Walking Before Running: Implementation of a Right to Counsel in Civil Cases
14 MIE Journal 6 (2010)
5 Pages Posted: 6 Feb 2015
Date Written: 2010
In Gideon v. Wainwright, the U.S. Supreme Court held that indigent criminal defendants in state court felony cases have a categorical right to appointed counsel, replacing the Court’s previous rule from Betts v. Brady that made appointment of counsel a case-by-case determination. Although not explicitly mentioned in Gideon, the Court was apparently heavily influenced by the fact that “a succession of cases had steadily eroded the old rule and proved it unworkable.” At the same time that the Gideon Court acknowledged the unworkability of the Betts approach, it did not explain how the categorical right to counsel should be implemented to avoid any new unworkability issues. And the indigent defense systems that have arisen to meet the demands of Gideon have been staffed by dedicated attorneys who have suffered through insufficient funding, extreme caseloads and lack of training.
On the civil side, the right to counsel has been significantly more limited due to the Supreme Court’s 1981 decision of Lassiter v. Dep’t of Social Services, or perhaps more accurately due to its interpretation by lower courts. Nonetheless, every state has created (via legislation or court decision) rights to counsel in some or all of the following civil areas: termination of parental rights, dependency, and cases where personal liberty is threatened (such as involuntary civil commitment, quarantine, and paternity). But at times, these new rights have been plagued by the same implementation problems as on the criminal side, as revealed by the fact patterns of some cases challenging such systems.
This article explores how some of the newest “on the ground” efforts, such as pilot projects in Massachusetts and California, the American Bar Association’s (ABA) Draft Model Act for the Civil Right to Counsel, and the ABA’s Draft Basic Principles for a Right to Counsel in Civil Legal Matters respond to the types of implementation issues addressed in the NCCRC memo.
Keywords: civil right to counsel, Gideon, implementation
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