Should Legal Representation For Fundamental Human Needs Cases Be A Right?

The Boston Bar Association recently released proposals to provide low-income people with a legal right to counsel in civil proceedings when certain fundamental human needs are at risk.  Criminal defendants already have a constitutional right to counsel while civil litigants often are forced to represent themselves.  "Gideon's New Trumpet: Expanding the Civil Right to Counsel in Massachusetts," proposes nine pilot projects to demonstrate economic cost savings and societal benefits of providing the civil legal representation in the areas of housing, juvenile, family, mental illness, and immigration law.

Underscoring the fact that state and federal laws and rules are simply not designed to accommodate an untrained party, the Boston Bar Association recently unveiled specific proposals to provide low-income people with a legal right to counsel in civil proceedings in which certain fundamental human needs are at risk. The proposals, which establish starting points in the areas of housing, juvenile, family, and immigration law – based on where the needs are most acute and the potential impact of not having legal representation is most devastating – are contained in Gideon’s New Trumpet: Expanding the Civil Right to Counsel in Massachusetts, a report drafted by the BBA’s Task Force on Civil Right to Counsel following nearly a year of study.

“Studies of courts and administrative agencies consistently show that indigent litigants without counsel routinely forfeit basic rights, not due to the facts of their case or the governing law, but due to absence of counsel. That violates even the most primitive concepts of fairness and decency,” said Ms. Ryan. “What few people realize is that if you are a poor person, and for example, you are about to be evicted from home or your child is about to be expelled from school, you do not have a legal right to counsel, and this needs to change.”

The report proposes nine different pilot projects -- spread across the state and described in detail in the report -- to demonstrate both the economic cost savings and societal benefits of providing civil legal representation. Some scenarios that would be covered: people with mental illness facing eviction for reasons related to their mental illness; children facing the prospect of exclusion from school; parents involved in a custody contest in which one parent is represented by counsel; un-befriended elders facing commitment to nursing homes; and asylum seekers facing deportation.

The report provides heart-rending, true case studies demonstrating the importance of civil right to counsel, including that of a woman facing eviction from public housing for alleged non-payment of rent who upon getting a lawyer learns that in fact the housing authority has overcharged her, and owes her a credit.

The report notes that approximately 15 per cent of Massachusetts’ six million residents have incomes below 125 per cent of the poverty line, and that although 965,000 of Massachusetts’ residents are eligible for free legal services, most of them are turned away because legal aid programs do not have the resources to assist everyone needing counsel. The report also cites an important study done in New York finding that with regard to eviction cases, every $1 spent on legal representation yields a $4 savings in shelter and other social service costs.

“Expanding the legal right to counsel in civil proceedings is hardly a radical concept, and we’re certainly not saying that every type of civil proceeding should entitle a low-income person to an attorney,” said Ms. Tyrrell. “ Massachusetts already has a few situations in which the Commonwealth does provide a right to civil legal aid, and that includes poor people facing termination of their parental rights.”

According to Ms. Ryan and Ms. Tyrrell, grant applications have been filed with a variety of private funding sources to enable the pilot projects to go forward. The goal is to demonstrate the value of the projects before seeking public funding.

- From: The Margolis & Bloom Weekly, September 08, 2008 and “Boston Bar Releases Plan to Expand Right to Counsel in Civil Cases”, BBA News Release, September 2, 2008, retrieved at: http://www.bostonbar.org/prs/nr_0809/ExpRight2Councel090208.htm.

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