Access to Justice for All: A Comprehensive Look at the Civil Right to Counsel Across the United States
By Lindsey Cecellia Jackson, Stuart Downey & Bryant Lin
Unlike in criminal proceedings, where defendants have a constitutionally guaranteed right to counsel, not all litigants in all civil proceedings have a right to counsel. Instead the U.S. Supreme Court found a “presumption that an indigent litigant [in a civil proceeding] has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.” In spite of this presumption, the due process clause “does not always require the provision of counsel in civil proceedings where incarceration is threatened,” such as civil contempt proceedings
Even so, “due process is flexible and calls for such procedural protections as the particular situation demands.” In certain civil proceedings due process might still require that an indigent litigant be appointed counsel. Where a civil proceeding does not threaten an indigent litigant’s physical liberty, the Supreme Court directed trial courts to weigh three factors in determining whether counsel should be appointed: “the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions.” Because trial courts often weigh these three factors differently, the civil right to counsel varies among states.
The civil right to counsel also varies among states because some states guarantee such a right that expands on those afforded by the U.S. Constitution and enforced by the Supreme Court. For example, states may implement court rulings that establish rights to counsel, or states may legislate such rights themselves.
With such diversity among state court rulings regarding rights to counsel, we conducted a survey of which states afford what rights to particular civil litigants. Here we lay out the results of our survey and report on the rights to counsel found in each state and the District of Columbia. The chart that follows summarizes the discretionary, mandatory, and qualified rights to counsel in 33 discrete legal areas. Besides serving as a tool and resource, this comprehensive chart shows the progress made and the areas where work is left to be done for unrepresented civil litigants.