Cross-posted from Tort Deform: The Civil Justice Defense Blog
by Laura K. Abel& David Pedulla
If you are charged with a crime, facing prison, and unable to afford an attorney, the U.S. Constitution requires that the court appoint one for you. Did you know, though, that in civil cases, where the consequences may be far more devastating than spending a brief time in prison, counsel generally is not guaranteed? Every day, parents fight to keep their children, and families fight to keep their homes, without a lawyer by their side. Fueled by the knowledge that this is unjust, and by a recent resolution from the American Bar Association, advocates around the country are working to change this sad state of affairs.
It doesn't take an expert to know that if you represent yourself against someone who has a lawyer, you will be at a severe disadvantage. As the adage goes, "The man who represents himself has a fool for a lawyer." The result of such a proceeding frequently is that the unrepresented party cannot present the relevant law and facts, the judge has to decide the case in a vacuum, and the outcome is based more on accident than on a careful weighing of the facts. A democracy in which the judiciary has primary responsibility for protecting individual rights cannot afford to require low-income people to go without legal counsel in cases in which basic human needs are at stake.
This past summer, the House of Delegates of the American Bar Association unanimously approved a resolution urging federal, state, and territorial governments to assure that poor people have a right to legal counsel in cases where basic human needs, such as shelter, sustenance, safety, health, or child custody, are at stake. Michael S. Greco, the then-president of the ABA, called the resolution "historic in the realm of an extraordinarily meaningful action by the ABA." The Conference of Delegates of California Bar Associations passed its own resolution this fall, calling for free legal representation in cases dealing with sustenance, shelter, safety, health, and child custody for people unable to afford to pay for counsel. Other state and local bar associations should follow suit.
Low-income people in several states are asserting a state constitutional right to counsel in various kinds of cases involving family issues. There are also efforts underway around the country to persuade state and local legislatures to pass legislation guaranteeing a right to counsel in civil cases concerning basic human needs. The California Commission on Access to Justice recently released a model civil right to counsel statute, providing a boost to these efforts.
Of particular interest to readers who want to learn more about the state of the right to counsel in civil cases, and the movement to expand it to all cases concerning basic human needs, is a recent edition of the Clearinghouse Review: Journal of Law and Policy dedicated to the right to counsel in civil cases.