Why a Major Initiative for Access to Civil Justice Is Needed NowBack to table of contents
American courts and administrative agencies are established to uphold the rule of law, protect rights, ensure benefits to individuals and families, and enable communities to thrive. But courts and agencies too often fail poor and low-income individuals and families. These failures violate bedrock commitments of the nation—especially the promise of equal justice carved into the west pediment of the United States Supreme Court, spoken in the oath sworn by federal and state court justices, and recited by schoolchildren in the Pledge of Allegiance.10
A sturdy rule of law, applying to everyone equally, strengthens the nation in every way. It supports trust in government; a climate for business growth and fairness for workers; the nurturance of families; choice and safety for consumers—as well as the security of the most vulnerable. It reduces the risks of unrest and promotes confidence in institutions and society. It strengthens what is best about America and mitigates what is worst.
The accessibility of legal assistance is perhaps the most essential factor to the proper functioning of civil law. For example, one study showed that, when veterans were helped by lawyers, their success in receiving the benefits owed to them was 144 percent higher than when they filed claims without help.11 Legal assistance, by improving the accuracy and completeness of applications and making the review process more accurate and efficient, also eases the administrative burden on state governments.
Legal assistance also protects public money. Over the last decade, many states, bar associations, and legal services organizations have documented the social, economic, and community dividends of providing legal services such as direct representation and access to legal advice. States saved costs, communities became safer, and courts and agencies did their work more effectively.
- In 2017, New York State reported that its expenditure of $462.6 million on civil legal services helped poor and low-income residents obtain $1.08 billion in Medicaid, Social Security Disability, and other federal benefits, as well as awards of $58.6 million in civil cases. The state estimated that it saved $724.3 million by keeping people in their homes (reducing demand on shelters) and by preventing domestic violence and avoiding medical costs. It concluded that, through the obtained federal benefits alone, the total return on its investment in legal services was $3.3 billion, or about $7.21 for every $1 spent.12
- The California bar reported that in 2017, 95 nonprofit legal services providers received $37 million in grants, which supported efforts that recovered $134 million for clients and prevented the loss of an additional $43 million in benefits. The providers helped keep 4,895 families in their homes, avoiding $19.6 million in costs for clients, and helped obtain 4,874 restraining orders to protect survivors of domestic violence. In addition, 231 orders obtained after hearings saved $2.9–$3.9 million in state Medi-Cal costs.13
- Vermont estimated the economic return on its $6 million investment in legal services in 2017 to be $66.4 million, a return of $11 on every $1 spent.14
These studies confirm earlier reports. In 2014, for example, a task force of the Boston Bar Association found that every dollar spent on legal assistance for poor and low-income individuals returned $1–$5 to the Commonwealth in savings due to reduced demands on foster care, emergency housing, emergency healthcare, and other social services.15 Civil legal-aid service providers in Georgia helped their clients obtain $36.3 million in Social Security benefits.16 Programs provided by similar organizations in Tennessee helped secure $1.3 million in cost savings by reducing the need for emergency homeless beds.17 And in 2015, civil legal-aid recipients in Maine spent fewer nights in the state’s emergency and homeless shelters, which saved an estimated $2.6 million.18
These data reveal a simple truth: legal aid serves the country. The benefits far outweigh the costs when people who are struggling can pay their bills, avoid foreclosure or eviction, prevent domestic violence, prevent foster care placements for their children, and obtain healthcare and social services that improve their lives.
Since lawyers are so important to the proper functioning of the law, many observers advocate for a right to counsel for poor and low-income people in civil cases where basic human needs are at stake. A right in such cases would be similar to the right to a lawyer in criminal proceedings in which the defendant faces the prospect of time behind bars (as guaranteed in the Supreme Court’s 1963 decision in Gideon v. Wainwright). This report takes no position on proposals for a civil right to counsel.19 It makes recommendations within existing law, identifying reforms that are consistent with but do not require such a right. Most civil matters, while crucial to daily life and existence, have not been deemed fundamental by the Supreme Court.20 And even though parental rights have been deemed fundamental under federal due process, the right to counsel in such matters is treated as a discretionary issue under federal law.21 However, all states guarantee a right to counsel for certain types of civil cases, although it varies from state to state as to which areas are covered.22 Additionally, state and local governments have undertaken other efforts to provide assistance by civil justice advocates whenever people who qualify for it ask for it.23 Even where civil right to counsel applies, some work is usually needed to maximize its impact as well as address matters or individuals not covered by its scope. Therefore, even if civil right to counsel were announced as a right, plenty of work would still need to be done of the sort explored in this report: promoting effective models for lawyers and nonlawyers, developing technological aid, and simplifying the law so self-help is more feasible in civil matters.
And given the massive scope of the civil justice gap—and the tremendous variety of cases that fall within it—lawyers cannot be the only remedy. A coordinated response must include a shift in scope and strategy beyond the expansion of professional legal services. The systems that stand between individuals and their legal needs must be revised so that individuals can navigate them on their own. Legal resources must be integrated with health systems, libraries, and social services. Helpers beyond lawyers—other professionals, volunteers, and civil justice advocates—must be recognized and encouraged as vital partners and contributors. Failing to make these more ambitious changes will continue to consign large numbers of people to hunger, homelessness, violence, unnecessary illness, and other forms of severe and avoidable suffering.
Change requires careful thought. Change is often difficult. But as American Bar Association (ABA) President Judy Perry Martinez wrote in 2020, “given the dire circumstances that the public faces when trying to protect their basic rights, doing nothing poses an even greater risk to our system of justice and the rule of law.”24
- 10For one elaboration of these ideas, see Alexandra Lahav, In Praise of Litigation (Oxford: Oxford University Press, 2017), 113: “These idealistic statements affirm the dignity and moral worth of every person by promising to all an avenue for the recognition and enforcement of their rights and obligations. For this reason, a person excluded from the court system is politically degraded. Such a person has no rights—not even the right to have rights . . . [meaning] the most basic of all rights: the ability to appear before a government official and argue that one is entitled to recognition as a potential holder of rights.”
- 11Margaret Middleton and Timothy D. Bleasdale, “Legal Aid Can Slice through Veterans’ Benefits Backlog,” Hartford Courant, June 6, 2014.
- 12New York State Permanent Commission on Access to Justice, Report to the Chief Judge of the State of New York (Albany: State of New York Unified Court System, November 2018).
- 13State Bar of California, Making a Difference: California Legal Aid (San Francisco: State Bar of California, January 2019).
- 14Resource for Great Programs, Inc., Economic Impacts of Civil Legal Assistance Programs in Vermont: Report to the Vermont Access to Justice Coalition (Traverse City, Mich.: The Resource for Great Programs, June 2019).
- 15Boston Bar Association Statewide Task Force to Expand Civil Legal Aid in Massachusetts, Investing in Justice: A Roadmap to Cost-Effective Funding of Civil Legal Aid in Massachusetts (Boston: Boston Bar Association, October 2014).
- 16Kenneth A. Smith, Andrea J. Brewer, and Kathy Garwold, Economic Impacts of Civil Legal Aid Organizations in Georgia: Civil Justice for Low‐Income People Produces Ripple Effects That Benefit Every Segment of the Community (Traverse City, Mich.: The Resource for Great Programs, February 2013).
- 17For citations of relevant studies, see Todd Gabe, Economic Impact of Civil Legal Aid Services in Maine (Hallowell: Maine Justice Action Group, November 2016).
- 18“This estimate is based on cases that closed with successful outcomes of dismissing an eviction notice, securing additional time in an eviction case, dismissing a housing foreclosure, or securing additional time in a foreclosure case.” Ibid., 13.
- 19On the use of data to evaluate where a civil right to counsel would most likely affect the outcome of a case, see Engler, “Connecting Self-Representation to Civil Gideon.” On the need to “triage” legal services because funding for a civil Gideon will never be sufficient to provide a full attorney-client relationship, see D. James Greiner and Cassandra Wolos Pattanayak, “Randomized Evaluation in Legal Assistance: What Difference Does Representation (Offer and Actual Use) Make?” Yale Law Journal 121 (8) (June 2012): 2118. For the argument that “a right to counsel should arise whenever access to the justice system is warranted,” see Robert W. Sweet, “Civil Gideon and Confidence in a Just Society,” Yale Law and Policy Review 17 (1) (1998): 503.
- 20See, for example, Deshaney v. Winnebago, 489 U.S. 189, 195–97 (1989) (holding that the state has no constitutional duty to protect persons from domestic violence); Webster v. Reproductive Health Servs., 492 U.S. 490, 507 (1989) (the Constitution’s “Due Process Clause generally confers no affirmative right to governmental aid, even when such aid may be necessary to secure life, liberty, or property interests”); Plyler v. Dole, 457 U.S. 202, 223 (1982) (finding that education is not a fundamental right); and Lindsey v. Normet, 405 U.S. 56, 74 (1972) (finding no “constitutional guarantee of access to dwellings of a particular quality” or any constitutionally mandated “assurance of adequate housing”).
- 21See Turner v. Rogers, 564 U.S. 431 (2011) (finding that due process did not require provision of counsel at a father’s civil contempt hearing for failure to comply with a child support order); and Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (1981) (holding that parents were not entitled to appointed counsel in a proceeding for termination of parental status). But see also Airey v. Ireland, 32 Eur. Ct. H.R. (ser. A) (1979) (holding that the failure to provide legal aid to indigent women in a separation proceeding violates the European Constitution).
- 22For a list of every right to counsel that exists for every state, see http://civilrighttocounsel.org/map.
- 23For an argument that nonlawyer legal professionals can improve access to justice in civil matters, see, for example, Richard Zorza and David Udell, “New Roles for Non-Lawyers to Increase Access to Justice,” Fordham Urban Law Journal 41 (4) (2014): 1259–1315. For discussion of a New York City program that provides unrepresented litigants with assistance in housing and civil courts, see Rebecca L. Sandefur and Thomas M. Clarke, Roles beyond Lawyers (Chicago: American Bar Association, December 2016). For an overview of civil legal aid, see Earl Johnson Jr., To Establish Justice for All: The Past and Future of Civil Legal Aid in the United States, 3 vols. (Oxford: Praeger, 2014).
- 24Judy Perry Martinez, “Innovation and Access to Justice: We Must Not Squander the Future of Legal Services,” ABA Journal (February–March 2020): 6.
A Well-Documented Need for Advocates: The Local Right-to-Legal-Assistance Movement
The Bronx is the poorest of New York City’s five boroughs—and includes the poorest congressional district in the United States.25 About 80 percent of its residents live in rental housing. In 2010, when law professor Russell Engler assessed the Bronx Housing Court, he described its courtrooms as “eviction mills” created “to work in a landlord’s favor.”26
A report produced by the New Settlement Apartments’ Community Action for Safe Apartments (CASA) found that, of the 2,000 or so tenants who went to the Bronx courthouse each day, some 80 percent did not have a lawyer or other advocate. Many did not know where in the building they should go when summoned to a hearing, or that they had to check in with the court clerk or receive a calendar number that the court would then use to track their case.
In half the disputes, lawyers for landlords tried to resolve matters before the cases arrived in court by encouraging tenants to agree to stipulations. Most tenants who were offered stipulations did not have a hand in writing them. Many did not understand the deals that the stipulations set out. A report by CASA states that most tenants did not “talk to a judge or court attorney” until after they had signed their agreements, “when information about their rights as tenants” became irrelevant. The report concludes, “Our research and findings suggest that Housing Court does not currently operate as a place where tenants can access justice, but rather as a place where tenants are brought to court and evicted at a disturbing and unprecedented rate.”27
As a result, in 2013, CASA recommended “legislation giving all tenants the right to a court-appointed attorney if they cannot afford one themselves.”28 In 2017, after a city-wide political effort, the New York City Council passed a bill for Provision of Legal Services in Eviction Proceedings. It committed $155 million to be spent over five years to fulfill the right to counsel for people with income at or below 200 percent of the federal poverty level.
The new law rested on two premises. First, in New York City at the time, about 90 percent of landlords in eviction proceedings had lawyers, compared to only about 1 percent of tenants, and parties without lawyers generally fared much worse. Second, the cost savings for the city—for example, from money not spent on homeless shelters for families able to remain in an apartment—were likely to be greater than the cost of providing counsel.
Newark, Philadelphia, Cleveland, and San Francisco have since passed similar right-to-counsel laws covering eviction cases for poor and low-income people. Connecticut, Massachusetts, and Minnesota are considering similar laws. Advocates for a general civil right to counsel requirement regard this groundswell of local laws providing a right to legal assistance in eviction cases as a precedent for other areas of civil law as well.
- 25“U.S. Congressional Districts by Their Median Income.”
- 26Russel Engler, “Connecting Self-Representation to Civil Gideon: What Existing Data Reveal about When Counsel Is Most Needed,” Fordham Urban Law Journal 37 (1) (2010): 77.
- 27New Settlement Apartments’ Community Action for Safe Apartments (CASA) and the Community Development Project (CDP) at the Urban Justice Center, Tipping the Scales: A Report of Tenant Experiences in Bronx Housing Court (New York: CASA and CDP, March 2013), 19, 22.
- 28Ibid., 24.