Engler on Pros and Cons of the Civil Gideon Movement's Methods: Shaping and Focusing a Civil Right to Counsel

Posted by Alan Childress

Russell Engler (New England) has posted to SSRN his article, "Shaping a Context-Based Civil Gideon from the Dynamics of Social Change."  Here is his abstract:

In this paper, I outline a strategy of an incremental, context-based approach to achieving a civil right to counsel. I do so against the backdrop of the renewed interest in, and increasing calls for, such a right, also called a “Civil Gideon.”  Despite my support for a Civil Gideon in a broad array of cases, I believe that litigation or legislative strategies that seek as the next step the establishment of a broad-based right to counsel, rather than a more targeted approach, will be difficult to achieve.

I reach this conclusion because I see the problem primarily as one of effectuating social change, not of developing constitutional or statutory doctrine. I therefore do not focus here on the legal arguments that might support a civil right to counsel. Instead, I examine initiatives of the past forty years to understand why those efforts did not achieve a Civil Gideon. I also look beyond the Civil Gideon history for more successful examples in which litigation played an important role in strategies designed to effectuate systemic change. Using the past as a backdrop, I explain what I mean by a context-based approach to an expanded right to counsel, and explore strategies to achieve that result. If the recent surge of activity is to bear fruit, we must first understand why we made so little progress in the first forty years. The dynamics of the first forty years must shape the strategies for the immediate future.

Recognizing the interrelationship between Civil Gideon strategies and the dynamics of social change is particularly important at a Symposium named for Edward V. Sparer. A giant in the early years of the “poverty law” movement, Sparer's aggressive and affirmative use of the “law as an instrument of social change” became the credo of his legal services office in New York City. Over twenty years after Sparer's untimely death, a renewed focus on Civil Gideon should ignore neither Sparer's vision nor the first 40 years of Civil Gideon initiatives.