The Right to Counsel in Civil Proceedings: An International Perspective
In the United States, people of limited means suffer a tremendous unmet need for legal services in civil proceedings. Why does the United States fall so far behind in providing that service in comparison with other western democracies?
Background on the Right to Counsel
In 1963, the Supreme Court decided Gideon v. Wainwright, the landmark Sixth Amendment decision requiring that states provide legal counsel for indigent criminal defendants. No such right to counsel, however, has been established in civil proceedings despite the fact that for many low-income individuals, the outcome of certain civil legal proceedings can have an impact as significant, lasting, and life-altering as some criminal cases.
In the absence of a federally recognized right to counsel in civil matters, state and local authorities have been primarily responsible for protecting the rights of low-income individuals in civil proceedings where they see fit. As a result, the provision of free legal services differs greatly from state to state, and even within a given state.
A 2017 study demonstrated that 71% of low-income households experienced at least one civil legal problem that year, including health care, housing conditions, veterans’ benefits, disability access, and domestic violence matters. In 86% of those civil legal problems, low-income Americans “received inadequate or no legal help.” In addition, in over three-fourths of all civil trials in the United States, at least one litigant does not have legal representation.
The United States falls far behind other countries in providing civil legal representation to low-income individuals. The World Justice Project’s 2019 Rule of Law Index ranks the U.S. as tied for 99th out of 126 countries on “accessibility and affordability of civil justice,” which measures “the accessibility and affordability of civil courts, including whether people are aware of available remedies, can access and afford legal advice and representation, and can access the court system without incurring unreasonable fees, encountering unreasonable procedural hurdles, or experiencing physical or linguistic barriers.” Even more concerning, the U.S. has dropped nearly 30 spots in the ranking from 2015 to 2019.
In contrast to the U.S., the 49 Council of Europe (COE) member countries, as well as nine other countries, provide some sort of federal right to counsel for low-income individuals. In France, for example, there is a right to counsel in all civil and administrative cases. Lawyers provide assistance with litigation, mediation, transactions, and general legal advice on an income-based sliding scale. Representation of minors, those in immigration proceedings, and individuals involved in veteran pension matters are provided representation regardless of financial need. While some countries are more restrictive in their scope of and qualification for representation, most COE members provide “extensive protection” for immigrants. In the COE member countries, as well as Canada, Australia, and New Zealand, public funding for civil representation (calculated in any manner; by budget amount per indigent person, per capita, or as a percentage of gross national product) far exceeds spending in the United States.
Where Do We Go From Here?
In response to the statistics above, and in the absence of any established constitutional right to counsel in civil cases, the federal government would better protect fundamental rights of countless people by increasing its financial commitment to legal services for the poor. Unfortunately, when adjusted for inflation, federal funding for the Legal Services Corp. (LSC), which provides financial support to 132 legal aid programs around the country, has declined by 56.8% since 1980. Now, a proposed budget cut is threatening to reduce the federal government’s support even further. In March, the administration’s proposed 2020 budget recommended completely eliminating funding for LSC.
To the extent we don’t address the growing “justice gap,” we are jeopardizing more than just the right outcome in individual legal matters. As stated by Justice Lewis F. Powell, Jr., “Equal justice under law is not merely a caption on the facade of the Supreme Court building; it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists . . . it is fundamental that justice should be the same, in substance and availability, without regard to economic status.”