A Fair Shot... If You Can Afford It?: The Civil Gideon Movement Revisited

       In criminal cases, everyone who faces the risk of actual imprisonment is entitled to legal representation under the 6th amendment to the U.S. Constitution. This has been the law of the land since the 1960s from the case Gideon v Wainwright. In study after study, it has been shown representation by counsel results in material differences in the outcomes of legal proceedings for clients vs when they are not represented by counsel. In fact, the primary reasoning behind Gideon was that it is not possible to have due process for someone without representation by counsel because its so fundamental to fairness and equality before the law. 

      The big difference however is that this applies only for criminal cases, where much more is at stake being someone's freedom or in some cases their life vs monetary damages in civil cases. The issue of civil Gideon, being the movement for civil public counsel has come up in an on again off again debate for decades. 

      One area in particular where civil Gideon becomes talked about so much is in the area of landlord-tenant law. Read an article, watch the news, listen to a report and one can hear stories of indigent tenants in eviction court, being forced to represent themselves and not understanding the material issues or procedures to follow. Landlords on the other hand, typically have private counsel specializing in these very issues. The results are predictable, and the questions this raises about how truly equal before the law we as citizens can be has led to more calls for public counsel to be appointed to represent tenants in these proceedings. 

      Public interest law firms and other legal aid societies play an important role in providing legal services in these kinds of proceedings. Like Public defenders in criminal court, it has been shown that indigent tenants represented by attorneys from these organizations do materially better. Issues like rent abatement for repairs or other breaches of legal warranties landlords owe to tenants in particular are substantially more likely to become issues when indigent tenants are represented by counsel. That being said, sometimes these private entities themselves can be overwhelmed by the sheer demand for legal services and can only do so much. That has led to more calls for the state to intervene because they have the capacity to muster the resources to meet the demand, its the willingness of state governments to do so that is another issue. 

      Landlord-tenant disputes are just the most prominent example of the calls for civil Gideon. Other areas of law such as civil rights and family law also draw a lot of attention on the need for civil public counsel to be available indigent civil clients. Regardless of one's ultimate view on the issue, its an important discussion that should be had in the legal profession and society more broadly.