Access To Justice

“You have the right to an attorney, if you cannot afford an attorney, one will be provided for you.”  As any viewer of Law and Order knows, this Miranda warning is given to criminal suspects informing them of their right to a lawyer.

In its landmark case, Gideon v. Wainright 372 U.S. 335 (1963) the U.S. Supreme Court ruled unanimously that under the sixth amendment, state courts must provide indigent defendants with a lawyer for criminal cases.

Makes sense right? After all, our criminal justice system is based on an adversarial system where lawyers argue their case in front of juries.  The Supreme Court held that just because you’re poor does not mean that you shouldn’t have the same access to representation as someone who can afford a lawyer.  If it were otherwise, we’d be putting poor defendants at a sever disadvantage in our system.

O.K., so we all agree that makes sense, but what about non-criminal cases.  What about the case of a poor person who is being illegally evicted from her home, or of a poor person who is involved in a custody dispute with a former spouse?  Or what about a poor person who can’t afford an attorney to fight a foreclosure, or to help them file for bankruptcy protection against creditors?  In our system, there is no provision extending the “right to counsel” to these kinds of civil cases.

There should be though, and I’m not the only one who thinks so.  In fact in 2006, the ABA issued a statement formally supporting a Gideon system for civil cases.  And earlier this month, California Governor Arnold Schwarzenegger signed a law that provides for counsel for indigent defendants.  The Wall Street Journal’s Tamara Audi has the story.

Critics of the law say that the courthouse will be clogged with cases, and that even simple procedures will now be litigated because everyone will have access to a lawyer.  I must confess I’ve never really understood that argument.  First of all, if the courts are clogged, then let’s increase the capacity of the courts.  It seems to me that if crowded courts are the side effects of extending legal rights to all people, then I’m in favor of crowded courts.

Kudos to California for passing this sensible and overdue legislation.