"Civil Gideon": Should There Be a Right to a Lawyer in Civil Cases?

Gideon v. Wainwright, 372 U.S. 335 (1963), guarantees a lawyer to a person accused of a serious crime who cannot afford one. But most of the legal problems people face, such as evictions, custody disputes, debt collection, and benefits cases, are civil. In those cases there is generally no constitutional right to appointed counsel.

What the Supreme Court has said

• In Lassiter v. Department of Social Services, 452 U.S. 18 (1981), the Court held that the Constitution does not automatically require appointed counsel for a parent facing termination of parental rights. Courts must decide case by case.
• In Turner v. Rogers, 564 U.S. 431 (2011), a father was jailed for civil contempt over unpaid child support. The Court held that due process did not automatically require a lawyer when the other side was also unrepresented, but did require alternative safeguards, such as clear notice that ability to pay is the key issue and a finding on whether he could pay.

The case for a broader right

Supporters of a "civil Gideon" argue that:

• Housing, family integrity, and income are basic needs, and losing them can be as serious as a short jail sentence.
• People without lawyers are at a disadvantage when the other side is represented.
• Representation early in a case can prevent costlier problems later, such as homelessness.

In 2006 the American Bar Association urged governments to provide counsel to low-income people in civil cases involving basic human needs. Several cities have since created a right to counsel for tenants facing eviction, starting with New York City in 2017.

The case for caution

Others raise concerns:

• Cost. Providing lawyers in every civil case would be very expensive, and budgets are limited.
• Alternatives. Some argue that simpler procedures, self-help centers, and limited-scope help can serve more people for the same money.
• Fairness to all parties. In cases like Turner, the other side is often an unrepresented parent too, and appointing a lawyer for only one side could create a new imbalance.

Where things stand

There is no national civil right to counsel. Coverage depends on where you live and the kind of case. Some states and cities provide counsel in certain eviction, custody, or guardianship cases. Others rely on legal aid, which often has more requests than it can meet.

Food for Thought

• If you could fund lawyers for only one kind of civil case, which would you choose, and why?
• Is it fair to appoint a lawyer for one unrepresented parent but not the other?
• Would simpler court procedures do more good than more lawyers, or is that a way of avoiding the harder question?

How Kasecraft can help

Whatever the policy debate, many people will represent themselves this year. Kasecraft's Services connect you with members who have been through similar cases for peer support (not legal advice), and the ChatRoom offers moderated topic rooms for encouragement and practical tips.