Pursuing Access to Justice and Civil Right to Counsel in a Time of Economic Crisis

Posted: 17 Jul 2010

Date Written: July 16, 2010

Abstract

This article explores the importance of pursuing Access to Justice and Civil Right to Counsel even in a time of economic crisis. The article uses as its starting point the January, 2008 Courthouse Centennial events hosted by the United States District Court for the District of Rhode Island. The commemoration include a “Civil Gideon” panel as part of its “Access to Justice Symposia.” As part of my comments as a panelist, I pressed for an Access to Justice Strategy that included an expanded civil right to counsel, or “Civil Gideon,” as an integral component. I argued that Access to Justice efforts must target the forfeiture of rights due to the absence of counsel, as reflected in a coordinated, three-pronged approach: 1) revising the roles of the key players, such as the Judges, Mediators and Clerks, 2) using, but also evaluating robust and effective assistance programs, and 3) expanded access to full representation where basic human needs are at stake and lesser forms of assistance cannot protect those basic needs.

While neither the panelists nor speakers questioned the need or justification for an expanded right to counsel, the comments and questions reflected skepticism as to the feasibility of such an approach. If there was skepticism in January, 2008, events since that time might render the concept of a civil right to counsel even more of a pipedream. The worst recession since the Great Depression has dramatically increased the numbers of Americans whose basic human needs are at issue in legal proceedings, and need counsel. Yet, the same funding crisis that expands the numbers of those needing help has decimated the ability of legal services offices to provide assistance. Offices relying on money from Interest on Lawyers Trust Accounts (IOLTA) have faced devastating cutbacks with plummeting interest rates and the collapse of the real estate market. Offices dependent on aid from state and local governments have faced cutbacks with the fiscal crises facing governments. Lay-offs and retrenchment seem more likely than an expanded right to counsel.

While these events might suggest a tabling of an agenda to expand the provision of counsel, I believe instead the scenario underscores the need to pursue a Civil Gideon as a component of an overarching Access to Justice Strategy. This article will briefly review the structure of the proposed approach and practical steps to move ahead. Developing our understanding of precisely the scenarios in which counsel is most needed becomes more essential the scarcer the resources. The article will then explore opportunities to move the agenda forward despite the current political and economic realities. In some states, task forces focused on Civil Gideon and Access to Justice Commissions are moving ahead on the agenda to expand the civil right to counsel. In other instances, the expansion of the right involves litigation.

An Access to Justice strategy must also include initiatives to decrease the need for counsel where possible. Changes in the operation of particular courts and agencies might reduce the need for counsel in certain eviction, debt collection, immigration and benefits cases. Finally, we should seize the political moments that emerge, identifying opportunities to expand the provision of counsel from sources we might not have anticipated. Examples include the governmental response to the foreclosure crisis, national attitudes toward immigration proceedings that may be shifting and the increased availability of pro bono resources.

Keywords: Access to Justice, Civil Gideon, Civil Right to Counsel, Unrepresented, Pro Se, Self-Represented, Limited Assistance, Self-Help

Suggested Citation

Engler, Russell, Pursuing Access to Justice and Civil Right to Counsel in a Time of Economic Crisis (July 16, 2010). Roger Williams University Law Review, Vol. 15, No. 472, 2010. Available at SSRN: https://ssrn.com/abstract=1641274

Russell Engler (Contact Author)

New England Law | Boston ( email )

154 Stuart St.
Boston, MA 02116
United States

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