What We Know and Need to Know About Civil Gideon

The legal profession has undertaken a renewed effort to improve access to justice for low- and moderate-income unrepresented civil litigants. The question of whether and how to provide assistance to individuals who cannot afford counsel is a pressing nationwide issue. Studies confirm that at most 20% of the legal needs of low-income communities are met and that the vast majority of low-income civil litigants are unrepresented, creating what some call a “justice gap,” which has become even more urgent in recent years. The recent recession hit indigent people hard, multiplying the civil problems they tend to face, such as home foreclosures, evictions, social security disputes, and nonpayment of child support. State tribunals that deal with high-stakes issues particularly relevant to low-income residents, such as family courts and housing courts, are seeing an increasing number of litigants, the majority of whom are unrepresented. Many of these pro se litigants live either below or within 125% of the poverty line, qualifying them for legal aid. Few, however, are actually able to access this aid. Recession-era cutbacks have left legal aid organizations with dwindling resources to meet a growing demand. Nationwide, for every 6,415 people who meet legal aid requirements, there is only one legal aid attorney available to meet their needs. To address the urgent and unmet legal needs of low-income Americans, the legal community is pursuing increased access to justice at the national, state, and local levels.For example, the Department of Justice launched an Access to Justice Initiative in 2010 and thirty-two states have “Access to Justice Commissions” tasked with the goal of ensuring that all litigants have a fair opportunity to be heard in civil court. The “Civil Gideon” movement aims to address the justice gap by advocating for an expanded right to counsel for pro se low-income civil litigants in cases implicating basic human needs. This movement asserts that systemic representation by counsel improves the accuracy of outcomes, increases court efficiency by reducing the effect of waves of pro se litigants on court staff, saves federal and state government money by helping to avoid the negative externalities caused by litigants wrongly losing their civil cases (such as increased use of shelters, emergency medical care, foster care, police, and public benefits), and increases the public’s faith and investment in the judicial process.The Self-Representation movement, by contrast, takes the position that political and economic constraints make it very unlikely that all those eligible can be afforded free counsel. It also questions the necessity of free counsel in every such case, pointing out that some legal matters may be more simplified there may be other forms of assistance (e.g., litigant-friendly procedures and judicial case management) that will suffice to facilitate access to courts, and that self-representation may be empowering to low-income litigants. Indeed, there are a plethora of assistance programs that range from providing limited forms of intervention — like informative websites, hotlines, layperson-friendly legal forms, and self-help centers — to full intervention, providing representation for indigent persons. While advocates for Civil Gideon do not claim that an attorney is essential in every case involving an unrepresented litigant, they place greater emphasis on securing a right to civil counsel than on increased resources and innovation for self-representation. Notwithstanding the increased attention and efforts directed at the broader access to justice agenda in the United States, there is still a great deal that we do not know about Civil Gideon. This Paper examines what we know and need to know about Civil Gideon. On the “what we know” front, the Paper examines Supreme Court jurisprudence addressing claims for a constitutional due process right to counsel in civil cases, existing state laws providing a right to counsel in civil cases, and current efforts and state legislation to expand the civil right to counsel. Addressing “what we need to know,” the Paper examines empirical research on the efficacy of legal representation in civil cases, the take up rate for appointed counsel in Civil Gideon jurisdictions, the costs of Civil Gideon both to the public and to civil litigants who utilize appointed counsel, and the administration of Civil Gideon.