The Prioritization of Criminal Over Civil Counsel and the Discounted Danger of Private Power

Abstract

This Article seeks to make two contributions to the literature on the role of counsel. First, it brings together civil Gideon research and recent studies of collateral consequences. Like criminal convictions, civil judgments result in far-reaching collateral consequences, and these should be included in any evaluation of the private interests that civil lawyers protect. Second, this Article argues that the prioritization of criminal defense counsel over civil counsel reflects a mistaken view of lawyers’ primary role as a shield against government power. Lawyers also serve a vital role in checking the power of private actors. As private actors increasingly take over public functions, their ubiquity in civic life and power over the lives of individuals grows, and the need to check that power deserves increased attention.

Keywords: right to counsel, civil gideon, legal profession, collateral consequences, economic power, private power

JEL Classification: D61, D63, D74, D82, K41, K42