Friday, November 28, 2008

Right to Counsel in Home Foreclosures

NPR reports that legal aid programs are unable to keep up with the rising demand for legal representation in home foreclosure cases, raising questions about the right to counsel in such cases.  NPR:

Everyone accused of a crime is entitled to a lawyer, whether they can afford one or not.  But in civil cases, such as home foreclosures, there is no right to an attorney.

Is this true under the federal constitution?  As a matter of Fourteenth Amendment procedural due process, the Court ruled in 1981 in Lassiter v. Department of Social Services that civil litigants had no categorical right to counsel.  The Lassiter court held that such claims would be subject to the procedural due process balancing test in Mathews v. Eldridge, and that anything short of a personal interest in physical liberty would almost certainly fail to support a constitutional right to counsel.  These cases--and the Court's later right-to-counsel jurisprudence--suggest that NPR is right:  "in civil cases . . . there is no right to an attorney."

But a growing movement--call it the "Civil Gideon Movement"--is challenging this conclusion.  In cases where important interests like housing are at stake, civil litigants, lawyers, and institutions like the ABA are pressing for a categorical right to counsel.

And they've seen some success.  Several state constitutions now recognize a categorical right to counsel in certain civil cases (like deprivation of parental rights proceedings, where the interest in parenthood is quite high), and many states provide a right to counsel to civil litigants in certain cases by statute. 

The issue provides a nice case study in-progress in organized movements to promote constitutional and policy changes.  As is so often the case, the states provide some of the most interesting fodder. 

Here are some resources.  The National Coalition for a Civil Right to Counsel--a well organized effort that includes attorneys, advocates, and academics--has been at the forefront of the civil right to counsel effort; link to the Coalition web-site here.  The American Bar Association resolution urging a civil right to counsel is here.  The Brennan Center page on civil right to counsel is here.


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