Author: Jack Londen


A Right to Counsel in Which Civil Cases?

In August 2006, the American Bar Association House of Delegates unanimously voted:

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.”

One of the premises of the ABA resolution, and the current impetus toward recognition of a right to counsel in civil cases, is that not all civil cases should trigger the right.  But which ones?  The ABA resolution identified a sole criterion – whether basic human needs are at stake.  Other selection criteria were not stated.  No doubt, many proponents would like to read the resolution as a commitment to providing lawyers in every case that would determine a person’s shelter, sustenance, safety, health or child custody – and certainly involuntary detention.  But the resolution can also be read as leaving the door open to the use of additional criteria that would exclude some civil matters even though these kinds of human needs and interests are involved.

Turner v. Rogers rejected the stakes of the interest involved as the sole selection criterion for invoking a due process right to counsel.  All nine Justices agreed that even though the human interest in personal liberty was at stake, it was overridden by other considerations.  The majority discussed three considerations:  (1) the straightforwardness of the rules of decision; (2) the unrepresented status of the opposing party; and (3) the adequacy of methods other than providing appointed counsel for avoiding incorrect decisions; and the Court’s reliance on Matthews v. Eldridge, 424 U.S. 319, 335 (1976), suggests another: (4) fiscal and administrative burdens on the government if it must provide counsel at public expense.

We are, I think, beyond the point where it is feasible to deny that any considerations other than the human interest at stake are relevant as selection criteria.  To the extent federal constitutional due process is the basis for the right, precedent leaves no room to deny that other criteria must be considered.  The Turner majority proceeds directly from the criteria for “what process is due” in Matthews.  While the first Matthews criterion, “the nature of the private interest that will be affected,” encompasses the ABA resolution’s criterion, the second Matthews factor is “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;” and the third is “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”  (Id.)

There is good reason to conclude, as John Pollack says, that state courts are more promising venues than federal courts for seeking recognition of the right.  That said, we should not expect states to differ with federal precedents about the relevance of the second and third Matthews criteria for assessing procedural due process claims.

The same is true, and more so, when we argue to executive officials and legislators that it would be good policy to provide publicly funded counsel in selected civil matters.  There are many valid arguments that can be made that, on the merits, the additional Turner considerations do not outweigh the reasons for providing counsel in civil proceedings with important human interests at stake.  But I cannot think of a persuasive argument why either a court or a legislature would accept an argument that those considerations are irrelevant.

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