Page 83 - Impact: Collected Essays on Expanding Access to Justice

expanding Access to Justice: Alternatives to full representation in NewYork state
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randal Jeffrey1
Ever since the Supreme Court handed down its landmark 1963 decision in Gideon v. Wainwright2 establishing the right to counsel at state expense in criminal cases, those concerned with access to justice have advocated for an extension of this right to counsel in civil cases .3 While the Supreme Court has extended the right to counsel past the specific holding in Gideon, including to certain “quasi-criminal” cases, it has never interpreted the United States Constitution to require that the government provide a lawyer in purely civil cases .4 Thus, the provision of counsel to those who cannot afford an attorney has been left to a patchwork of programs throughout the country . In New York State, this “justice gap” is being filled in three ways: efforts to establish the right to counsel for particular types of civil cases; increases to civil legal services funding; and alternatives to full representation that contribute to filling in this justice gap .
This essay argues that, in a world where on the one hand low-income families and individuals face pervasive civil legal services needs and on the other hand there are limited financial resources, alternatives to full representation play an important and effective role in expanding access to justice . This essay will explore these alternatives in New York State . After briefly discussing the efforts to implement a right to counsel in civil cases and to increase funding for civil legal services, this essay will more closely examine a range of programs that provide alternatives to full representation and will discuss their import .
Civil Gideon:The Pursuit of a right to Counsel
The most robust way to ensure that those who cannot afford an attorney have the most comprehensive access to justice is through the provision of full representation as a right . The right to counsel in civil court has gained increased attention throughout the United States in
1 Randal Jeffrey is General Counsel for the New York Legal Assistance Group (“NYLAG”), which provides free civil legal services to low-income New Yorkers. he served as Director of the General Legal Services unit at NYLAG from 2003 until 2016, and was a staff attorney in NYLAG’s Special Litigation unit from 1998 until 2003.
2 372 u.S. 335 (1963).
3 See Russell Engler, Reflections on a Civil Right to Counsel and Drawing Lines: When Does Access to Justice Mean Full Representation by Counsel, and When Might Less Assistance Suffice?, 9 seaTTle J. for soc. JusT. 97, 102 (2010); see also, e.g., Note, The Right to Counsel in Civil Litigation, 66 colum. l. reV. 1322 (1966).
4 Compare, e.g., In re Gault, 387 u.S. 1 (1967) (extending Gideon to juvenile delinquency proceedings); Argersinger v. hamlin, 407 u.S. 25 (1972) (extending Gideon to misdemeanors when the defendant may be incarcerated as the result of a conviction), with, e.g., Turner v. Rogers, 564 u.S. 431 (2011) (holding that the state does not need to provide counsel in all civil contempt proceedings, even if the proceeding may lead to incarceration); Lassiter v. Department of Social Servs. of Durham Cty., 452 u.S. 18 (1981) (holding that counsel need not be appointed in a parental rights termination proceeding). Of course, the Sixth Amendment provides for the right “to have the assistance of counsel” in criminal prosecutions, u.S. consT. amend. VI, a specific provision on which those advocating for the right to counsel in civil cases cannot rely. Instead, these advocates rely on the more general Due Process Clause. In addition, individual states may establish a broader right to counsel under their state constitutions. For example, before Lassiter was decided, the New York State Court of Appeals extended the right to counsel to parents facing child neglect proceedings in In Re Ella B., 30 N.Y.2d 352 (1972). This judicial extension received statutory codification in the Family Court Act section 262, which also provides a right to assigned counsel in contempt proceedings, such as for a willful violation of a child support order. N.Y. family courT acT § 262.
Alternative Models