The Price of Equal Justice: The Right to Counsel in Evictions and other Civil Legal Matters

In 1963, the United States Supreme Court held, in Gideon v. Wainwright, that there was a constitutional right to the appointment of counsel for indigent defendants in criminal proceedings. Many scholars and advocates hoped and anticipated that the right to counsel would soon be extended to civil legal matters in which fundamental human needs are at stake, including family, housing, health, safety and income. In 1981, however, the U.S. Supreme Court held, in Lassiter v. Department of Social Services, Durham County, that there was no right to counsel under the federal constitution in a proceeding in which an incarcerated mother faced losing permanent custody of her child. In spite of Lassiter, most states have established a right to counsel in child custody proceedings, and the right to counsel has been established at the state and local level in other civil matters as well. In addition, a movement to secure a right to counsel in civil matters has been active and growing in recent years and the ABA and state and local bar associations have been centrally involved.

This program, led by attorney Andrew Scherer, addresses the legal and policy arguments surrounding the right to counsel in civil legal matters and the current and recent efforts to secure the right. The program addresses the status of the civil right to counsel and efforts to secure the right around the country, with a particular emphasis on the effort to secure a right to counsel for low-income tenants who face eviction in New York City.

Learning Objectives:

I.     Recognize the history and the constitutional and statutory underpinnings of the existing right to counsel in certain civil matters

II.    Understand the legal and policy arguments related to expanding the right to counsel in civil matters

III.   Become familiar with the current state-by-state status of the right to counsel in civil matters and of efforts to expand the right

IV.   Identify principles of international law that protect and advance rights related to access to justice

V.    Grasp the current effort to secure a right to counsel in eviction cases in New York City and the legal and policy arguments that are being made in favor of the right