Access to Justice, Civil Right to Counsel, and the Role of the Judge

16 Pages Posted: 22 May 2020 Last revised: 21 Apr 2021

Date Written: March 1, 2020

Abstract

Judges play a crucial role in our adversary system, both inside and outside the courtroom. Yet, the past two decades have seen increased attention to the challenges facing the courts with the flood of unrepresented litigants in civil cases. The challenges impact the roles of each actor within the court system, including the judge. It should go without saying that the reality also creates immense challenges for the litigants themselves.

The challenges have led to an array of responses and strategies. Under the label of Access to Justice, responses have included a fundamental reexamination of how the courts should operate and how the various actors in the system may, or must, play their roles. Resolution 5 (2015) of the Conference of Chief Justices and Conference of State Court Administrations reaffirms the commitment to Meaningful Access to Justice for All, urging states to achieve the “goal of 100 percent access through a continuum of meaningful and appropriate services.” Other initiatives focus on the need to go beyond more limited forms of assistance and establish a right to counsel in certain civil cases. The American Bar Association’s landmark 2006 resolution calls for the provision of legal counsel as a matter of right “where basic human needs are at stake”

With challenges come opportunities. This article focuses on the crucial role of the judge in access to justice initiatives generally, but with a primary focus on the role of the judge in civil right to counsel issues. Judges will play a crucial role not only in enhancing access to justice, but also in helping to establish when a right to counsel is necessary to achieve access to justice, and often justice itself.

The article explores the access to justice and civil right to counsel backdrop for the discussion, before discussing the many ways in which judges are involved in civil right to counsel issues. Their role in deciding civil right to counsel issues that come before them is crucial, but by no means the full extent of their role. Judges also decide cases not directly addressing right to counsel issues but creating the opportunity to explain the context in which a right to counsel may be needed. At a more basic level, judges must engage thoughtfully with their role in helping to provide meaningful access to justice for unrepresented litigants appearing before them and unable to navigate the civil proceedings alone. Outside the courtroom, judges write articles, deliver speeches, participate in Access to Justice Commissions, support legislative measures, work on bench-bar initiatives to improve access to justice and even submit amicus briefs. They serve on commissions and committees that directly or indirectly demonstrate the need for a civil right to counsel in certain settings and support calls for such a right. The article ends by placing the right to counsel initiatives in the broader access to justice conversation, again highlighting the roles judges play in those initiatives.

Keywords: Access to justice, civil Gideon, civil right to counsel, judges, judicial ethics, self-represented litigants, unrepresented litigants

JEL Classification: K19, K49

Suggested Citation

Engler, Russell, Access to Justice, Civil Right to Counsel, and the Role of the Judge (March 1, 2020). 56 Court Review 10 (2020), New England Law | Boston Research Paper No. 20-01, Available at SSRN: https://ssrn.com/abstract=3607253

Russell Engler (Contact Author)

New England Law | Boston ( email )

154 Stuart St.
Boston, MA 02116
United States

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