certain civil proceedings. Covered proceedings vary state by state, but include subjects such as adoption, child custody, conservatorship, guardianship, and housing. In 2017, New York City took the right-to-counsel movement to new heights, passing a law guaranteeing free legal representation in eviction proceedings to certain tenants with an income at or below 200 percent of the federal poverty line. The National Bureau of Economic Research found that tenants provided with an attorney under this law “are considerably less likely to be subject to possessory judgments, face smaller monetary damages, are less likely to have eviction warrants issued against them, and are ultimately less likely to be evicted.” Not only did the New York City right-to-counsel law positively impact poor tenants’ prospects, but it is also likely to ease budgetary stress associated with the city’s homeless shelters, unsheltered homeless populations, and affordable housing developments. One study even estimated that the policy could result in annual city savings of $320 million on an investment of only $199 million. In the last year, several municipalities and the states of Connecticut, Maryland, and Washington have joined New York City and implemented a right to counsel in eviction proceedings.

Currently, the civil right to counsel is in its early stages, nonexistent in some states and in various stages of development in others. This variation can and should be remedied by action to enshrine a civil right to counsel on the federal level. This solution, while not a familiar subject in public political discourse, has been endorsed by a number of influential organizations, namely the American Bar Association (ABA). In 2006, the ABA adopted a resolution urging “federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low-income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction.” In the ABA’s proposed model for codification of this right to counsel, “[f]ull public legal representation services shall be available to a [financially eligible] plaintiff or petitioner if a basic human need as defined herein is at stake and that person has a reasonable possibility of achieving a successful outcome.” Guaranteeing indigent litigants counsel in these areas, which feature the highest disparities in representation and the highest stakes in outcomes, is a reasonable and worthwhile policy objective.

The American court system provides a unique avenue for any citizen to secure justice. Too often, however, access to justice is restricted to wealthier Americans who can afford high-quality legal representation. This disparity is especially problematic when low-income Americans become involuntarily embroiled in civil actions that threaten their livelihoods, including eviction proceedings, child custody battles, and employment struggles. To combat inequality of outcomes in the American legal system and pursue a broader goal of economic equality, municipal, state, and federal legislators should codify a civil right to counsel in proceedings involving basic human necessities.

Jude Farley is a freshman at Brown University, concentrating in International & Public Affairs. He is a staff writer for the Brown Undergraduate Law Review and can be contacted at jude_farley@brown.edu.