50 years after Gideon: Moving towards a civil right to counsel

Issue May 2013 By Barbara Mitchell

Imagine being a single parent of young children, facing serious illness, loss of employment due to that illness, the consequent loss of health insurance, and an eviction, all within a few months. As a lawyer, you would ask what legal remedies might be available and then seek an attorney to help. But many citizens of our commonwealth do not know their legal rights and can't find affordable legal assistance.

Daniele Bien-Aime faced all of these issues in 2011. As she told 650 lawyers and other supporters at this year's Walk to the Hill for Civil Legal Aid, missing work for breast cancer treatment cost her job. That meant not only losing her income, but also the health insurance that was essential to continue chemotherapy. With no income, she couldn't pay her rent and her landlord attempted to evict her.

Luckily, Daniele obtained legal help from South Coastal Counties Legal Services (SCCLS). Her legal aid lawyer contacted the employer, asserting Daniele's right to accommodations under the Americans with Disabilities Act and requesting her job be reinstated. The employer initially refused, but Daniele's attorney convinced the employer to rehire her and offer time off to finish chemotherapy. The attorney also successfully negotiated a settlement with Daniele's landlord, who dropped the eviction lawsuit. Daniele and her daughters remain in their home; she has finished her chemotherapy; and is now cancer-free and back at work.


Daniele is one of thousands in Massachusetts who face loss of basic human rights -- housing, health care, custody of children -- but who have no right to a lawyer to represent them. Daniele was lucky: Others are not able to. Legal services programs turn away over half of the low-income individuals seeking assistance. As we mark the 50th anniversary of Gideon v. Wainwright1 -- which established the right to counsel for indigent defendants in criminal cases -- and remember Anthony Lewis, who passed away in March, author of Gideon's Trumpet, it is striking that no comparable right to counsel exists for civil litigants, even when basic human rights are at stake.

More than 46 million people in the U.S. live below the poverty line ($24,413 annually for a family of three2) and millions more survive on incomes any reasonable measure would consider poor. Many have physical ormental disabilities or other barriers to successful self-representation. According to the World Justice Project, a nonprofit group promoting the rule of law, the United States ranks 66th of 98 countries in access to and affordability of civil legal services.3


Pro se litigants dominate the dockets of most civil courts. In Massachusetts, most family law cases involve at least one party without counsel. Ninety to 95 percent of tenants are unrepresented in eviction cases4, and most debtors appear in court without counsel. Unrepresented litigants typically are poor and frequently cite the inability to afford an attorney as reason for appearing pro se5. Studies indicate representation can be the crucial factor in having a positive case outcome. Retired Chief Justice Margaret Marshall has spoken about the critical need for representation in cases where basic human rights are at stake:

Access to justice is best secured by -- and perhaps requires -- a lawyer. In Massachusetts, we provide lawyers free of charge to those accused of a crime if they cannot afford one, through the state-funded public defender system. As a retired Chief Justice of the Massachusetts Supreme Judicial Court, I know that this system - while not perfect - protects the basic rights of those accused of a crime by ensuring that they have access to a competent lawyer. But there is no similar guarantee of representation for thousands of our most vulnerable residents confronted with non-criminal civil actions in which their most basic rights are also at stake. We do not provide lawyers, for example, to families threatened with wrongful eviction, or to battered women seeking restraining orders, or to senior citizens who challenge the improper denial of Medicare benefits. They are often on their own, left to fend for themselves without legal assistance in a complex adversarial system in which the party with a lawyer has the clear advantage. These impoverished litigants need the help of lawyers just as much as those accused of committing a crime.6

Not only do individuals who represent themselves face many challenges, but the court system faces additional administrative burdens as a result of the high number of pro se litigants. Massachusetts courts are under enormous pressure due to fiscal constraintsand are called on to handle more cases in which the parties appear pro se. Clerk office staff, spend more time helping pro se litigants, explaining procedures and answering questions. Cases often take much longer as judges in courtrooms provide guidance to unrepresented or inexperienced pro se litigants.

The provision of legal assistance to low-income clients creates significant savings for the state and real benefits for individuals. The Massachusetts Legal Assistance Corp. (MLAC) determined that in fiscal year 2012, MLAC-funded legal aid programs brought $27 million in new federal revenues to the commonwealth, won $10.7 million in other benefits for low-income residents and saved the state roughly $9.9 million by preventing homelessness and domestic violence.7 The commonwealth's appropriation for MLAC was $12 million; but because the need is so great, more dollars spent on providing representation would produce additional savings.


The U.S. Supreme Court has reviewed the parameters of the right to counsel, in Turner v. Rogers8, and has set federal guidelines, but has not constitutionally mandated states to appoint attorneys for indigent litigants. A civil right to counsel does exist in limited circumstances under some state laws. In Massachusetts, attorneys are appointed in care and protection proceedings, termination of parental rights, mental health commitments and substitute judgment/involuntary treatment situations. Massachusetts's revised Uniform Probate Code provides a qualified right to counsel for persons facing potential appointment of a guardian or conservator. But in many other areas, there is no right to counsel.

Ironically, a domestic violence victim will watch her abuser receive free counsel if he is indigent, but has no right to a free attorney to help her protect herself and her children from future harm.9 Recently, advocates around the country have joined together to expand the right to counsel in civil cases for low-income individuals. They organized the National Coalition for a Civil Right to Counsel (NCCRC) to provide information-sharing, training, networking, coordination, research assistance, and other support. The coalition has more than 100 participants from 30 states, including legal services, private lawyers, state bar associations, law schools, national strategic centers and state access to justice commissions.

In 2006, the ABA became a major proponent of broadening the civil right to counsel. At the coalition's request in 2005, the ABA Standing Committee on Legal Aid and Indigent Defendants (SCLAID) examined the concept of a right to counsel in certain civil cases and began developing draft language. A task force considered how the ABA could promote the expansion of the civil right to counsel as an essential component of equal justice under law. The MBA, as well as the Boston Bar Association and the Massachusetts Access to Justice Commission supported the resolution. The task force proposed a resolution adopted by the ABA House of Delegates in August 2006:

RESOLVED, That the American Bar Association urges state, territorial and federal jurisdictions to provide 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.

The ABA resolution is carefully weighted. Many would have preferred to urge a right to counsel in all significant legal proceedings, but the resolution stops at cases in which the most basic of human needs are at stake. Even in such cases, it is viewed as appropriate to explore a range of other actions before providing counsel, including changes to procedural rules, revised roles for court personnel or implementation of limited assistance programs.


Here in Massachusetts, the Massachusetts Bar Foundation, Boston Bar Foundation, and the Boston Foundation supported two pilot projects to study the effectiveness of representation in eviction cases. These projects followed the 2008 report issued by the Boston Bar Association, Gideon's New Trumpet, in which the Task Force on the Civil Right to Counsel made recommendations for providing representation in four substantive law areas (housing, family, juvenile and immigration law). The task force recommended pilot projects that would provide more information on the best mechanisms for providing counsel, the impact of creating a right to counsel, the costs associated, and the potential cost savings to the commonwealth.

The pilot projects were conducted in Quincy District Court with attorneys from Greater Boston Legal Services, and in the Northeast Housing Court in Lowell and Lynn with attorneys from Neighborhood Legal Services. The target population for the projects included low-income tenants who faced eviction related to mental disabilities, criminal activity and those with potentially meritorious cases jeopardized by extreme power imbalances between the tenant and landlord.

The findings of both pilots confirmed assistance from attorneys is critical in helping tenants preserve their housing and avoid homelessness, including the costs, to tenants and to society that are associated with homelessness.10 The report concludes that "the results of the randomized study in Quincy provide perhaps the strongest evidence ever developed of the positive impact of full representation for tenants facing eviction.11" The results in the Northeast Housing Court were consistent.

A second round of eviction defense pilot projects recently was funded with a Crisis Response and Innovation Grant from the Office of Attorney General. The HomeCorps Homelessness Prevention Project will provide free legal representation to tenants in certain eviction cases in Worcester Housing Court with attorneys from Community Legal Aid and Massachusetts Justice Project, and in Framingham District Court with attorneys from MetroWest Legal Services with management from Massachusetts Law Reform Institute. The pilot will be carefully evaluated to measure its impact.

Those of us who appear in court see clearly how critical good advocacy is to the outcome of a case. We know how important it is to the functioning of our justice system. The support of the MBA for the current effort in Massachusetts, designed to provide representation in cases where basic human needs are at stake only full representation will ensure access to justice, will continue to be critical.

This article was produced with the helpful assistance of Jayne Tyrrell and Susan Anderson

1372 U.S. 335 (1963)
3Ethan Bronner, Right to Lawyer Can Be Empty Promise for Poor, New York Times, March 15, 2013.
4Boston Bar Association Task Force on the Civil Right to Counsel, The Importance of Representation in Eviction Cases and Homelessness Prevention, March 2012, 3
5Russell Engler, Turner v. Rogers and the Essential Role of the Courts in Delivering Access to Justice,
6Margaret Marshall, Provide Legal Support to Those Most Vulnerable, Boston Globe, Oct. 29, 2011.
8131 S. Ct. 2507 (2011).
9Mary Schneider used this example in her article, Trumpeting Civil Gideon: An Idea Whose Time Has Come?, Bench & Bar of Minnesota, October, 2006
10Boston Bar Association Task Force on the Civil Right to Counsel, supra, n. iv.
11Id. at.32