American civil law and procedure used to be much less complex and formal. Many judges, magistrates, and justices of the peace were not lawyers. Ordinary citizens could appear in court and argue their cases.
Bar admission was informal. How informal? Consider the bar examination story of John Birch of Bloomfield, Illinois. Birch met with his bar examiner, a local attorney named Abraham Lincoln, in Lincoln’s hotel room. Lincoln met him at the door in a state of partial undress and then proceeded to examine Birch orally while taking his afternoon bath:
He asked me in a desultory way the definition of a contract, and two or three fundamental questions, all of which I answered readily, and I thought, correctly. Beyond these meager inquiries . . . he asked nothing more The whole proceeding was so unusual and queer, if not grotesque, that I was at a loss to determine whether I was really being examined at all. After he had dressed we went downstairs and over to the clerk’s office in the courthouse, where he wrote a few lines on a sheet of paper and directed me to report with it to Judge Logan.1
When Birch presented the letter, Judge Logan smiled and swore Birch in. The note from Lincoln read: “My Dear Judge—The bearer of this is a young man who thinks he can be a lawyer. Examine him, if you want to. I have done so, and am satisfied. He’s a good deal smarter than he looks to be.”2
From the late nineteenth century on, laws and procedures have grown more formal and complex. Thus, most civil litigants now need lawyers to navigate for them, which has naturally hurt those who cannot afford one. Poor people have probably never fared particularly well in American civil courts, so recent talk of a pro se or access-to-justice “crisis” merely recognizes a longstanding problem.
Over the last four decades, however, things have indeed gotten worse. American law has kept growing more complex and more intrusive. And lawyers’ hourly rates have kept rising, as the traditional answers to these challenges—increased funding for legal aid, a civil Gideon right, more pro bono work—have largely failed.
America’s history of access to civil justice divides roughly into four eras. First, through most of the eighteenth and nineteenth centuries, American justice was much less formal and the reach of the law was much more limited. The country was largely agrarian and the courts were informal and often run by laymen. A literate American with some help could likely prosecute or defend any civil suit he might find himself in.
In the second era, from the end of the nineteenth century until the 1960s, the legal profession and the courts became more powerful and formalized. America became increasingly industrialized and urbanized, and absorbed a massive wave of immigrants, so we relied increasingly upon the law, lawyers, and legal structures to settle disputes and organize society and the economy. The law’s widening scope was coupled with increasing complexity. Discovery (exchanging potential evidence before trial) became the norm in litigation. Statutes and common-law doctrines expanded to cover much more human interaction. The regulatory state grew. All of this meant that ordinary Americans were more likely to need lawyers.
The increased emphasis upon law put the poor, especially immigrants, at a terrible legal disadvantage. While urban charities responded by founding legal aid societies, these organizations were small, charitably funded, and often ineffective.
Third, from the 1960s until the 1980s, there was tremendous growth in both the number of lawyers and lawyer incomes, demonstrating the burgeoning need for legal services. There was also a great flowering of interest and funding for civil lawyers for the poor. The federal government funded legal aid societies to an unprecedented level. Law schools founded clinics. As desegregation and environmental lawsuits succeeded, nonprofit law-reform groups became more prevalent.
Finally, the last three decades have shown the problem with our increasing dependence upon lawyers. The access-to-justice crisis has grown and spread upwards. What has been treated as a problem solely for the poor has become a problem for most Americans, even though there are many more lawyers than ever and many more law school graduates than there are jobs for lawyers.
Why the mismatch between supply and demand? Rules forbidding the unauthorized practice of law keep cheap non-lawyers from the market. Law school is much too expensive and law students now graduate with crippling student debt. Law schools also teach and highlight legal complexity, rather than attempting to streamline legal services and teach a cookie-cutter approach, and for good reason: American law and procedure are extraordinarily complex, making it dangerous to mass-produce services.
We have also seen a collapse of support for the 1960s approach to the legal needs of the poor. Legal aid societies came under attack. Budget cuts plus inflation have chopped their funding in half, and stringent controls regulate the sorts of work they can perform. Pro bono programs have become more formalized, but still reach little of the great need. And the Supreme Court has twice rejected civil Gideon, probably for good. It is time to try new approaches.
1700–1880: Lay Justice
American law and procedure were much less complicated during the eighteenth and nineteenth centuries, and the rules on lay representation were much looser. In a largely agrarian economy, fewer Americans were likely to find themselves in civil court. If a citizen could read and write, he could probably represent himself competently. Rules against the unauthorized practice of law were rare and never enforced outside of court, so litigants who needed help could consult lawyers or nonlawyers. Even many judges were not lawyers.
This was especially true during the mid-nineteenth-century period of Jacksonian democracy, when governments deprofessionalized the courts and the legal profession as part of a broad-based attack on cultural elites. State governments dismantled many barriers to entry and formal regulation of the legal profession. New Hampshire, Maine, Wisconsin, and Indiana abolished their requirements for appearing in court altogether.3 In 1800, a set period of preparation for bar admission was required in fourteen of the nineteen states or territories. In 1840, it was required in eleven out of thirty. By 1860, it was required in only nine of thirty-nine.4 Legislatures sought to reform and codify the common law and eliminate special pleading forms. As a result, courts were often informal and lay people were welcome to plead their own cases.
1880–1965: The Professionalization Project
The growth of cities, the industrial economy, and immigration led to greater reliance on law and the courts to organize our society. Plaintiffs injured by streetcars, railroads, textile mills, and factories filed far more negligence suits in the late nineteenth century, and these suits were more time-consuming and witness-intensive than contract cases and the like.5 There was a tremendous growth in the number and nature of statutes, regulations, and court-made common-law doctrines. Federal and state bureaucracies were created and grew exponentially.
At the same time, bar associations, judges, and law professors strove to professionalize the legal profession and the courts. Court procedures formalized to the point where only trained and experienced lawyers could operate the rules of evidence or procedure in a typical civil case.
State supreme courts and bar associations became much more engaged in regulating the legal profession. Between 1880 and 1950, they erected more and higher barriers to entering the legal profession. Law schools replaced apprenticeship, and then ABA-approved law schools replaced shorter and cheaper night law schools. A formal, written bar examination run by a central administration under the state supreme court replaced informal judicial interviews. Over time, most courts were run by lawyer-judges and procedures, and the law itself grew much more complicated.
Professionalization and complexity undoubtedly brought benefits to our increasingly populous, urban, industrializing country. But the growth of law came at great cost to immigrants and the poor. They faced a bevy of legal and quasi-legal problems, including loan sharks, unsavory landlords who could evict them without notice, and employers who would refuse to pay wages earned. Upton Sinclair’s The Jungle memorably chronicled how recent immigrants were bewildered and exploited by meatpacking plants and predatory home sellers and lenders. Between court fees, language and cultural barriers, and the cost of lawyers, there was little justice for the poor.
In response, charities founded legal aid societies in many large cities. The first recorded American legal aid society started in New York City in 1876 as an offshoot of The German Society, a charitable organization focused on assisting German immigrants.6 In 1890, it was renamed the Legal Aid Society of New York, with an expanded mission to render legal aid to the “worthy” poor. In 1888, the Ethical Society of Chicago started a similar organization.
By 1917, there were forty-one legal aid societies, including a handful of government-sponsored public-defender programs and a few nascent law school clinics. These clinics were not offered for credit or as part of the curriculum, but did let students volunteer to help the poor.
The publication of Reginald Heber Smith’s masterwork Justice and the Poor, in 1919, sparked increased interest in legal aid. Smith treated the problem not as one of substantive law reform, but one of simplifying procedures and improving access to legal services. That argument was, and still is, controversial in poverty-law circles. It is echoed in the continuing debate over focusing on representing individual clients versus broader constitutional and legislative reforms. Justice for the Poor also argued that legal aid was a necessary bulwark against communism and worker revolution. It noted that unfair court procedures might “[t]hrough bitter disillusionment” turn immigrants and others “to the influences of sedition and disorder.”7
The book is also an exhaustive and fascinating look at the state of the poor in America’s courts around 1920. Its description of the inadequacies of state-appointed counsel in criminal cases and pro se representation in civil cases remains utterly familiar. Despite almost a century of effort, more has remained the same than has changed.
Justice and the Poor was remarkably influential. Elihu Root wrote a glowing preface, and the ABA founded a Special Committee on Legal Aid. The ABA brought out the big guns for the project: Former Supreme Court Justice and Governor of New York Charles Evans Hughes chaired it during the interim before he returned to the Court as Chief Justice in 1930. The Committee launched a nationwide effort to expand the number and reach of legal aid offices.
Right from the outset, there was tension over who should qualify for such services (Smith and others favored limiting them to the deserving/working poor), and whether to focus on law reform, individual representation, or both. Because bar associations were involved after 1921, legal aid lawyers tended to avoid controversial clients, causes, or aggressive tactics and favored individual cases.8 Advocates disagreed about whether to provide legal aid through pro bono efforts of bar associations, private charitable societies, the government, or some combination thereof. They also differed about whether to focus on providing free lawyers or to include procedural reform as well. These tensions remain to this day.
By the middle of the twentieth century, virtually every city had a legal aid office, sometimes supported by the government. But even though legal aid offices had grown by 1951, population and needs had grown even faster. As a result, the poor’s legal needs remained virtually unaddressed.9
The 1960s and 1970s: The Boom Years for Lawyers (and Legal Aid)
The American legal profession grew dramatically between 1960 and 1980. The growth came after a trough, as the Depression was brutal for lawyers. From 1930 until the end of World War II, the absolute number of lawyers and their incomes shrunk.10 Median lawyer income fell 8% between 1929 and 1933, and real earnings per lawyer were lower in 1940 than in 1929.11
From World War II until the 1980s, the legal profession grew exponentially. There were more total lawyers, more lawyers per capita, more law schools, more law students, and more law school faculty and staff. Even as the size of the profession tripled, lawyer income, from solo practitioners to corporate lawyers, rose steadily through the 1980s and frequently outpaced inflation. The absolute amount spent on legal services grew, and legal services grew as a percentage of GDP. This growth was multifaceted and much of it occurred in the corporate legal market, but the growth in the incomes of solo practitioners suggests that middle-class consumers were spending more on lawyers.
Part of the profession’s growth came from government-supported lawyers, both legal aid and public defenders. The War on Poverty led the federal government to fund and formalize previously independent, charitable legal aid offices. In 1964, the Department of Health, Education, and Welfare hosted a conference on extending legal services to the poor. Attorney General Nicholas Katzenbach spoke, announcing a new federal interest in providing legal services to the poor and emphasizing the use of the law not just to represent individual clients but to change society.12
That same year, Congress passed the Economic Opportunity Act and founded the Office of Economic Opportunity (“OEO”). Two recent Yale Law graduates, Jean and Edgar Cahn, convinced Sargent Shriver to include legal services among the possible uses for OEO funds. Nevertheless, because the first wave of funding was controlled at the community level by community action agencies mostly comprising non-lawyers, little OEO funding went to legal aid.13 Note the irony of the first wave of funding: When poor people chose how to spend federal largesse, lawyers were low on the list.
Later, the OEO just earmarked funds for legal aid societies regardless of community priorities. At first, the ABA and other bar associations resisted OEO funding on the grounds of lawyer independence. In order to gain bar association support, OEO funds went to several hundred existing legal aid societies, which remained under lawyer control. The budget grew steadily to $71.5 million a year in 1972. The program lived up to Katzenbach’s vision, with funds supporting both individual representation and broader law-reform efforts through lobbying and lawsuits.
Note the back-and-forth in this battle. For the first sixty years of legal aid, individual representation was the primary focus. From the mid-1960s until the mid-1990s, the government allowed, and even briefly encouraged, law reform efforts through lobbying, constitutional cases, and lawsuits against government.
But legal aid soon grew controversial. For example, after a successful lawsuit challenging a $200 million cut in Medicaid in California, Governor Ronald Reagan vetoed payment of the OEO grant to California Rural Legal Assistance.14 A compromise was eventually reached, but legal aid had hardly heard the last of Reagan.
Because of this episode and others, supporters worried about political meddling and desired a more formal program. Thus, in 1974 Congress passed the Legal Services Corporation Act. The Act set up an independent Legal Services Corporation (“LSC”). It limited somewhat the types of legal services allowed (for example, it barred representation on non-therapeutic abortions and desegregation cases), but still allowed lobbying and broader law reform efforts.
The signature achievement of the next five years was a massive increase in funding.15 LSC conducted a study of funding and service levels and found that over 40 percent of the nation’s poor people lived in areas with no legal services program. LSC then developed a “minimum access” plan, with the goal of providing a level of funding to support two lawyers per 10,000 poor persons. The strategy proved extremely successful. In 1975, LSC took over a program with $71.5 million in annual funding. By 1981, funding had reached $321.3 million, an amount that met LSAC’s “minimum access” level. LSC was providing funding to 325 separate grantees, covering every county in the United States, as well as Puerto Rico, the Virgin Islands, and Micronesia.
1980–Present: Cuts, Limitations, and the Access-to-Justice Crisis
From the 1980s on, we have seen growing recognition of an access-to-justice problem that extends beyond just the poor. Civil case filings have risen precipitously since the 1960s, and reports of an increase in pro se litigation began bubbling up in the 1980s. Since then, we have seen the trend accelerate and transform from a problem for America’s poor to a problem for America.
Across the same period of time, state and federal courts began to complain about the growth in pro se litigation. Some courts that regularly address cases involving the poor and middle class, like family, housing, and bankruptcy courts, became majority pro se–more than half of their caseload included cases where one or both of the litigants were unrepresented. The pro se phenomenon grew large enough that it was obviously not solely an issue for the poor. Middle-class Americans were likewise stuck pursuing justice on their own, often in hostile settings designed for lawyers.
The trend has been even clearer for the poor. The election of Ronald Reagan in 1980 and increased skepticism in Congress brought a swift end to LSC’s two years of full funding. Reagan sought to eliminate the program altogether, but had to settle for a 25% cut in funding between 1981 and 1982. The cut closed almost 200 offices and caused LSC to reduce its staff and lawyers by a third. While there have been brief periods of respite since 1982, the overall trend has been sharply downward. LSC’s budget was cut 14% to $348 million in 2012, continuing a long-term trend of shrinkage via one step forward, two steps back.16 Adjusted for inflation, the 2012 amount was less than half of LSC’s already reduced funding in 1982.
In 1996, Congress not only cut LSC’s budget another 30%, but also changed its focus, banning large swaths of law reform and lobbying. From then on, federally funded LSC programs were limited to representing individual people in individual cases.
Despite the cuts and the limitations, LSC has done a lot with a little. Between unbundled legal assistance (such as just offering advice or answering questions), aggressive use of paralegals and staff, and representing the maximum number of people, LSC has reached as much of the need as possible under the circumstances.
Nevertheless, LSC has proven controversial and hard to maintain. Even at its absolute high point of funding and service, it claimed to offer only two lawyers per 10,000 eligible persons. That funding level was doomed because of tight budgets, other priorities, and political opposition to LSC’s mission. Legal aid is certainly part of the puzzle in addressing access to justice, but it has repeatedly fallen short of meeting the unmet need. There is neither the willpower nor the money to fund LSC vastly enough to reach the many legal needs of America’s poor. And of course legal aid only reaches the very poor; by law, it cannot serve the needs of the middle class.
Counterintuitively, both the per capita and absolute number of lawyers grew continuously through this period. The competition on the low end of the market has been so fierce that real wages have shrunk by almost a third. At the same time, both the cost of going to law school and student loan debt exploded. This leaves small firm and solo practitioners between a rock and a hard place: Earning potential is lower and debt service is more expensive. And because lawyers are licensed by each individual state, and the process of joining another state’s bar is expensive and often hard, lawyers cannot easily move to where the jobs are.
As the going has gotten rough, many have left the legal profession altogether. A comparison of the number of law school graduates with the number of working lawyers shows that almost a third of law school graduates since the 1980s are not working as lawyers. Some of these folks found better employment, but placement and survey data suggests that many of them were pushed out.
Why Are There So Few Low-Cost Alternatives?
If there is so much unmet demand, why has the market not provided a solution? The market for legal services is hardly a free market. Barriers to entry are steep and well enforced. Prohibitions on the unauthorized practice of law (UPL), or practicing law without a license, keep low-cost entrants out of the market. Every state in the Union prohibits UPL. The laws are purposefully vague about what exactly the “practice of law” consists of. At a minimum, every state prohibits representing another in court without a law license. States also prohibit giving “legal advice,” but that is much more amorphous. Enforcement has waxed or waned with lawyer fortunes, with a particularly sharp uptick in the Depression. Historically, lawyers and courts have stated that they prosecute the unauthorized practice of law for consumer protection. Yet the vast majority of UPL complaints have come from injured lawyers, not injured clients, suggesting protectionism.17
Law schools account for some of the problem as well. Virtually every American lawyer was required to attend law school before practicing. Law schools generally teach law students only one way to handle a legal issue: individually and with a great deal of research and hedging. This means that lawyers are not trained in how to rationalize and routinize legal work. To the contrary, they are taught that good lawyering requires individual customization. The cost of law school also discourages discounting. Legal education is expensive in part because it requires three years of full-time, in-person classes, much of it in small to mid-size classes taught by tenured professors who are paid to do scholarly research as well. Debt loads are such that if prices fall too much, lawyers will pursue non-legal work.
Procedural and substantive complexity also plays a part. Lawyers are trained in complexity for a reason: American law is extraordinarily complex at all levels. Legal forms and in-court checklists will naturally fail to cover every applicable statute, case, or regulation, let alone the various procedures available. Consciously or unconsciously, American law and courts seem to have been designed to require an excellent lawyer to operate.
In a moment, we will discuss some of the various solutions to these problems for the poor: increased pro bono, law school clinics, or a constitutional right to civil lawyers for the poor. You may notice that there is not much discussion of solutions for the middle class. That is because, traditionally, reformers have not proposed solutions for that market. This book notes the new approaches that are promising—pro se court reform, technology, licensing non-lawyers to do legal work, etc.—but for years, the organized bar has vigorously enforced UPL and resisted many of these reforms. As constructed, the system is actually a wonderful advertisement for legal services. The harder it is to proceed pro se, the more likely anyone who can afford it will hire a lawyer.
In a famous episode of the TV show The Simpsons, overmatched beatnik parents bring a misbehaving child to a psychiatrist for help. Their plea to the psychiatrist? “We’ve tried nothing and we’re all out of ideas.” That quote encapsulates the legal profession’s approach to middle-class legal needs.
Other Solutions: Pro Bono, Law School Clinics, and Court Appointments
In comparison, the bar has been concerned about the plight of the poor and there are some sources of free or subsidized legal help for the poor. There is, for instance, a longstanding tradition of representation pro bono. In 1836, the first written statement of an American lawyer’s professional obligations provided: “I shall never close my ear or heart because my client’s means are low. Those who have none, and who have just causes, are, of all others, the best entitled to sue, or be defended; and they shall receive a due portion of my services, cheerfully given.”18 University of Pennsylvania law professor George Sharswood’s Essay on Professional Ethics likewise argued, “there are many cases in which it will be the lawyer’s duty to work for nothing.”19 But this rhetoric was not matched by reality. It is unclear when or how often lawyers did pro bono work in the nineteenth and early twentieth centuries, and there is little evidence to suggest it has ever been particularly widespread.20
Since the 1960s, the ABA and other bar associations have encouraged pro bono work by adopting non-binding ethical rules and encouraging law firms and law schools. While pro bono work is increasing, it cannot begin to meet the legal needs of the poor.21 There are not enough lawyers with the needed expertise, especially since many formal pro bono efforts focus on law firm lawyers or law students who likely have little expertise in the legal problems of the poor. Because pro bono is unpaid, it is often aimed at what most interests the individual lawyer, like nonprofits or the arts, rather than the most desperate needs of the poor.
Another source of legal representation for the poor is law school clinics and externships. Law school clinics first appeared in the 1920s, became a part of regular law school curricula in the 1940s and, thanks to Ford Foundation grants, became widespread in the 1960s. Now, all American law schools have some type of experiential learning as an aspect of their curriculum, and many have quite extensive clinical programs. These clinics generally offer outstanding representation, but several bottlenecks confine them to representing a small number of clients. First, because faculty must closely supervise and teach the students, the student/faculty ratio is necessarily low, often as low as eight to one. This makes clinics very expensive to run in a time of tight law school budgets. Second, the clinics are often (and appropriately) run for the educational benefit of the students. This means they favor certain types of cases, like those that offer more opportunities for drafting or court appearances, or intellectual property disputes, rather than focusing on areas that help the most poor clients.
For more than five centuries, courts have also had the power to appoint attorneys in individual civil cases for poor litigants who are in particular need.22 Many colonies and states continued this English tradition by statute.23 In practice, however, American courts rarely, if ever, use this power.24 In Mallard v. United States, the Supreme Court reviewed the historical record and concluded that civil appointments of counsel were infrequent, and courts had never sanctioned lawyers for declining such appointments.25 The practice may have become more widespread recently, but there is no evidence that courts are willing to appoint lawyers in the huge numbers necessary to address the current need.
Other Solutions: Civil Gideon
Because of the relative failure of other solutions, advocates and bar associations have pinned their hopes on a civil Gideon right: a right to a free, appointed lawyer in some subset of particularly serious civil cases. Calls for a civil Gideon right followed quickly on Gideon itself. For example, in 1965, a poor Texas litigant argued that the Fourteenth Amendment required appointment of counsel in a property dispute, but the Texas appellate court rejected that claim.26 Likewise, a 1967 Yale Law Journal Note argued for “The Indigent’s Right to Counsel in Civil Cases.”27
No court has adopted a broad civil Gideon right, but there were several hopeful signs from the Supreme Court. In re Gault extended Gideon to juvenile proceedings, even though juvenile proceedings were not strictly criminal in nature.28 As noted in Chapter 4, in 1972, Argersinger v. Hamlin extended Gideon beyond felonies to any misdemeanor prosecution that resulted in jail time, regardless of how short that sentence might be.29
Taken together, Argersinger and Gault made civil Gideon look quite possible. Gault established that Gideon was a due process right that extended beyond criminal cases or Sixth Amendment protections. Argersinger set a low bar for the protected liberty interest. Civil cases dealing with termination of parental rights, deportation, or even housing and welfare seemed at least as important as a day or two in jail on a misdemeanor charge.
Nevertheless, like many other dreams of poverty lawyers, civil Gideon’s fate was essentially sealed when the (liberal) Warren Court drifted into the (more conservative) Burger and then Rehnquist Courts. Whatever law reform/constitutional projects remained uncompleted by the mid-1970s faced a substantially different legal landscape in the 1980s.
The Court finally turned to the possibility of civil Gideon in the 1982 case of Lassiter v. Department of Social Services of Durham County,30 which dealt with Durham County, North Carolina’s case terminating Abby Gail Lassiter’s parental rights.31 In many ways, Lassiter was an optimal civil Gideon case. After imprisonment, the right to parent one’s children is perhaps the strongest constitutional liberty interest. Lassiter itself stressed that the parent’s interest is “important,” termination of her rights is “a unique kind of deprivation,” and so the “parent’s interest in the accuracy and injustice of the decision to terminate his or her parental status is, therefore, a commanding one.”32 If there were ever a civil case where the need for counsel seemed obvious, this was it.
But Lassiter herself was unsympathetic: a negligent mother who took no interest in her child and was convicted and imprisoned for first-degree murder. Nevertheless, to deny Ms. Lassiter’s appeal, the Court still needed to place the case within its post-Gideon precedents. Lassiter drew a bright line at imprisonment: “The pre-eminent generalization that emerges from this Court’s precedents on an indigent’s right to appointed counsel is that such a right has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation.”33 With this generalization in mind, the Court created a “presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.”34
Even though parents have a powerful interest in protecting their parental rights against termination, that interest does not require a lawyer in every case. Other procedural protections may suffice, such as written notice, a full hearing, and an appeal. The Court’s description of the facts made it clear that a lawyer was not required in Ms. Lassiter’s case and thus not in every termination of parental rights case. The case involved no particularly complicated law or facts. No experts testified. Ms. Lassiter had a chance to present her case and cross-examine witnesses. The Court left open the possibility that a lawyer might be needed in some termination-of-parental-rights cases, and some courts do so in some or all termination cases.
Despite defeat in Lassiter, civil Gideon remained a dream of poverty lawyers, bar associations, and judges. In the mid-1990s, federal district court Judge Robert Sweet and others relaunched interest in civil Gideon.35 Over the next fifteen years, a flood of academics, the ABA, and state bar associations declared support for the concept. There have been a few close calls under state constitutional law36 and a smattering of state legislative successes, but no state court has found any sort of broad civil Gideon right.37
The chances look even slimmer since Turner v. Rogers in 2011. If Lassiter did not permanently close the door on a broad civil Gideon right, then Turner v. Rogers did.38 In Turner, a pro se mother sued a pro se father for not paying child support. The issue was whether the father had an automatic right to appointed counsel before he could be conditionally jailed for civil contempt.
Many activists hoped that the Court would overturn or narrow its earlier precedents and recognize a categorical right to counsel at least in civil cases that deprive someone of liberty. Instead, as discussed in Chapter 7, all nine Justices rejected the claimed right to counsel.
Turner foreclosed any federal civil Gideon right for the foreseeable future. While Turner split 5-4 on whether to require constitutional protections for pro se court procedures, it was 9-0 on the civil Gideon question. Thirty-six years ago, Lassiter rejected a civil Gideon right in a sharply divided 5-4 decision over a vociferous dissent.39 In 2011, the civil Gideon argument could not garner a single vote.
This was true even though Turner dealt with actual imprisonment, and Lassiter had suggested that free lawyers might be needed when incarceration was possible.40 The Court’s unanimous decision against appointed counsel leaves little room for arguments that some other type of civil case (which would invariably involve a lesser liberty interest than a year in jail) might qualify.
The Upshot
After half a century of concerted effort to solve the access-to-justice problem, America has little to show for it. We have tried legal aid, we have expanded pro bono and law school clinics, and we have considered a concerted civil Gideon effort. Despite yeoman’s efforts, all have failed.
We also have a large oversupply of American lawyers and American law school graduates, many of whom thought they were guaranteed a comfortable professional income, yet the market has failed to provide individual lawyers at an affordable rate for the middle class, let alone the poor. The answer should be obvious: Additional hourly work by individual lawyers cannot solve these problems.
Fortunately the answer is staring us in the face, and has begun to take hold. Court reform, legal simplification, and technology can make headway where free and low-cost lawyers have not, if only we properly refocus. Part II describes how we can.