But even in the case of those fundamental rights and other ancillary rights such as due process and equal protection, they are embodied in the constitution solely as a reminder of the limitations on the power of government to interfere with those rights, not as a mandate for government to enforce those rights as between private contestants. Where an alleged property interest is threatened by a private party, rather than the government, the question of whether an indigent litigant has a right to counsel at public expense has been answered in the negative by our state s Supreme Court. In both cases, the Court held that the indigent litigants were entitled to attorneys at public expense, but the court reached its conclusion based on two separate statutes providing for the appointment of counsel for indigents, and thus did not reach the issue of whether they had a constitutional right to counsel. I would suggest that the government already does enough to provide representation for indigents without setting up another welfare program to serve the dual purpose of providing full employment for lawyers. There is a certain social utilitarianism associated with having to pay to fight.
Several possibilities emerge.
The Bar, regulated primarily by the State Supreme Court, could institute a pro bono program requiring some participation by all attorneys in the interest of community service. Maybe some CLE hours could be satisfied by providing pro bono services. A fourth possibility might be to alter the current rigidly adversarial approach to justice. Courts of law with all their procedural and evidentiary rules and interpretations have almost become arenas of sophistry and theatrics, where justice is a casualty rather than an achievement. Finally, there is always the possibility of insurance a privately funded program providing for representation in those cases where an otherwise indigent litigant could not afford retained counsel.