By: Laura K. Abel. Published by: Loyola of Los Angeles Law Review. Published in June 2009.
Several states have a statutory civil right to counsel in certain types of cases, but the legislative intent that led to the passage of these statutes has received little attention until now. Although many of these statutes concern child welfare — for example, keeping children out off foster care when possible — there is no reason to believe that a legislature’s willingness to expand or improve the right to counsel is necessarily limited to the child welfare arena.
In passing these statutes, legislators were motivated by expectations of financial savings, a desire to fix failing state child welfare bureaucracies, and notions of fundamental fairness. These statutes bundled the civil right to counsel with larger pieces of societal reform legislation as a means to an end rather than an end in itself. Legislatures often provide funding for specific types of civil legal aid that have been shown to save government money or to have other beneficial effects. There are statutes providing for a right to counsel in cases concerning civil commitment, mandatory medical treatment, paternity, and other types of legal disputes.
Civil right to counsel legislation may be more likely to succeed if it is part of broader legislation aimed at solving a social problem than if it is proposed as a stand-alone bill that lacks the same level of support. An examination of the civil right to counsel legislation as it pertains to child welfare reveals that there is no single path to success because varying political climates mean that a statute or political strategy that succeeds in one place may not succeed in another. Understanding the legislative motivations that led to the enactment of these statutes can prove useful to advocates who seek the expansion of the civil right to counsel.