Page 124 - Impact: Collected Essays on Expanding Access to Justice

Access to Justice is more Than the right to Counsel: The role of the Judge in Assisting unrepresented Litigants
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Paris r. Baldacci1
The struggle to guarantee a right to counsel in civil matters has recently been in the forefront of access-to-justice literature and activism . New York has led this initiative . For example, a bill that would guarantee counsel to a significant number of poor people facing eviction or foreclosure in a variety of civil fora is pending before New York City’s City Council (Intro 214-A) .2 New York’s state legislature adopted a concurrent resolution (C776/B2995) that commits the State to ensuring “adequate” and “effective” legal representation as essential to the “ideal of equal access to civil justice for all .”3 Similar legislative and litigation initiatives have sprung up throughout the country .4
This emphasis on the right to counsel as key to equal access to justice is not surprising . Our adversary system presumes representation by counsel . Indeed, in the seminal due process case, Goldberg v. Kelly, the Supreme Court reasoned that, “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel .”5 Scholars have consistently noted that this inherent need for counsel is the result of our system’s very structure, procedurally and substantively:
The design of a legal system that cannot be operated by laypeople is surely the result of state decisions, indeed, of the accretion of hundreds of millions of state decisions . Moreover, the inability of poor people to afford lawyers is also the result of choices made by the state, both formalistically as a matter of law and also as a matter of plain fact . . . . [T]he selective exclusion of the poor from the legal system does not simply fail to confer an advantage on them— it actively injures them .”6
However, in spite of the success of some recent right-to-counsel initiatives, it will be a significant time before even the limited populations covered by those initiatives will have access to counsel . In addition, there is no prospect for the enactment and funding of a general right to counsel in all civil proceedings . Thus, courts will continue to be faced with millions of unrepresented litigants for the foreseeable future . Indeed, the access-to-justice movement has from its inception recognized this fact and, thus, looked to multiple strategies, other than the right to counsel, to assure equal access to justice to the unrepresented litigant; for example: disseminating legal
1 Paris R. Baldacci is a Clinical Professor Emeritus of Law, Cardozo School of Law. he was the founder and director of Cardozo’s housing Rights Clinic from 2009 until 2015; prior to that he was a supervising attorney in the Law School’s Bet Tzedek Legal Services Clinic. he has written and lectured widely on the role of judges in assisting unrepresented litigants.
2 Int. No. 214-A-2014, new york ciTy council, http://legistar.council.nyc.gov/LegislationDetail. aspx?ID=1687978&GuID=29A4594B-9E8A-4C5E-A797-96BDC4F64F80.
3 Concurrent resolution no. C776/B2995, N.Y.S. Assembly & Senate (2015), https://www.nysenate.gov/legislation/ resolutions/2015/b2995.
4 See the website of the National Coalition for a Civil Right to Counsel, http://civilrighttocounsel.org/map, for up-to- date coverage of these developments.
5 Goldberg v Kelly, 397 u.S. 254, 270 (1970).
6 daVid luban, lawyers and JusTice: an eThical sTudy 246-47 (1988).
Impact: Collected Essays on Expanding Access to Justice