Table of Contents Table of Contents
Previous Page  8 / 48 Next Page
Information
Show Menu
Previous Page 8 / 48 Next Page
Page Background

SIDE | BAR

8

New ABA Resource Outlines All Authority in Each State

for Appointing Counsel in Civil Cases

By John Pollock

1

I

n its most recent edition of the Rule of Law Index, the World

Justice Project ranked the United States 65th out of 102

countries on access to and affordability of civil justice, lower

than every European country except Kazakhstan. This ranking

follows in the wake of repeated “Justice Gap” reports by the

Legal Services Corporation estimating that four out of every five legal

needs of low-income people go unmet.

The judiciary is no stranger to this crisis: it is on the front lines facing

the waves of pro se civil litigants engulfing the courts. Many state court

judges have expressed frustration at their inability to provide assistance

to such litigants, due to the need to remain impartial. And it is true that

while the right to counsel for criminal defendants at risk of incarceration

is well established due to

Gideon

and its progeny, the U.S. Supreme Court has not yet recognized a right to

counsel in civil cases other than in the juvenile delinquency context. But all of the states require or permit

the appointment of counsel in various types of civil cases based on a mixture of statutes, federal and state

constitutional decisions, and court rules. There are also some federal appointment statutes that apply to

state courts.

State court judges, however, may not be aware of all of these sources of authority. Some derive from

state statutes that are either ancient or located in obscure portions of state code. Other authority comes

from unpublished cases that still carry precedential value in the jurisdiction, or from a lower court. Other

cases or statutes may establish a general authority to appoint that is little known or underutilized. In order

to increase awareness, the American Bar Association (ABA), with the help of the National Coalition for a

Civil Right to Counsel (NCCRC), created the

Directory of Law Governing Appointment of Counsel in State

Civil Proceedings

. This new resource (available at

http://www.ambar.org/civilrighttocounsel

) has an entry

for each state explaining which types of civil cases (such as child welfare, termination of parental rights,

civil commitment, paternity, housing discrimination, and so on) either require, permit, or do not permit

appointment of counsel in that state, and the legal authority (statute, court decision, court rule) behind it.

The

Directory

is a companion resource to the NCCRC’s interactive map,

http://www.civilrighttocounsel.org/ map ,

which allows visitors to select a subject area and see a quick snapshot of which states do and don’t

provide authorization for appointing counsel.

Besides ensuring that a judge is aware of all existing appointment authority, the

Directory

confers several

additional benefits. First, where state law does not address appointment of counsel one way or another for a

certain subject area, a judge can examine how courts in other states have addressed that subject area from

a constitutional perspective to see if a similar conclusion is merited for the judge’s state. This is consistent

with the ABA’s position that expanding the right to counsel in civil cases can help close the justice gap. In

2006, the ABA House of Delegates approved Resolution 112A, which “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.” This resolution was