Page 15 - Impact: Collected Essays on Expanding Access to Justice

important benefit, it does not confer a right or an entitlement, and the benefit can be denied or terminated at will and with impunity .
When access to counsel is dependent on funding, as it is for people who cannot afford to pay for counsel, the true “gatekeeper” for access is the provider of funding for the service . The City of New York has now become the primary funder of legal assistance to low-income tenants who face eviction in the City and in the absence of a right, can choose to continue to provide the funding and continue the service or not . The city and other government and nonprofit funders of legal assistance delegate the gatekeeping task to the nonprofit legal organizations that provide the service, so that when low-income tenants facing eviction are turned away and denied services by the nonprofit providers, they experience the providers as the gatekeepers because they hear the word “no” directly from them . But the providers are merely the instruments; they can only do as much as their available resources allow . The real control over access is held by the funder(s) . When legal assistance becomes a governmentally–recognized-and-provided “right,” a “court of justice,” and not the city or the provider becomes the gatekeeper, and the beneficiary of the right can compel government to provide the assistance or, as in this context, compel the government to fund the provision of the service . This ability to enforce thus represents a fundamental shift of power to people who previously lacked it .
The right to counsel is a “civil right” in the sense that it is a right that pertains to an aspect of our justice system that is understood to be “civil” as opposed to “criminal .” It is also a “civil right” in the sense that it is a right deeply connected to the movement for civil rights, equality and human dignity for all the reasons set forth below . As one legal dictionary definition states, “[a] civil right is an enforceable right or privilege, which if interfered with by another gives rise to an action for injury . Examples of civil rights are freedom of speech, press, and assembly; the right to vote; freedom from involuntary servitude; and the right to equality in public places .”10 A right not to be deprived of a meaningful opportunity to defend one’s home in the courts because of one’s poverty fosters equality and, in protecting the ability to have a home, protects the ability to exercise many other of the important civil rights, such as the right to vote and the right to equal opportunity in work and education .
Fairness has long been seen as a core element of what constitutes a “right” and there is certainly a general intuitive sense of fairness about having a right to counsel in a civil legal matter with as significant a consequence as eviction from one’s home . When polled, many Americans simply assume that there is a right to counsel in such cases as there is in criminal proceedings .11 Under the theory of natural rights, the rights we believe we are entitled to as members of society are the rights entitled to recognition . According to the French legal philosopher, Maurice Villey, “[t]o give someone his right (suum jus) meant in the classical world to give him ‘what he deserved,’ ‘his due .’ What was due to the individual in society? His just share (‘le part juste’, ‘le bon partage’) . Here, said Villey, was the meaning of classical natural right: a just or fair share for every individual of society’s benefits and burdens .”12
10 Cornell university Law School, Civil Rights, legal informaTion insTiTuTe, https://www.law.cornell.edu/wex/Civil_rights (last visited Mar. 9, 2016).
11 bosTon bar associaTion Task force on The ciVil righT To counsel, The imPorTance of rePresenTaTion in eVicTion cases and homelessness rePresenTaTion 1 (2012), available at http://www.bostonbar.org/docs/default-document-library/bba- crtc-final-3-1-12.pdf.
12 hutson, supra note 7, at 189–90.
Specific Areas for Reform: Housing
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