Securing a Civil Right to Counsel: The Importance of Collaborating

Introduction

No gathering of the Judiciary, academics, or the practicing bar addressing collaborations intended to further access to justice would be complete without a discussion of the right to counsel in civil matters. As all-powerful arbiters of the fates of litigants, as teachers of those who will hold the keys to access to the courts, as monopoly gatekeepers to the courts, and, collectively, as those called upon to defend the system we call “justice,” we hold an awesome responsibility. We are responsible for the system that determines the application of the rule of law and the resolution of human conflicts that affect life, income, family, health, community, and other fundamentals. After more than 200 years of constitutional democracy, the United States has developed an increasingly complex and adversarial system of dispute resolution. The system is structured to require legal counsel for meaningful access. Yet the number of those who cannot afford counsel in the face of increasingly serious legal disputes–disputes with enormously serious consequences upon lives and well-being-is rising. This is unacceptable. This Article argues that the most important collaboration in the interest of “access to justice” is one that seeks to correct the single greatest impediment to a truly just system: the lack of a civil right to counsel. Public policy, the fair administration of justice, constitutional and statutory law, and a growing international consensus on the human right to a fair hearing all support the proposition that there should be a right to counsel in the civil as well as the criminal context. Perhaps the strongest case for a civil right to counsel in New York can be made for tenants who face eviction from their homes. New York City’s Housing Court, for example, is unable to fairly and impartially administer justice because most of its litigants, who face eviction, are not able to defend their interests meaningfully because they need legal assistance but cannot afford counsel. Yet, many of the same considerations that warrant a right to counsel in eviction proceedings support a right to counsel in other civil proceedings involving important rights and interests. Other housing matters (e.g., foreclosure or disputes over building conditions that render dwellings uninhabitable) and domestic relations matters (e.g., divorce or domestic violence), legal proceedings involving loss of employment, disability benefits or other government assistance, and deportation all involve complex litigation, extraordinarily important individual interests, and a cost-benefit balance that mitigates in favor of assuring there are adequate procedures, including the availability of counsel, to protect individual interests.

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