ABA Resolution Supports Creation of Right to Counsel in High Stakes Civil Cases
Statements & Testimony
On August 7, 2006, the ABA unanimously approved the following resolution:
RESOLVED, That the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction.
In its report on the resolution, the ABA stated:
This Resolution is the Logical Next Step in the ABA’s Long History of Support for Achieving Equal Justice in the United States.
The ABA also has long recognized that the nation's legal profession has a special obligation to advance the national commitment to provide equal justice. The Association's efforts to promote civil legal aid and access to appointed counsel for indigent litigants are quintessential expressions of these principles.
Despite 130 Years of Legal Aid in the United States, Existing Resources Have Proven Inadequate to Fulfill the Promise of Equal Justice for All.
Most European and Commonwealth countries have had a right to counsel in civil cases for decades or even centuries, entitling all poor people to legal assistance when needed. The United States, in contrast, has relied principally on supplying a fixed number of lawyers and providing representation only to however many poor people this limited resource is able to serve. As of today, the level of resource does not approach the level of need and only a fortunate few of those unable to afford counsel enjoy effective access to justice when facing serious legal problems.
Current Efforts to Establish a Civil Right to Counsel.
There is a crisis in equal justice, as documented above, and advocates are pursuing litigation and legislative strategies that might force a change in prevailing practices. The resolution voices the ABA's support for these primarily state-law-based approaches. While it remains important to look for the right in federal due process and equal protection law as the ultimate objective, the resolution seeks to foster the evolution of a civil right to counsel on a state-by-state basis, rooted in the unique provisions of each state's constitution and laws. This approach is likely to achieve significant results and provide doctrinal support for a future reconsideration of the right to civil counsel under the federal constitution.
The Proposed Resolution Offers a Careful, Incremental Approach to Making Effective Access to Justice a Matter of Right, Starting with Representation by Counsel in those Categories of Matters in which Basic Human Needs Are at Stake.
The right proposed in this resolution is long overdue and deeply embedded in the nation's promise of justice for all. But it also represents an incremental approach, limited to those cases where the most basic of human needs are at stake. The categories contained in this resolution are considered to involve interests so fundamental and critical as to require governments to supply lawyers to low income persons who otherwise cannot obtain counsel. The resolution does not suggest that jurisdictions should limit their provision of counsel and other law-related services to these high-priority categories. Rather it indicates that in these categories they should guarantee no low income person is ever denied a fair hearing because of their economic status. In other categories of legal matters, it is expected that each jurisdiction will continue to supply legal services on the same basis as they have in the past.
The basic human needs identified in this resolution as most critical for low income persons and families include at least the following: shelter, sustenance, safety, health and child custody.
• "Shelter" includes a person or family's access to or ability to remain in an apartment or house, and the habitability of that shelter.
• "Sustenance" includes a person or family's sources of income whether derived from employment, government monetary payments or "in kind" benefits (e.g., food stamps). Typical legal proceedings involving this basic human need include denials of or termination of government payments or benefits, or low-wage workers' wage or employment disputes where counsel is not realistically available through market forces.
• "Safety" includes protection from physical harm, such as proceedings to obtain or enforce restraining orders because of alleged actual or threatened violence whether in the domestic context or otherwise.
• "Health" includes access to appropriate health care for treatment of significant health problems whether that health care is financed by government (e.g., Medicare, Medicaid, VA, etc.) or as an employee benefit, through private insurance, or otherwise.
• "Child custody" embraces proceedings where the custody of a child is determined or the termination of parental rights is threatened.