By Pamela Cardullo Ortiz. Published in Stanford Law & Policy Review. Published in 2014.
This article will explore several strategies that have been proposed for improving neighborhood conditions and promoting mobility and discuss the potential legal strategies that might be employed by poor residents in advancing these strategies.
Is a civil right to counsel a panacea for the ills of the urban poor? Absolutely not. To the contrary, a civil right to counsel can play a role in addressing the everyday legal needs of the poor, but it must not create an excuse for policymakers to abdicate responsibility for addressing inner-city poverty. It is one tool among many. If fully funded and implemented, the creation of a civil right to counsel will necessitate a significant increase in resources devoted to legal aid, and will raise awareness among the poor that they can begin to address the legal issues inherent in their everyday problems. An influx of resources without the creation of a right would have a significant impact on its own, but it is unlikely to happen in the absence of a right.
Some within the access-to-justice community have proposed an alternative model that would create “an entitlement not to a lawyer but to legal assistance appropriate to a claimant’s circumstances and need.” As articulated by Jeanne Charn, this approach would include self-help and brief advice services (what she calls “lawyer-lite”), would encourage innovation in the delivery of legal services, and would be built on empirical research that affectively assesses what type of legal help works best in specific circumstances. Charn’s model looks more like the triage-based model already in place that attempts to deliver the most cost-effective service necessary to achieve the client’s goals.
Like any innovation, a civil right to counsel can cut both ways. There are some who believe the right to counsel in criminal matters has not improved the situation of the poor, and has, perhaps, made things worse. As stated by critical rights theorist, Paul Butler, Gideon “provides a legitimation of the status quo.” Indeed, the failure to adequately fund the indigent defense system has made a mockery of Gideon. “As a practical matter . . . the right to counsel [in criminal matters] means whatever five or more members of the Supreme Court say it does (or what the social understanding of the right is).” Even if a right to counsel were extended to civil matters, it would be up to us to make it mean something.