The movement to create a right to counsel in civil cases won a big victory this week. On October 12, California Governor Arnold Schwarzenegger signed into law a bill entitled simply “Legal Aid.” The statute creates a series of pilot projects in which the courts will appoint counsel to indigent civil litigants in matters involving basic human needs. In addition, through the increase of court fees and certain fines a dedicated funding stream is created to ensure that existing resources are not drained to meet these new obligations.
The law includes extraordinary legislative findings: there is an enormous unmet need, failure of the State to provide counsel interferes with the administration of justice, the costs to the State of unresolved legal issues are greater than the costs of providing a lawyer, courts are more efficient when low-income litigants have a lawyer and the failure to provide counsel undermines confidence in the legal system. The Legislature concluded:
The doctrine of equal justice under the law is based on two principles. One is that the substantive protections and obligations of the law shall be applied equally to everyone, no matter how high or low their station in life. The second principle involves access to the legal system. Even if we have fair laws and an unbiased judiciary to apply them, true equality before the law will be thwarted if people cannot invoke the laws for their protection. For persons without access, our system provides no justice at all, a situation that may be far worse than one in which the laws expressly favor some and disfavor others
The California statute is a step towards the implementation of the ABA’s 2006 resolution supporting the creation of a civil right to counsel. The ABA urged “federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake.”
The Boston Bar Association has also embarked on a series of pilot projects. See, Gideon’s New Trumpet: Expanding the Right to Counsel in Civil Cases. The Boston initiative, while small, is focused on data collection that will likely yield useful information about the impact of appointed counsel.
To follow developments in the movement to create a civil right to counsel, check in frequently at: http://www.civilrighttocounsel.org/.