By Michelle Blouin, Communications Associate, Access to Justice Lab, Harvard Law School
Our most recent Proof Over Precedent episode sounds, at first, like a 50-minute dose of irony in which three heavy hitters in the access to justice space take aim at civil Gideon—the concept of a right to counsel in civil cases—and come up firmly against it. The American Bar Association has even thrown its weight behind the idea, though they’ve strategically rephrased it as “civil right to counsel”—and suggested limiting the right to cases “involving basic human needs—such as shelter, sustenance, safety, health, and child custody.” So why would these leaders—Law Professor Benjamin Barton of the University of Tennessee; the Honorable Stephanos Bibas of the U.S. Court of Appeals for the Third Circuit; and Law Professor Jim Greiner, Director of the Access to Justice Lab at Harvard Law School—actively pursue an anti-civil Gideon stance? Listen to the episode to hear it in their words. Otherwise, here’s a breakdown of their argument against a civil right to counsel.
Right to Counsel Recap
The right to counsel stems from Gideon v. Wainwright (1963), a landmark Supreme Court case that states the Sixth Amendment extends the right to counsel for indigent criminal defendants in state courts.
The Supreme Court most recently confronted the same right-to-civil-counsel debate when it heard Turner v. Rogers (2011), a case that questioned whether an indigent individual facing incarceration for civil contempt should be entitled to a court-appointed attorney. The case involved a low-income, non-custodial parent failing to make child support payments to another low-income parent; both parties self-represented in court. (Judge Bibas, at the time a professor at University of Pennsylvania Carey Law School, represented one of the parties in the Supreme Court.) Among other findings, the court ultimately determined that the Fourteenth Amendment’s Due Process Clause did not automatically extend to civil contempt proceedings. The Turner v. Rogers finding prompted a meeting of the minds between Barton, who had previously shared his stance in a 2010 article called “Against Civil Gideon (and for Pro Se Court Reform)”, and Bibas, who supported the argument. The two co-authored both an article in the Pennsylvania Law Review (“Triaging Appointed Counsel Funding and Pro Se Access to Justice”) and a book (Rebooting Justice). They joined forces in an unpopular opinion on an access to justice belief that was gaining momentum.
Support for Civil Right to Counsel
The 20th century saw a shift in Sixth Amendment interpretations from the right to hire a person’s own lawyer to the right to have a lawyer appointed to a person if he/she cannot afford one in criminal cases. “A lot of people look at that as the march of progress and say, ‘Well, we’ve had more lawyers in criminal cases. Why don’t we get them in high-stakes civil cases, too?’” Judge Bibas said on the podcast. Those high stakes may include removal of parental rights, imprisonment for nonpayment of child support, or deportation from the country.
Getting others in the legal community behind the notion of greater access to justice in civil proceedings was not a hard sell. In 2006, the House of Delegates for the American Bar Association, the organization that represents lawyers across the U.S., adopted a resolution urging adoption of a civil right to counsel. The report read:
RESOLVED, That the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction.
This initial report indicated its aim was to affect state law initially before influencing federal regulations. In it, the report outlined its objectives, including increased funding for legal services, communication of affordable legal services, and effective full representation.
The ABA followed up in 2010 with its approved Proposed ABA Basic Principles of a Right to Counsel in Civil Legal Proceedings, a report that further outlined its access to justice goals.
More Lawyers, More Justice Fallacy
So how successful in practice was that resolution to provide more lawyers in high-stakes civil cases? Despite its noble end goal and some successes at the municipal level in the eviction context, the proposal—and really, the whole concept of civil Gideon—has failed, per the trio in the podcast, on account of several obstacles:
- Systemic underfunding, as exemplified by the current right to counsel in criminal cases, means a shortage of lawyers and a well-documented acknowledgement of an overwhelming caseload for existing public defense attorneys
- Dilution of attorney quality, as exemplified by the current right to counsel in criminal cases; in some instances, the lawyer has limited time to understand the case and prepare for the hearing without time for legal research; “sufficient lawyering” may also include the attorney who sleeps through trial or shows up drunk to court
- Recognition that providing lawyers in every case may be ineffective; little evidence exists to support “lawyers for everyone”, and randomized control trials contradict the notion that more lawyer is always better than less lawyer
- Varying adoption of the “lawyers for everyone” thesis and practice by states leads to varying access to justice
“It’s not like we’re against having lawyers for people who are facing serious felonies,” Barton said. “It’s the expansion and the dilution of it…you take a serious right and then you apply it to too many people and you underfund it, and then it stops being a serious right.”
For a long time, and for many still, the civil Gideon attempt is an effort to have courts order the right to counsel, which means it will be underfunded and potentially not prioritized, they noted. If it were a legislative order, whether that’s a favorable way of implementing civil Gideon or not, it would have been processed through a system designed to balance priorities, meaning that it might or might not have sufficient funding.
Both Barton and Bibas agree that “lawyers for everyone” in the criminal context is an already flawed system; their question is, ‘do we really want to replicate that?’
Access to Justice Alternatives
Critiquing an idea intended to improve access to justice requires an offer of alternative ways to achieve the same goal. Barton and Bibas looked to legal environments in other countries to see that lawyers are not always the answer. In some countries, social workers, paralegals, translators, guardians, and other paraprofessionals do the work that, in the U.S., would require a J.D.
Pro se self-help materials, if supported by evidence, could likewise assist in lower-stakes legal needs. Unfortunately, thus far, evidence from the A2J Lab has shown no improvement in self-materials aiding pro se litigants.
Technology, and artificial intelligence more specifically, may support legal needs and bolster the access to justice goals of the industry at the same time if tested via RCTs and regulated appropriately; Bibas sees AI as perhaps filling in where self-help materials have fallen short. Designing a system from the ground up to help individuals, rather than basing the help on systems designed for lawyers, may support individuals without requiring much help from lawyers.
Another alternative—Bibas called it a “choice”—is in the type of legal system the U.S. chooses to adopt. Other countries, he noted, use an inquisitorial system—a hands-on legal system in which the judge takes an active role in guiding the investigation, questioning witnesses, and gathering evidence to obtain truth while lawyers are present to protect clients’ rights. The U.S. uses an adversarial legal system in which the disinterested (not uninterested) judge has a more neutral job as referee, and the role of investigating, questioning, and gathering evidence falls to the parties. Under this adversarial system, there is an appearance that access to justice ambitions require a right to counsel. But that system is a choice. It’s not required, by the Bill of Rights, for the U.S. to employ an adversarial legal system. The country, in fact, does use a more inquisitorial approach in some legal environments, for example, in social security disability determinations. ”We could redesign [court proceedings] so they don’t require lawyers in the first place,” Bibas said. “And that’s the way forward given the realities of what we’ve seen about how poorly the expansions of Gideon have worked.”
Barton supported this call for an inquisitorial system by pointing to the majority of Americans who go to civil court representing themselves in cases like debt collection or evictions. They typically have only experienced court via media like Judge Judy, who runs an inquisitorial court on television. So, why handicap individuals in court before they’ve even entered the building?
If Triage, then No Access to Justice
In the accompanying Proof Over Precedent episode, Greiner, Bibas, and Barton all acknowledge the sobering conclusion that an underfunded system automatically means unplanned triage, failing some who may truly need legal assistance. Barton pointed to the “low-hanging fruit” in the legal system as a starting point for change, while Bibas gave an optimistic assessment in looking at AI and entrepreneurial work in the legal space: “[J]ust as a forest fire sometimes clears the way and fertilizes the soil for new growth, I think that recognizing the failures…paves the way for change.”
If you’re interested in more on this topic, listen to our podcast episode.