To The Readers Of The Metropolitan Corporate Counsel:
For years the Boston Bar Association has stood at the forefront of efforts to improve access to justice for low-income individuals. Among the BBA's singular purposes, as enumerated in its by-laws, is "to serve the public interest by working to increase the availability of justice to disadvantaged persons." Consistent with this mission, the BBA Council in June 2006 voted to support an American Bar Association resolution urging that counsel be provided as a matter of right to low-income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody. The ABA subsequently adopted this resolution.
A right to counsel at the state's expense in civil proceedings where basic human needs are at issue is a subject that has been debated for years. While the United States Supreme Court in Lassiter v. Department of Social Services, 452 U.S. 18 (1981) held in a 5-4 decision that the United States Constitution did not mandate a civil right to counsel, numerous legal services advocates, judges, and scholars have long urged the proposition that a civil right to counsel is not only a positive thing but one that should be recognized as a legal right. Few would argue with the proposition that as a general matter it is better that litigants be represented than not, in terms of ensuring accurate decision-making and thereby reducing the risk of unjust outcomes. Numerous studies prove that parties with lawyers massively increase their odds of winning over parties who represent themselves. I believe that we are now beyond the point of debating whether the civil right to counsel concept is a good idea - we must now address the harder issue, which is how to go about implementing such a right.
Funding is at the crux of this debate: how to provide and pay for such legal representation, and in what types of cases. While hamstrung state budgets and already too limited appropriations for legal services may seem a daunting reality, research and common sense suggests that there is actually likely to be overall cost savings to the state in providing counsel at public expense in various civil cases. Given its stature, the BBA is well-situated to help move the issue forward to the next stage. To this end, I have appointed a Task Force on the Civil Right to Counsel. Chaired by former BBA President Mary Ryan, the Task Force is composed of leaders of legal services organizations, representatives of the bar, academics, and individuals with broad government experience. The task force will address the issue of how to implement such a civil right to counsel. It will consider inter alia the extent to which legislation, litigation, model projects in specific courts or areas, or further cooperative efforts between bench and bar, are called for, as well as the question of what basic human needs are to be covered and how they are to be defined. Our hope is that recommendations will be made that will creditably provide direction in the near term for making this goal a reality in the Commonwealth. While Massachusetts is already in the first tier nationally in providing counsel to low-income people as of right in certain civil cases, there is much more to be done before the full realization of this important right can be achieved.
Anthony M. Doniger