Sidestepping Lassiter on the Path to Civil Gideon: Civil Douglas

Abstract

Civil Gideon advocates have at each turn faced the scourge of Lassiter v. Dep't of Social Services, which established (apparently out of whole cloth) a presumption that indigent litigants are entitled to appointed counsel only when physical liberty is at stake. This article proposes side-stepping that presumption by seeking a right to counsel on appeal via Douglas v. California, not a right to counsel at trial via Gideon v. Wainwright. Once established, a civil right to counsel on appeal would presage the inevitable downfall of Lassiter and the establishment of Civil Gideon. This article poses the argument in federal constitutional terms not to support arguments in the federal courts (where recognition of a categorical civil right to counsel is unlikely), but rather to support arguments under state constitutions, which follow - and which are often more flexible than - the federal constitution.

Keywords: Right to counsel, Gideon, Douglas, Lassiter