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Toward a Context-Based Civil Right to Counsel Through "Access to Justice" Initiatives

By Russell Engler

With the flood of unrepresented litigants in the courts, unmet legal needs, and the expansion of “access to justice” commissions in the background, a three-prong strategy for a context-based civil right to counsel arises: (1) judges, court-connected mediators, and clerks should assist unrepresented litigants to ensure that the litigants do not forfeit rights due the absence of counsel; (2) programs assisting—short of representation by a lawyer in court—unrepresented litigants should supplement the expanded roles of the court system’s key players; and (3) a civil right to counsel should attach where the expanded roles of the key players and assistance programs cannot stem the forfeiture of rights in unrepresented litigants.

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