SHOULD THE RIGHT TO COUNSEL BE EXTENDED TO CIVIL CASES?

In the United States (US), the court system holds a crucial role in maintaining public order, deciding matters of dispute, and providing a forum for individuals to raise their voices against injustices they have faced. In this sense, the US views itself as a role model for justice, underlining how individuals have access to a place where they can find solutions and where perpetrators can receive punishment. As such, lawyers have become a fundamental aspect of the US court and procedural justice system with Americans needing a lawyer’s help for almost everything from preventing unjust eviction, to issues of voting rights, immigration access, malpractice cases, and so on. However, with the importance of and need for lawyers growing in the US, some fundamental questions arise:

• Should the right to counsel be extended to civil cases?

• How does a right to counsel in civil cases affect low-income individuals seeking justice through the court system?

Before we can address these questions, we must understand the current right of counsel differentiation between criminal and civil law cases…

Criminal law defines conduct along with punishment for violations. Some of these violations include felonies and misdemeanors. Many criminal cases are resolved through plea bargains or negotiations conducted between lawyers, defendants, and judges. If they are not resolved through plea bargains, cases are taken to trial, and lawyers are utilized to represent defendants.

Civil law defines conduct and resolution related to compensation requirements such as contracts, property and domestic relations disputes, and much more. However, there is a fundamental difference between civil and criminal cases. In civil cases, the right to a lawyer is not covered by the US Constitution.

The Sixth Amendment of the US Constitution asserts that “In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for [their] defence,” (US Constitution). As such, while the Sixth Amendment provides the right to a lawyer in criminal cases, litigants in civil cases do not have the same right, even when civil cases highlight matters related to individuals’ livelihoods (i.e., unjust evictions (housing)).

Lastly, while there are some cases where the right to counsel may be given in civil matters, it is incredibly rare and provided in limited circumstances in civil matters (For more information regarding this rarity, click here).

According to a 2016 study by the American Immigration Council, individuals were 5x more likely to obtain legal relief if they were represented by counsel (American Immigration Council). This statistic is only for individuals seeking representation in immigration and asylum cases but, nevertheless, showcases the extreme importance of legal representation as a decisive factor in determining if someone will be given legal relief through the US court system. Furthermore, this statistic highlights a crucial point in understanding the need for lawyers in the US.

Additionally, in recent state-by-state studies, about 80% of the civil legal needs of those living in poverty go unmet (Buckwalter-Poza). As these individuals’ legal needs go unaddressed, they also lose their ability to get legal relief for wrongdoings committed against them.

To feature an example, the right to counsel has wide-ranging benefits for tenants facing unjust evictions. In a 2013 study on eviction cases in Manhattan, providing legal counsel to tenants was associated with a 77% decrease in the number of cases that resulted in a warrant for eviction (Stout Risius Ross). Furthermore, tenants with representation were forcibly displaced from their homes in just 5% of cases, compared to 78% of unrepresented tenants (Stout Risius Ross).

Moreover, legal representation provides a two-fold relief effort to those suffering from evictions. Firstly, a right to counsel indicated that tenants were much more likely to avoid eviction judgment and to keep ownership of their homes as compared to unrepresented tenants. Secondly, for represented tenants, lawyers were able to keep eviction filing records on the tenants’ behalf, arrange for alternative housing, negotiate reasonable amounts of time for tenants to move out, reduce or completely eliminate money owed to landlords, and/or help tenants apply for rental assistance (Schultheis & Rooney).

Without access to lawyers and their legal advice, many who desire to find justice for wrongs committed against them don’t even know of or understand their legal rights and potential claims. Without lawyers, they succumb to whatever injustices they are facing all while losing basic needs such as housing.

As the right to counsel does not typically extend to civil cases, low-income individuals are left to navigate the system without any representation. Even before these individuals have their “day in court,” the odds are already stacked against them as they cannot afford legal representation to be their voice in the courtroom or to advise them on the best route of action for compensation for wrongdoings.

It is well known that bringing a case to trial is a time-consuming and expensive endeavor. This hurdle alone is enough to discourage most potential litigants. But what happens if the case a litigant wants to bring to court is against their landlord who evicted them from their home unfairly? Now, the litigant has no way to find compensation through the courts and no housing. And, if they do try to get compensation without an attorney, the over-looming question for litigants will be whether to spend time fighting this case or finding work/financial means to find housing somewhere else. Many, in order to survive, will choose the latter.

Additionally, even though there are nonprofit organizations that offer civil legal aid services, many that need help are turned away because of a lack of resources (Concord Law School). The Legal Services Corporation (LSC) is the biggest source of funding for civil legal services and aid for low-income Americans, funding programs that provide direct legal service in all US states. However, many Americans do not qualify for the legal aid that LSC provides due to the extremely low income cutoff. In 2015, “…an individual had to make less than $14,713 per year—a family of four, less than $30,313 per year—to be eligible for Legal Services Corporation aid…” (Buckwalter-Poza).

Yet, Americans that make even several times the income threshold set by LSC can still not afford to hire a lawyer, which is seemingly a luxury that runs $200 to $300 per hour on average (Bergmark). This high cost of representation is one of the greatest deterrents for low-income individuals in utilizing their legal rights.

Overall, funding shortages force organizations such as LSC to only have enough resources to help “…half those who are eligible for…legal aid…” which numerically means that while LSC programs “aided 1.8 million Americans in 2013, another 1.8 million or more people were turned away,” (Legal Services Corporation).

Even more so, this gap between civil legal aid and the available resources has been well documented. In a 1993 American Bar Associate study, “70 percent of poor people could not obtain legal help for their serious legal problems,” (Marvy & Gardner). However, later studies highlighted that this number is closer to 90%. Consequently, poor people are left to deal with many of the injustices they face without legal assistance and cannot enforce the rights they have. This gap between legal needs and provided services propels systemic inequalities and disadvantages in underserved and low-income communities.

Lastly, in a 5-4 decision, in Lassiter v. Dep’t of Social Services, the Supreme Court of the United States (SCOTUS) held that there is a presumption against appointing counsel in cases that have no threat of incarceration for the litigant. Through this case, SCOTUS effectively stated that efforts to recognize the right to counsel in civil cases as a matter of federal due process were unconstitutional.

Lassiter v. Dep’t of Social Services rung in a federal defeat for low-income individuals who desired to be able to have counsel to fight for housing, healthcare, employment, and family injustices they faced. Yet, SCOTUS left an opening for states to establish separate procedural processes regarding the right to counsel in civil cases within state courts.

In a journal titled “The Psychology of Procedural Justice in the Federal Courts,” author Rebecca Hollander-Bulmoff spotlights how the way litigants feel about and view the procedural justice system depends on their psychology. More specifically, if individuals feel they have not been properly represented or if the outcome of the case was not what they desired, they look negatively towards the court system and procedural justice in the US.

Hollander-Bulmoff highlights how “…a close look at procedural justice in litigation suggests that a lawyer's role as representative…may be important in thinking about litigant assessments of procedural justice,” (Hollander-Blumoff, p. 146).

This quote by Hollander-Bulmoff centers on the importance of legal representation in our justice system. An individual’s assessment of trust and neutrality in procedural justice is heavily dependent on how much they trust and believe in their lawyers. This is because lawyers act as an individual’s voice in courtrooms. If a lawyer fails to understand the individual or voice their concerns, the individual loses faith in the justice system. If the litigant is not able to be represented by a lawyer, they feel that they are being treated unfairly and, thus, lose faith in the justice system.

Furthermore, lawyers are the ones who do most of the speaking on the client’s behalf and are also the ones to interact with the judges, prosecutors, and other legal staff. Lawyers know what needs to be said, how it should be said, and what proper decorum and legal procedures are. A litigant representing themselves pro se does not have the same knowledge that a legal representative would have. In this way, a litigant’s perceptions of how fair and effective the procedural justice system is can also be tainted if they lack proper representation.

Ultimately, as Michael Greco, the former President of the American Bar Association (ABA), emphasized in his call to address the lack of representation for low-income individuals:

“[W]hen litigants cannot effectively navigate the legal system…the adversarial process itself breaks down and the courts cannot properly perform their role of delivering a just result,” (Michael Greco).

• Judges should utilize their discretion to appoint lawyers more often and ensure that litigants can give the best defense possible.

• Courts should focus on simplifying the legal processes associated with cases and promote access to more justice-oriented resources to make it easier for individuals to navigate representing themselves (i.e., educational resources that highlight legal processes in an easy-to-understand manner).

  • • Courts should also make these resources easily accessible to all.

• Comprehensive town halls or community forums with judges, lawyers, and public justice authorities should be held in states to discuss advancing the right to counsel in civil cases.

Without legal assistance, the laws that protect our basic rights to family integrity, shelter, healthcare, food access, and employment have become meaningless for many low-income people. To deny Americans access to legal assistance in all matters, criminal and civil, is to deny them their rights and protections.

Poverty should not be a barrier that results in individuals surrendering their legal rights. Moreover, the right to counsel should not be looked at as a privilege but as a fundamental human right.

If our court systems believe that the rights to family, housing, healthcare, employment rights, and so much more, are contingent on the litigant having enough wealth to hire legal counsel, the US justice system loses all meaning of true justness.