IN PURSUIT OF MEANINGFUL CIVIL REPRESENTATION: ADVOCACY STRATEGY PROPOSALS FOR AN INTEGRATED CIVIL GIDEON AND LEGAL EMPOWERMENT APPROACH.

• Date: 01 April 2024
• Author: Slater, Sophia T.

Introduction 1274
                I. Factual Background 1276 A. The Access to Civil Justice Crisis 1276 B. The Civil Right to Counsel (Or Lack Thereof) 1277
                II. Existing Approaches 1278 A. The Civil Gideon Approach 1279 B. The Legal Empowerment Approach 1281 1. Upsolve, Inc. et al. v. James 1282 2. The Discriminatory Nature of Professional Regulation in the Practice of Law 1284
                III. Proposed Advocacy Strategies 1286 A. Litigation Strategy for a Civil Right to Counsel Based on the Right to a Jury Trial for Deportable Offenses 1286 1. The Legal Standard of a Sufficiently Severe Penalty 1287 2. Padillav. Kentucky 1289 3. Right to a Jury Trial in Proceedings for Deportable Offenses 1290 i. Badov. United States 1291 ii. People v. Suazo 1293 4. Applications to a Civil Right to Counsel 1295 B. Gun Violence Intervention Program as a Model for Legal Empowerment Initiatives 1296 1. The Jacobi Medical Center's SUV Program 1297 2. Applications to a Legal Empowerment Initiative 1299 C. Why Both Approaches Must be Implemented Together 1302
                Conclusion 1303
                

INTRODUCTION

"If we had had representation at the beginning, the eviction probably would not have happened." (1) Cristina Quinones-Betancourt, a nonprofit attorney from the organization Mobilization for Justice, made this remark about a client who had been evicted after missing rent payments and was seeking to get back his apartment. (2) Although Quinones-Betancourt had a legal argument that her client's Section 8 housing voucher should have counted toward the outstanding rent, an evicted person with a nonprofit legal attorney bearing an unmanageable caseload has an uphill battle squaring off with a well-represented landlord. (3) The Legal Aid Society's Chief Attorney of the Civil Practice, Adriene Holder, said the mechanism of legal aid is "extremely successful" when implemented, but explained the organization is "still turning away thousands of people because of the lack of capacity." (4)

This situation in housing court is just one consequence of the general lack of a right to counsel for civil cases in the United States, which is producing progressively more dire outcomes. The impact of this lack of civil counsel is particularly disparate for those facing financial and racial barriers to legal assistance. (5) These barriers prevent people not only from accessing legal help, but in some cases from seeking that help in the first place to inadequate education about their legal rights, financial and logistical obstacles, or structural inequities baked into the U.S. judicial system. (6) Although the U.S. federal government has sounded the alarm on certain aspects of this issue, (7) progress towards civil justice will require a more radical overhaul of how lawyers conceptualize the legal practice at large.

Two predominant approaches have emerged to address this access to civil justice crisis. One is the civil Gideon approach, which calls for a right to counsel in all civil cases as a due process guarantee, based on the landmark Supreme Court case in Gideon v. Wainwright that conferred a right to counsel for indigent defendants in all felony cases. (8) The other approach is the legal empowerment movement, which advocates for a democratization of legal knowledge that would empower non-lawyers to become informed advocates within their communities. (9) In existing scholarship regarding the access to justice crisis, these two approaches are often discussed to the exclusion of the other. (10) This siloed research has produced findings critical to the development of each approach but also deepened tension between them. (11) This Comment, however, takes the position that civil justice advocates should be pursuing both avenues, and that both are necessary but neither is sufficient on its own to alleviate the civil access to justice crisis.

This Comment explores the issue of the lacking civil right to counsel in the United States, analyzing existing solutions and making corresponding proposals. Part I provides a brief factual background. Part II outlines the existing approaches to resolving the access to civil justice crisis, and Part III proposes advocacy solutions in the vein of the existing approaches based on other existing models that could be applicable.

I. FACTUAL BACKGROUND

This Part will provide a brief factual background. Section I.A discusses the access to civil justice crisis, presenting statistics on disparate provision of legal services and exploring some of the reasons for that disparity. Section LB explores the lack of civil right to counsel in the United States.

A. The Access to Civil Justice Crisis

The access to civil justice crisis has been acute for years. In 2022, the Legal Services Corporation (LSC) analyzed the "justice gap among low-income" people in the United States, which LSC defines as "the difference between the civil legal needs of low-income Americans and the resources available to meet those needs." (12) During that year, 74% of low-income people reported facing at least one civil legal problem, and of those people, 92-93% did not receive "any or enough legal help." (13) The LSC estimated that of the problems for which low-income people would approach the organization for legal help, 51% of those problems would receive "some kind" of help, and of that 44% would not receive enough help to fully address the issue. (14)

A 2021 joint report from the Hague Institution for Innovation of Law and the Institute for the Advancement of the American Legal System painted a similar picture. (15) That report emphasized that even where litigants accessed local and federal agencies or courts to try to resolve a legal problem, "the results for procedural justice and outcome justice are often lower compared to other sources of help." (16) Further, using only one method of help was frequently inadequate to comprehensively resolve people's legal problems; on average, solving a legal problem requires 3.2 interventions, with approximately 2.5 interventions from a given source of help. (17)

In addition to issues receiving help, low-income people often struggle to seek help in the first place. The LSC survey reported that low-income people sought legal help for only 25% of substantial civil legal problems; the top reasons for this were cost, being unsure or doubtful whether a lawyer could be helpful, and a belief that the legal system may not treat low-income people fairly. (18) More "obviously" legal issues for which low-income people sought help at higher rates included issues surrounding child custody as well as wills and estates, which are paradigmatically "legal" and people are more likely to be aware that lawyers are involved in these areas. (19) Housing, employment, and income maintenance, were less likely to be recognized as "legal." (20) Compounding this, economically and racially marginalized people are more likely to have had negative experiences with the criminal justice system and public institutions in general, discouraging them from seeking future help and making it more appealing to be self-sufficient rather than seek governmental protections. (21)

Reasons for these disparities stem in part from the disproportionate impacts of the access to justice crisis. Households with a survivor of domestic violence, or who have faced eviction issues, experience higher rates of involvement in multiple civil legal problems at the same time. (22) Demographics that are particularly vulnerable to insufficient legal assistance include: "lower income, women, multiracial and Black[,] younger and middle-aged, and those living in urban and rural" (but not suburban) areas. (23) This vulnerability manifests not only in more contact with the legal system, but more negative results once a legal issue does arise. (24) As these groups continue to be disproportionately impacted by systemic injustice, they are likely to continue to have negative institutional experiences and therefore be reluctant to seek legal help, resulting in a "vicious cycle of civil legal problems." (25)

B. The Civil Right to Counsel (Or Lack Thereof)

The U.S. federal government does not guarantee a categorical right to state-funded representation in civil cases. (26) The Sixth Amendment only confers the right to counsel to criminal defendants, implying that criminal defendants are "entitled to key procedural and substantive protections designed to give them a chance at a fair trial... when the weight of the government is pressed against them." (27) There is no corresponding protection for civil defendants. While individual states also generally do not provide for this as a categorical right, they may allow for certain types of civil representation through statute or court decision. (28) State-level efforts do not fill the void of lacking federal regulation, which would ensure consistency and require that states devote substantial resources to this provision rather than relying on legal aid organizations or pro bono services. (29) Indeed, the Supreme Court has not required procedural standardization of civil counsel provisions across states as long as they are materially in line with due process requirements, presumably out of concern for state sovereignty. (30)

The Supreme Court has delineated certain conditions that would entitle a civil defendant to counsel, such as for juvenile delinquency proceedings. (31) However, even for juvenile delinquency proceedings, this is not a categorical right but rather only for some phases of the proceeding, and even with a lawyer there is no guarantee regarding the quality or efficacy of the legal representation. (32) Further, these Supreme Court decisions are judicial pronouncements subject to a changing Court composition rather than federal legislative entitlements, and since the 1980s, the Supreme Court has not found a categorical right to civil counsel.

II. EXISTING APPROACHES

This Part will discuss the two primary approaches that advocates have put forth to...