The Emerging Right of Legal Assistance for the Indigent in Civil Proceedings

After the Supreme Court declared in Gideon v. Wainwright that indigents have a constitutional right to appointed counsel in criminal cases, attention turned to the possibility that a similar right could be found for civil litigants. Although there is no explicit constitutional guarantee of counsel for the civil litigant, the due process clause, which protects property rights as well as personal freedoms, arguably mandates that there be a right to professional representation of all citizens in all courts. The inability of most laymen to effectively present even a rudimentary case on their own behalf indicates that without counsel a meaningful opportunity to be heard is impossible, and an adverse judgment could thus constitute a deprivation of property without due process of law. This thesis has not met with widespread judicial acceptance. A significant number of recent state and federal decisions, however, have dealt with the question of appointing counsel in civil cases. This note will examine these recent decisions in an effort to provide a framework for analyzing the desirability and constitutional necessity of appointing counsel for indigent civil litigants. After attempting to show that the distinction between civil and criminal cases is an inappropriate basis for determining the need for counsel, an effort will be made to demonstrate constitutional support for supplying indigents with legal assistance in all civil cases. In addition, several specific objections likely to be raised to such a broad expansion of the right to counsel will be considered with an analysis of the merits of each such argument