A CIVIL RIGHT TO COUNSEL

A CIVIL RIGHT TO COUNSEL

A CIVIL RIGHT TO COUNSEL

Over 53 years ago, the United States Supreme Court unanimously decided the landmark case of Gideon v. Wainwright.  In that case, the Court held that the right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial. Clarence Earl Gideon’s trial and conviction, which took place with Gideon representing himself and completely without the assistance of counsel, was found to be in violation of the 14th Amendment.  The Supreme Court ruled that the United States Constitution requires the states to provide defense attorneys to criminal defendants charged with serious offenses who cannot themselves afford lawyers.  In its opinion, the Supreme Court stated:

Any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.  This seems to us to be an obvious truth. . . .  From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.  This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

Gideon v. Wainwright, 372 U.S. 335, 344 (1967). The right to counsel does not apply in non-criminal cases (with the exception of one special class:  juveniles in civil commitment proceedings).  But the “obvious truth” articulated in Gideon, equating the fair administration of justice with the right to counsel, is yet to be realized in civil cases, even though fundamental human needs may be affected by such proceedings. Ten years ago, the American Bar Association adopted a resolution for “Civil Gideon” in instances where “basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction.”  This resolution brought into focus the need for legal assistance in cases where an indigent person might lose his or her children, home, or healthcare, for example.  Our justice system is designed by lawyers for lawyers.  Imagine a hospital where if you are a poor patient, you are told to put in your own IV.  This is obviously outrageous, and so is the lack of legal representation for the poor when faced with the potential for loss of fundamental human needs.  The fair administration of justice when such fundamental rights are at stake requires the presence of counsel. Providing legal counsel as a matter of right and at public expense to low income persons in civil proceedings where basic human needs are at stake is entirely consistent with the reasoning of Gideon. A civil right to counsel is a fundamental right.  Indeed, providing counsel is the great equalizer.  True justice should not be about means.