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Should There Be a Right To a Free Attorney in Civil Cases?

The American Bar Association has filed a brief in a New Hampshire court in favor of state funding of appointed counsel in certain civil cases.

As you may know, you have a constitutional right to have a lawyer appointed to defend you in most criminal cases, if you can’t afford to hire a lawyer. This makes perfect sense. After all, in a criminal case, a whole lot can be at stake. Usually, losing a criminal case means, at the very least, losing one’s freedom for a fairly long period of time. And, in the most extreme cases, the defendant’s life could be at stake. So, if we want to believe that we live in a free and fair society, we have to do absolutely everything we can to ensure that all criminal defendants get a fair trial. One essential element of that is a defense by a competent attorney, whether the defendant can afford it or not.

However, the law generally does not recognize a constitutional right to a free court-appointed lawyer in a civil lawsuit, whether you’re the plaintiff or the defendant. To some people, this doesn’t make sense, because in many civil cases, just as much can be at stake as in a criminal case.

In a landlord-tenant lawsuit, a loss may result in a family being evicted from their apartment, and thrown out onto the street. In a lawsuit over eligibility for disability benefits, the applicant’s ability to obtain basic healthcare may be at stake. And, if parents are accused of abusing or neglecting their children, the state may initiate a civil action to have the children removed from their home (this issue is completely separate from the parents’ criminal liability for the alleged abuse). Generally, the law says that you have no right to a court-appointed attorney in these cases, even if you can’t afford one, and everything is at stake.

Many individuals and organizations, however, are seeking to change that.  The American Bar Association has advocated for state and federal authorities to provide attorneys in adversarial legal actions where “basic human needs” are at stake.

This is sometimes called a “Civil Gideon” rule, which refers to the Supreme Court case of Gideon v. Wainwright, which first recognized the constitutional right to court-appointed counsel for defendants in criminal cases.

California has led the way in this push. Back in 2009, the state legislature passed a law which closely mirrors the policy advocated by the ABA. It authorizes funding for court-appointed attorneys to indigent parties in civil cases that involve basic human needs, such as eviction and foreclosure cases, child custody cases, and cases involving eligibility for healthcare benefits such as Medicare or Medicaid. Anyone whose income is 200% above the poverty line or lower is eligible for court-appointed attorneys in these cases. For a family of four, this is an annual income of a little over $44,000.

Personally, I think that this is a sound policy, at least in theory. With the budgets of many states (notably California) being strained to the breaking point, adding yet another funding mandate is a tough pill to swallow for many Californians.

Also, some (mostly) conservative commentators have noted that such a rule will make it more difficult and expensive for landlords to carry out legitimate and justified evictions, which could end up raising rents on everybody, including the low-income renters that this law is intended to protect.

That’s probably the most compelling argument against this law. However, I think the pros of a rule like this most definitely outweigh the cons. It’s pretty hard to argue that a parent who is facing the prospect of losing custody of their children shouldn’t have a court-appointed lawyer in such cases. And if a severely disabled individual is denied SSDI benefits, it’s hard to argue with a straight face that they shouldn’t be able to pursue every legal avenue available to them to appeal this decision, as effectively as possible.

Obviously, such a system can never be perfect, and many practical issues come up, particularly having to do with its implementation. For example, should there be a dedicated state organization staffed by full-time lawyers, tasked with handling cases like these (like the office of the public defender)? Or should all California lawyers be required to participate in it? There are advantages and disadvantage to both approaches.

Another possible sticking point is the question of where to draw the line on what constitutes a basic human need. It’s likely that the courts will become involved in clarifying this language. After all, it would be prohibitively expensive to provide indigent parties with a lawyer in every civil case. And that was never the intent of this law.

In any case, I think the ABA has made the right decision in calling on state and federal governments to provide court-appointed lawyers in some civil cases. Given the fact that just as much can be at stake as in criminal cases, it’s really hard to argue that the same interests of justice do not apply to some civil matters.

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  • David Cox

    Does anyone agree there should be proper unprepared court appointed council available for Pro-Se Plaintiffs’ in combination Criminal/Civil Rights Cases?

  • David Cox

    It appears the criminal justice system is more concerned with fiiling a bed with a body, and the constitution is being set aside. If a repeat offender is afforded court appointed council, what then do we tell Pro-Se Plaintiffs? The probability of 10 to 1 on being heard. The only reason for a Pro-Se complaint is from Civil Rights/ criminal violations have been committed. The tax payers hard earned dollars would be better served hearing a plaintiff, vs. repeat offender. The constitution should provide equal protection under the law for plaintiffs, who are articulate able beond any doubt to show financial, professional, and social loss with a sum in mind. Finacial recovery is next to non-existant for those who have been wronged that present themselves to the court as a plaintiff. The very meaning for the scales of justice are to maintain the balance of the needs of society as well as the PERSONAL NEEDS OF INDIVIDUALS. Lady justice is blind for a good reason. She is not deaf therefore she hears all things with prospective. Do not let the pleas of innocent plaintiffs fall on deaf ears.

  • Mrs. Sharp

    I had my ex removed for domestic violence assault and because the got “legal aid”, they wouldn’t help me. I went to trial with no lawyer, and subsequently lost custody of my 6 yr old. Now I find out that my ex was ticketed for open liquor container while my son was in the car! Neighbors say my ex is the neighborhood drunk, but that’s who’s got my kids! I live in MN and can’t afford to quit my job and go back to UT to fight for them! And can’t get help doing it! Who is going to claim responsibility for my kids when something DOES happen to them? Certainly not the Guardian-Ad-Litem’s office! And not DCFS! They won’t even investigate it “without a copy of the ticket”! But because he got legal aid, “it’s a conflict of interests”?

    This just proves “how our justice department” “protects and serves”! No wonder people take things into their own hands. It’s only proven to me that whoever has the deepest pockets WINS!

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