Deconstructing the Right to Counsel

Energized by the fiftieth anniversary of Gideon v. Wainwright, and in light of the nearly one million low-income Americans who are denied legal aid services each year, renewed calls to expand the right to counsel to civil litigants have emerged. Lucas explains that there are “numerous ways in which Gideon’s promise has fallen short” in the criminal realm and, as a result, there is little consensus about how to proceed in the civil context. The Issue Brief explores the range of ideas in the “civil Gideon” debate and examines why the values underlying the right to counsel are critical but the appointment of counsel may not always be the best solution.

Scholars and practitioners alike have suggested a variety of solutions to the civil legal services gap, including grounding a general right to counsel in state or federal due process provisions, providing discrete instead of full-service legal assistance, creating online tools for filing and self-help, and forming a new independently enforceable “access to justice” right. Rather than inserting another remedy into this already crowded mix, Lucas argues that we will be best served by deconstructing the right to counsel and using a value-based framework to “broaden and organize the debate.” The Issue Brief “distills the right [to counsel] down to its core elements”—access, fairness, efficiency, and legitimacy—and proposes that these values be used to evaluate current recommendations. Recognizing the dearth of resources available to civil legal services providers, Lucas suggests that, depending on the needs of a particular case or client, non-lawyer proposals may be not just viable alternatives but the most effective and efficient options.

Read full issue brief here: Deconstructing the Right to Counsel

By Lauren Sudeall Lucas