The Importance of the Right to Legal Representation

A lower court injunction blocking President Trump’s executive order banning people from seven predominately Muslim countries from traveling to the United States, temporarily suspending the nation’s refugee resettlement program and indefinitely banning refugees from Syria was argued last week before the U.S. Court of Appeals for the 9th Circuit. On Friday, the court upheld the Washington district court’s decision, much to the president’s displeasure.

During the short time the ban was in place thousands of protesters flooded airports across the country. Many of these individuals were lawyers who came to assist those who were being deported or denied entry, or who had valid visas allowing them to enter the United States. Numerous news outlets reported that in some instances airport detainees were being denied access to counsel.

Civil detainees in this country generally do not have a “right” to counsel. A right to counsel means that if a person cannot afford to hire an attorney, one will be provided for them at no expense. The courts have recognized a constitutional right to counsel in criminal cases since 1963 when the U.S. Supreme Court decided Gideon v. Wainwright. The holding in Gideon has been interpreted over time to in include a right to counsel in some civil cases including competency and civil commitment cases. In other words, cases where, if a person lost, they could be hospitalized or imprisoned. Because of the potential for a “substantial loss of liberty” courts have determined that the Sixth Amendment requires the government appointment counsel for those who cannot afford representation.

The American Bar Association has been championing the concept of “civil Gideon” for at least the past decade. The concept has been applied to every kind of civil case but lawyers who practice immigration law have advocated particularly hard for the appointment of counsel. Why? There are many reasons.

First of all, immigration proceedings in this country are complex. Would be immigrants who don’t speak English and who may or may not be familiar with the U.S. legal system are at a significant disadvantage.  Some studies have shown that 3 percent of the people seeking to stay in this country are successful when they represent themselves, where 18 percent are successful when they are represented by counsel.

But the concern goes way beyond immigration cases.  Lawyers, and in particular good lawyers, are expensive. More and more members of the middle class and small businesses cannot afford lawyers to assist them in the courts. Circumstances are worse for low-income families. One study found that four-out-of-five civil legal needs for low-income families were not being addressed.

Coupled with the costs of litigation is the complexity of the legal system. Most lawyers in this country practice in one or two narrowly defined legal fields. Why? The laws are so complex it is impossible to be proficient in everything. So a lawyer who drafts wills and trusts is generally not sufficiently familiar with environmental regulations to provide advice on a case involving California’s Environmental Quality Act (CEQA). Just like a lawyer who practices intellectual property law would not be the ideal person from whom to obtain information on a divorce.

For regular people trying to navigate the courts, the legal system is dauntingly complicated especially because judges are ethically prohibited from giving legal advice to people who represent themselves and court staff, who are not lawyers, are legally prohibited from giving such advice.

When the U.S. Supreme Court issued its ruling in Gideon, the court wrote that providing counsel to those too poor to afford counsel is “fundamental and essential to a fair trial.” That statement is no less true when applied to a civil case, especially if the opposing party in the case is represented by a lawyer.

The problem is not whether or not civil litigants should be provided counsel. Courts and commentators across the country agree at least in theory. The problem is where to find the money to provide lawyers in a vast array of civil cases.

In reality we as a society are probably already spending the same money in other ways.  For example, people who are evicted from their homes find themselves living in government funded shelters. The failure of a court to issue a restraining order in a domestic violence case, because the person applying for the order didn’t explain the violence clearly enough for a judge, end up in publically funded hospitals. Immigrants who would have qualified for asylum but didn’t because they couldn’t explain what happened in their native country find themselves in federal prisons after being convicted of illegally re-entering the country.

Perhaps the biggest savings to be found is this: restored faith in our courts. The gap in justice has undermined confidence in our courts and our justice system. People think the courts only serve the rich – those who can afford lawyers to defend their interests. The only way to restore faith in the legal system is to make it accessible to everyone. All people who live in the European Union have had the right to legal counsel in civil cases for decades. If we as a society truly believe in the words of the Pledge of Allegiance; “…truth, liberty and justice for all,’ we must provide access to justice for all.

We need the “so-called” judges and we need the “so-called” lawyers.