Celebrating the 'null' finding: evidence-based strategies for improving access to legal services.

• Author: Charn, Jeanne
• Position: Symposium on Gideon v. Wainwright

ESSAY CONTENTS INTRODUCTION I. LEGAL SERVICES IN THE UNITED STATES: FROM LAW REFORM TO RIGHT TO COUNSEL A. Legal Services, Law Reform, and Controversy: 1965 to 1980 B. The Civil Gideon Movement C. The New Legal Services Landscape II. THE LIMITS OF THE CIVIL GIDEON MOVEMENT A. Supreme Court Jurisprudence B. Findings from Access-to-Justice Research 1. The Added Value of Lawyer Representation 2. Understanding the Consumer Perspective C. Lessons from the English Experience III. TOWARD CONSUMER-CENTERED, EVIDENCE-BASED LEGAL SERVICES A. Practical Problems with Civil Gideon B. Conceptual Problems with Civil Gideon C. An Alternative Approach: Evidence-Based, Self-Help-Centered Services CONCLUSION: CELEBRATING THE NULL FINDING INTRODUCTION

Half a century ago, the Supreme Court held in Gideon v. Wainwright (1) that an indigent defendant in a criminal proceeding is entitled to counsel at state expense. No similar categorical right exists for a civil litigant, no matter how consequential the stakes. Among the wealthy market democracies, the United States is the only nation that does not guarantee access to a lawyer in civil matters. What explains our nation's outlier status? Should achieving a civil Gideon be the main policy goal of the access-to-justice movement in the United States? What is the current policy agenda of peer nations that have had an entitlement to counsel for decades?

In Part I, I describe how the origins of civil legal aid in the racial-justice and antipoverty struggles of the 1960s shaped early law-reform and systemic-change goals. When a conservative backlash threatened the existence of federally funded legal services, defenders of the program shifted to an access-to-justice rationale that produced many changes in the legal services landscape and, eventually, a civil Gideon movement. In Part II, I critically examine the civil Gideon idea in light of Supreme Court jurisprudence, empirical research findings, and the experience of peer nations. In Part III, I argue that civil Gideon is not an adequate policy response to unequal access to the legal system and propose continued reforms to enable self-help and "lawyer-lite" services. I also suggest that greatly expanded access to law and its remedies is best understood not as a normative issue, but as a public policy problem that will yield to the tools of public policy analysis and research.

1. LEGAL SERVICES IN THE UNITED STATES: FROM LAW REFORM TO RIGHT TO COUNSEL

   The founders of government-funded civil legal services in the United States were not interested in a right to counsel. They intentionally shaped the program to achieve substantive antipoverty goals rather than access goals. Over time, this policy choice produced fierce conservative opposition that led legal services advocates to reframe their movement in terms of access to justice. With federal funding stagnant and the civil Gideon movement producing few successes, courts and legal aid offices had to find ways to meet the needs of growing numbers of unrepresented claimants. They developed new service approaches that, of necessity, depended less on conventional, lawyer-centered representation. Over time these innovations produced a more complex legal services landscape in which self-help and other lawyer-lite services have become commonplace.

   1. Legal Services, Law Reform, and Controversy: 1965 to 1980

      In 1965, two years after the Supreme Court decided Gideon v. Wainwright, government-funded legal services were established in the United States as part of the Johnson Administration's War on Poverty. (2) The culture in the 1960s supported an overtly political agenda for "a new breed of lawyers ... dedicated to using the law as an instrument of orderly and constructive social change." (3) Washington leadership made law reform and test cases the strategic priority for the Office of Economic Opportunity (OEO) legal services lawyers, and it evaluated grantees based on the law-reform cases they pursued. (4) The first President of OEO Legal Services, Clinton Bamberger, announced to a national meeting of state bar presidents that the goal of the program was to "contribute to the War on Poverty" and "to marshal the forces of law and the strength of lawyers to combat the causes and effect of poverty." (5) Ultimately, the goal of the program was to "remodel the system which generates the cycle of poverty and design new social, legal and political tools and vehicles to move poor people from deprivation, depression and despair to opportunity, hope and ambition." (6)

      This policy choice faced strong opposition from leaders of the solo and small-firm bar who supported the English model of reimbursing private attorneys for services provided to eligible clients. This approach later came to be known as "judicare" for its similarity to the structure of the Medicare program in the United States. (7) The policymakers at OEO explicitly rejected the English model. (8) In his speech to the state bar presidents, Bamberger went on to comment:

      I do not believe that an "English System" which parcels out the legal problems of the poor to lawyers engaged not because they have a singular dedication to assist poor people but because they are members of a bar association ... will ever provide the necessary concerted and thoughtful legal analysis and challenge which must occur if the OEO programs will be more than a chain of legal first-aid clinics. (9) OEO leaders wanted a service delivery model that would advance the law-reform priority. They had no doubt that the optimal structure was full-time poverty law experts working in not-for-profit legal services offices in the neighborhoods where poor people lived. When the law-reform priority of OEO legal services generated hostility from conservatives, Congress created a new home for the program: the Legal Services Corporation (LSC). The change was intended, in part, to insulate the program from controversy and political influence. (10) This strategy succeeded for a short time. By the end of the Carter Administration in 1980, LSC was the main funder and national policy center of civil legal services. The salaried-staff model was firmly in place, (11) and LSC had programs in every state and territory. Congressional funding for legal services was at its peak, a level not exceeded since 1980. (12) That funding level supported "minimum access," which was defined as two attorneys for every ten thousand poor people. (13)

      This high point did not last long. The Reagan Administration ushered in a concerted effort to abolish LSC. (14) Existential threats from conservative opponents continued through the end of the Reagan Administration, abated somewhat in the George H.W. Bush Administration, (15) and resumed in 1994 when Republicans gained control of the 104th Congress. That Congress enacted the most severe budget cuts and restrictions in the history of the program. (16) The persistent and fierce opposition from conservatives was rooted in their objection to the social-change and law-reform mission of legal services, which they considered political activities. (17) Many conservatives tolerated a legal services program that helped people with their everyday legal problems, but they vehemently opposed the class actions, legislative advocacy, and test cases aimed at producing systemic change. (18)

      Legal aid lawyers, with the unwavering support of the American Bar Association, organized to save the program. They were ultimately successful, but the price was slashed LSC funding, a prohibition on class actions, and restrictions on the substantive claims and remedies that LSC lawyers could pursue for their clients. (19)

   2. The Civil Gideon Movement

      The right-to-counsel movement, which had no traction in the first decades of government-funded legal services, gained supporters due to growing political opposition to the systemic-change goals of the early years. Legal-services advocates and advocacy groups responded with increasing enthusiasm to the "clarion call" of equal access to justice. (20) Organizing to support a right to counsel in civil matters provided a new focus that was, as I have noted elsewhere, "widely viewed as apolitical, an entailment of the nation's commitment to equality under law." (21) A coalition of advocates and advocacy groups organized the National Coalition for a Civil Right to Counsel (22) to pursue legislative reform at the state level and litigate due process claims in federal and state courts. (23) The National Center for Access to Justice (24) describes itself as "the single academically affiliated nonpartisan law and policy organization dedicated exclusively to assuring access to our civil and criminal justice system." (25) Its small staff pursues a wide range of policy advocacy--reports, articles, teaching, conferences--in pursuit of full access to the courts. Neither of these organized efforts existed until the late 1990s.

      The civil Gideon rationale is familiar. The legal problems of everyday life are pervasive and consequential. (26) The increasing importance of law in people's daily lives results from courts and legislatures creating an array of social-welfare entitlements and consumer and procedural protections that are meaningful only if people can claim and enforce them. The ABA (27) and a number of state bar associations (28) have staked out policy positions in support of a civil Gideon. The ABA supports a categorical right to counsel in areas of "basic human need," defined as shelter, sustenance, safety, health, and child custody. The ABA resolution specifies that "[t]he above categories are considered to involve interests so fundamental and important as to require governments to supply low-income persons with effective access to justice as a matter of right. There is a strong presumption this mandates provision of lawyers in all such cases." (29) The right-to-counsel movement also encompasses less expansive approaches, such as a right to counsel...