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Access to Justice for All

A Comprehensive Look at the Civil Right to Counsel Across the United States

By Lindsey Cecellia Jackson, Stuart Downey & Bryant Lin

Unlike in criminal proceedings, where defendants have a constitutionally guaranteed right to counsel, not all litigants in all civil proceedings have a right to counsel.1 Instead the U.S. Supreme Court found a “presumption that an indigent litigant [in a civil proceeding] has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.”2 In spite of this presumption, the due process clause “does not always require the provision of counsel in civil proceedings where incarceration is threatened,” such as civil contempt proceedings.3

Even so, “due process is flexible and calls for such procedural protections as the particular situation demands.”4 In certain civil proceedings due process might still require that an indigent litigant be appointed counsel. Where a civil proceeding does not threaten an indigent litigant’s physical liberty, the Supreme Court directed trial courts to weigh three factors in determining whether counsel should be appointed under the Fourteenth Amendment: “the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions.”5 Because trial courts often weigh these three factors differently, the civil right to counsel recognized pursuant to the Fourteenth Amendment varies among states.6

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Unlike in criminal proceedings, where defendants have a constitutionally guaranteed right to counsel, not all litigants in all civil proceedings have a right to counsel.

The civil right to counsel also varies among states because some states guarantee such a right that expands on those afforded by the U.S. Constitution and enforced by the Supreme Court. States can accomplish this by either enacting statutes or interpreting their state constitution's due process clause to provide broader rights than that guaranteed by the federal constitution.7

With such diversity among state court rulings regarding rights to counsel and at the request of the Right to Counsel Committee of the California Commission on Access to Justice, we reviewed existing research as to which states afford what rights to particular civil litigants. Much of this research was developed by the National Coalition for a Civil Right to Counsel, which advocates a right to counsel for indigent people in civil cases involving basic human needs such as housing, public benefits, domestic violence, health, child custody, immigration, and incarceration. The coalition's ranks have grown to nearly 300 participants in 38 states, and in addition to advancing the right to counsel via litigation, legislation, and increased public awareness, the coalition serves as the primary information clearinghouse on the issue. The coalition's website, civilrighttocounsel.org, features an interactive map showing the status of the right to counsel by subject area, allowing visitors to see a visual depiction of which states provide a categorical or qualified right to counsel, leave appointment to the discretion of judges, or do not authorize appointment at all for each type of civil case.8 Clicking on any state allows the visitor to see the details of that right, including a citation to the source and whether the source is statutory or constitutional. The coalition also contributed its research to the American Bar Association's Directory of Law Governing Appointment of Counsel in State Civil Proceedings, a resource for state trial judges weighing whether they must, should, or cannot appoint counsel in any particular case.9 Both the coalition's map and the American Bar Association's directory served as the primary basis for the appendix below, which summarizes the discretionary, mandatory, and qualified rights to counsel in 33 discrete legal areas. Besides serving as a tool and resource, this comprehensive chart shows the progress made and the areas where work is left to be done for unrepresented civil litigants.

This is not the first article to catalog the civil right to counsel across the United States. Laura K. Abel and Max Rettig first did so in their seminal 2006 comprehensive survey, also published in Clearinghouse.10 Now, more than a decade later and with the benefit of the existing research, we revisit where the United States stands on the civil right to counsel.

Trends Across States

While civil rights to counsel vary widely among the states, some civil legal matters have seen widespread progress in securing a right to counsel. Overall, states are particularly receptive to granting a right to counsel in familial matters, especially where a parent runs the risk of losing custody of a child. With the exception of Indiana, which provides a discretionary right, all states require a right to counsel for those defendants facing involuntary civil commitment. Similarly all states but Mississippi give allegedly incapacitated persons at least a discretionary right to counsel in petitions for guardianship or conservatorship.

While certain states provide their citizens with a much more accessible path to the courthouse, as a whole, the United States ranks low among developed countries in its accessibility to its civil justice system. Each year the World Justice Project publishes a report measuring how people across the world experience the rule of law in practice. One primary factor on which all countries are scored and ranked is civil justice, which “measures [among other factors] whether civil justice systems are accessible and affordable.”11 The United States ranks 28th worldwide in civil justice.12 In terms of accessibility and affordability specifically, the United States is far below the average for both high-income countries and countries that are part of the European Union, European Free Trade Association, or North America.13

States are particularly receptive to granting a right to counsel in familial matters, especially where a parent runs the risk of losing custody of a child.

 

A Big Gap: Immigrant Representation

If the United States is to improve its access to justice, it must look to make substantial changes in the areas with the least amount of growth. One group in particular has severely limited access to justice: immigrants in immigration proceedings.

Immigrants in the United States have no federal right to appointed counsel in immigration court. While immigrants do have the right to counsel of their own choice at their own expense, a majority of immigrants in removal proceedings are not represented by an attorney.14 A nationwide study of more than 1.2 million deportation cases decided between 2007 and 2012 estimated that only 37 percent of all immigrants, and a mere 14 percent of detained immigrants, were represented by an attorney.15 Moreover, only 2 percent of these immigrants facing removal proceedings secured pro bono representation from law firms, nonprofit organizations, or law school clinics.

Recent studies confirm that immigrants lack access to legal representation. A study analyzing 110,131 cases in California immigration courts between 2012 and 2015 found that only approximately 32 percent of immigrant detainees were represented by an attorney.16 Similarly a study reviewing cases before Washington, D.C., metropolitan area immigration courts found that only 29 percent of detained immigrants in Arlington and 19 percent of detained immigrants in Baltimore were represented by an attorney.17 A study of removal proceedings in New Jersey immigration courts in 2013 and 2014 estimated that only one-third of the detained immigrants had attorney representation.18

Immigrants in removal proceedings without legal representation face dramatically worse odds than immigrants with representation. Among similarly situated detained immigrants, those with counsel obtained relief three times more often than those without counsel.19 Among similarly situated nondetained immigrants, those represented by counsel obtained relief eight times more often than those without counsel.20 These discrepancies between the likelihood of success of those with counsel compared to those without run afoul of the ideal that the merits of one’s case, rather than one’s wherewithal, ought to determine the success of that case.

The benefits of increasing access to legal representation in immigration proceedings extend beyond simply improving an immigrant’s odds of obtaining relief. Studies have shown that increased legal representation can lead to a more effective use of immigration court resources. Immigrants represented by counsel tended to obtain fewer continuances, file fewer unmeritorious claims, and require fewer hearings and lower detention costs than their unrepresented counterparts.21 Thus increasing access to counsel among immigrants facing removal can lead to a more just and efficient immigration system.

Some state and local governments have taken significant steps to making justice more accessible to immigrants in removal proceedings. A federal district court in California held in 2013 that immigrants with “mental disabilities” must be appointed legal representation in their immigration proceedings.22 In 2015 New York City became one of the first jurisdictions to offer universal representation to any detained and indigent immigrant facing deportation. New York City funded the New York Immigration Family Unity Project, which worked with organizations such as Bronx Defenders, Brooklyn Defender Services, and Legal Aid Society to intensify the improvement of access to legal services for immigrants. As a result, clients of the New York program are projected to succeed in their cases 10 times as often as unrepresented detained immigrants.23 Inspired by the successes of the project, legislators from other states and cities have sought to implement similar programs on the local and national level.24

The United States ranks low among developed countries in its accessibility to its civil justice system.

Given the current political climate in the United States, continued research into and advocacy for immigrants’ access to counsel in immigration proceedings seem critical. By the time this survey is updated again, we hope to see expanded rights to counsel across the board in civil matters, especially in the area of immigration proceedings.

Authors’ Acknowledgment

We would like to thank Bart Quintans of Paul Hastings for his research and editing assistance.

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