Law Review and Other Articles

New York

Andrew Scherer, New York City’s “Universal Access” Legislation: One Giant Leap for the Civil Right to Counsel, MIE Journal Special Feature: “Gimme Shelter:” Creative Advocacy Approaches to Safe and Habitable Housing (Fall 2017).

After decades of advocacy and a concerted organizing effort by the Coalition for a Right to Counsel NYC that began in 2014, New York City adopted legislation In the summer of 2017 that made it the first jurisdiction in the United States to guarantee a right to counsel to low-income tenants who face eviction. This article discusses the steps that lead up to passage of the new law, the provisions of the law and its implications.

Honorable Jonathan Lippman, Justice, Justice Shall Ye PursueIMPACT: Collected Essays on Expanding Access to Justice (July 2016).

During Honorable Jonathan Lippmans’ tenure as Chief Justice of the NY State Court of Appeals, access to justice for the most vulnerable people was the highest priority. The core value of the judiciary and our nations’ founding ideals requires that “the first duty of society is justice” to ensure a fair system of laws and equal justice for all. Lippman established the Task Force to Expand Access to Civil Legal Services in NY, now Permanent Commission on Access to Justice, to measure the problem, conduct research and recommend action. In response to these reports, including a finding that 2.3 million unrepresented people passed through the courts, initiatives were developed that includes interactive forms, online legal resources, increased use of mediation and alternative dispute resolution. Additionally, ways for non-lawyers to provide support and information to these most vulnerable people were also developed. Moreover, the New York Bar adopted programs and requirements for retirees, newly-minted lawyers, and practicing attorneys to encourage and support pro bono work. Despite these efforts, Lippman emphasizes there is much more work to meet our duty to provide equal justice and calls members of the bar and the community to action.

Andrew Scherer, WHY A RIGHT: The Right to Counsel and the Ecology of Housing JusticeIMPACT: Collected Essays on Expanding Access to Justice (July 2016). 

In response to the advocacy and proposed legislation for a right to counsel for low-income tenants who face eviction, New York City has quintupled funding for eviction prevention legal assistance but anything short of a right will not cause a fundamental change in Housing Court. Increased funding does not confer a right and can be terminated at will. A right-holder derives power from a legal right because it provides a remedy for infringement of that claim from the courts. A right fosters the rule of law by providing protection against government error and unfairness because “a right alters not only the status of one individual but also the status of the government.” The need to “level the playing field” arises from the imbalance in resources, power, influence and access to counsel. Andrew Scherer finds that a right to counsel will disrupt the current long-standing expectations and understanding in Housing Court for the judges, attorneys, and parties.

Susanna Blankley, The Fight for Justice in Housing Court: From the Bronx to a Right to Counsel for ALL New York City Tenants, IMPACT: Collected Essays on Expanding Access to Justice (July 2016).

In response to the housing and homelessness crisis in New York City, Mayor Bill de Blasio’s housing plan to construct new units of affordable housing and rezone neighborhoods to facilitate this construction, also includes millions of dollars to increase the number of lawyers available to represent tenants in housing courts in the rezoned areas. In the Bronx, 2,000 people are in Housing Court every day and up to thirty thousand families lose their homes every year in New York City. Most of these displaced tenants are people of color who make less than $48,000 a year, have small children, cannot afford to miss multiple days of work, do not speak English and do not have legal representation. CASA started a campaign to reform the Bronx Housing Court that helped improve housing courts throughout the city through reforms like placing a bilingual power-point in every courthouse. How people are treated is the core of the Right to Counsel movement and requires more than money to effectuate justice for all.

Access to Justice: Is Civil Gideon a Piece of the Puzzle?, ABA Bar Leader at 11 (July/August 2008)

The movement for “Civil Gideon” has been active for more than a decade, pushing for the civil equivalent to the landmark criminal case Gideon v. Wainwright. A study found that four of every five civil legal needs were not being met for low-income families and a 2005 survey found that for every client who received a service, one was turned away. The National Coalition for a Right to Civil Counsel has supporters across the country at state and local bar levels. According to some, the issue is hitting a critical mass. Bar associations are focusing on education and awareness, and some are participating in legal cases with amicus briefs. Others are focusing on cost savings that could be realized: in New York City, every dollar spent on pre-eviction legal services could save the City $4 in services like housing for the homeless.  However, funding is a major stumbling block for the movement. With state budgets running at a deficit, it is hard to find funding for civil representation programs.

Andrew Scherer, Occupy the Justice System: Civil Right to Counsel and the Equitable Distribution of Justice26 MIE Journal 33 (2012).

Equal justice under the- law is not merely a caption on the facade of the Supreme Court building… it is a fundamental that justice should be the same, in substance and availability, without regard to economic status. The reality is that there is this great imbalance, which is factual, not theoretical, between justice for the wealthy and the poor. Our system of justice dispenses justice to people with money and denies it to those without. And this is not just an economic problem.  Because of the close nexus between poverty and race in the U.S., that disparity in dispensing justice falls almost as much along racial lines as it does along economic lines. To ensure fairness in the courts, low-income people should have the right to counsel in civil legal matters to advance and protect their material well-being.  While the stakes in these cases for the wealthy and the corporations are generally greater monetarily, the stakes for low-income folks — home, family integrity, income, community, health, education and the like — are, on a human scale, far higher. The imbalacnce in access to legal assistance for the poor is fostered by public policy. The NYC Housing Court spends $91.43 per case with a caseload of 7,000 cases per judge. This is a sharp contrast to the federal trial courts, which spend over eighty times that much per case and assign judges 140 times less cases. Scherer calls for a bold move: develop a critique of the inequities in the justice system and create strategies to secure a civil right to counsel.

Andrew Scherer, Why People Who Face Losing Their Homes in Legal Proceedings Must Have a Right to Counsel, 3 Cardozo Pub. L. Pol’y & Ethics J. 699 (2006)

A home is a precious thing to lose. One’s home is one’s place in the world and is crucial to one’s well-being. The home is the locus of family life and child development, necessary for accessing education, jobs, and government benefits, and a prerequisite for participating in civil society and exercising political rights.

The precipitous loss of one’s home through eviction is a devastating and traumatic experience, particularly for low-income tenants in New York City who are displaced into a housing market that has virtually no housing that is affordable to them.

This paper argues in favor of a simple proposition: people who face losing their homes in legal proceedings must have a right to be represented by counsel in those proceedings, whether or not they can pay for counsel. Public policy, the fair administration of justice, constitutional and statutory law, and a growing international consensus on the human right to a fair hearing, all support this proposition.

Andrew Scherer, Gideon’s Shelter: The Need to Recognize a Right to Counsel for Indigent Defendants in Eviction Proceedings, 23 Harvard C.R-C.L. L. Rev. 557 (1988)

 In New York City alone, over 25,000 evictions take place each year—one eviction every six minutes of the work week. This Article sets forth the argument that counsel must be provided to indigent tenants facing eviction. Procedural due process forms the foundation of this argument. The Article then explores the potential statutory bases for appointment of counsel for tenants faced with eviction and suggests additional arguments to support the establishment of a right to counsel. Finally, the Article discusses the issue of who can and should be appointed as counsel and how a right to counsel could best be implemented.

United States

Andrew Scherer, The Importance of Collaborating to Secure a Civil Right to Counsel, 30 N.Y.U. Rev. L. & Soc. Change 675 (2006)

This country has developed an increasingly complex and adversarial system of dispute resolution. The system is structured to require legal counsel for meaningful access. Yet the number of those who cannot afford counsel in the face of increasingly serious legal disputes–disputes with enormously serious consequences upon lives and well-being–is rising.

This Article argues that the most important collaboration in the interest of “access to justice” is one that seeks to correct the single greatest impediment to a truly just system: the lack of a civil right to counsel.  Without counsel, tenants are not able to defend their interests meaningfully. The purpose of ensuring a right counsel in civil cases is to promise individuals that there will be a level playing field.  A right to counsel is needed to move toward a judicial system that is blind to income and assets, a system that allows people to obtain the assistance of counsel on matters for which a reasonable person with the means to hire counsel would choose to use counsel.

John Gross, The True Benefits of Counsel: Why “Do-It-Yourself” Lawyering Does Not Protect the Rights of the Indigent, 43 N.M. L. Rev. 1 (Spring 2013)

In criminal matters, where a person stands to be imprisoned for a single day, there is a constitutional right to counsel under the Sixth Amendment. In civil matters, such as failure to pay child support or civil contempt, a person may face jail time, but there is no right to counsel under the Fourteenth Amendment’s Due Process Clause. In some states, failure to pay child support may be a criminal offense for which counsel may be provided, while in other states, it is a civil matter. In 2011, the U.S. Supreme Court decided Turner v. Rogers, a case involving an indigent noncustodial parent facing up to a year in jail for a failure to pay child support. The court did not require the appointment of counsel in this civil matter, but rather called for “substitute procedural safeguards,” such as notice given to a defendant or a form for relevant financial information. This article draws attention to these inconsistencies and the impact of an attorney on these types of cases, as well as the costs of incarceration and the costs of representation.

Laura Abel and Judge Lora Livingston, The Existing Civil Right to Counsel Infrastructure, 47 No. 4 Judges’ J. 24 (2008)

The ABA’s historic 2006 resolution regarding a civil right to counsel builds on an existing network already in place in nearly every jurisdiction in the country. No jurisdiction has a complete civil right to counsel, but many have existing statutes or court rules allowing certain types of cases. Nearly every state has a statute providing either an attorney or a guardian ad litem to children in abuse or neglect cases. Many states also provide counsel for parents in those cases and in cases where the state is petitioning to terminate parental rights. Some states allow for counsel in health related matters, such as involuntary sterilization cases or involuntary vaccination orders. New York provides counsel to people seeking protection from domestic violence. Some state statutes provide a right to counsel for involuntary commitment for mental illness and other protective services or guardianship matters. In order for these programs to be effective, attorneys need to receive relevant training and must meet certain basic duties for their clients. These attorneys need to be adequately compensated. Few states have any guidelines for attorney appointments in these cases and funding has been inadequate.

International

Raven Lidman, Civil Gideon: A Human Right Elsewhere in the World

While many lawyers in the United States acknowledge that representation is “advisable, if not essential,” they question the feasibility of free representation to the indigent population. Lidman compares this with the English legal system as well as other Eurpoean countries and their willingness to provide public attorneys in civil matters.

England has been providing free legal representation for indigent people in civil matters for five centuries. The rationale was to urge of the people to become confident in the King and its courts. Since 1979, the European Court of Human Rights declared access to representation a human right. The scope of the right in Europe is limited in that it has established standards of eligibility. In most European countries, legal services are provided for free if the individual has a modest income and resources. In other cases where their income may exceed the threshold, applicants must make some contribution toward the cost of representation. Litigation insurance is an option that may utilized as well.

Risa E. Kaufman, Sherie Gertler, Mickey Hubbard and Rumbidzai Maweni, Filling the Justice Gap: Access to Justice and Human Rights at Home

Millions of Americans lack counsel when facing issues such as eviction, foreclosure, and loss of child custody. Statistics show that less than one in five low income individuals obtain legal assistance when they need it. As a result of the resounding need to address this disparity, the United States made a pledge at a United Nations conference to improve access to justice by undertaking special initiatives to protect and strengthen human rights. While the U.S. has ratified treaties that protect access to justice, in efforts to match its international counterparts, it has still yet to meet its potential. Though the Obama administration established the Access to Justice Initiative (ATJI), there are many constraints that it faces, including being substantially underfunded.

Magdalena Sepulveda Carmona, United Nations General Assembly, August 9, 2012, Report of the Special Rapporteur on Extreme Poverty and Human Rights

Access to justice is seen as a fundamental right, but there are many obstacles to this right for people living in poverty. The lack of legal aid in civil matters, including housing matters, discriminates against the poor.  These matters are often complex and insurmountable if the other party has counsel.  States must remove social and economic obstacles to equitable outcomes for persons living in poverty and equalize parties in proceedings.  It is not enough to make information about the justice system accessible, judicial bodies need to adapt the process for those in need.  The judicial system is complex, involving laws, traditions, jargon, and strict timelines.  These impediments can limit fair outcomes without the assistance of counsel.

Martha F. Davis, Participation, Equality, and the Civil Right to Counsel: Lessons from Domestic and International Law, 122 Yale L.J. 2260 (2013)

While proponents of a civil right to counsel often make arguments based on equal protection and due process and make comparisons to Gideon v. Wainwright, international law may offer stronger arguments through a right to participation in civil processes and a belief in “equality of arms.”  The current views do not adequately address impacts on racial minorities and women in civil proceedings and focus primarily on family law matters.  By looking to international law, the focus can shift from a need-based assessment conducted on a case-by-case basis to a broader class-based assessment, viewing the impact on an entire class of people affected by the type of action contemplated.