The U.S. Constitution guarantees the right to counsel to those accused of criminal acts, and for several decades courts have been required to provide legal representation to those who cannot afford to hire their own attorneys. Parties in civil lawsuits have no such guarantee; however, civic and legal organizations, as well as the federal government, have made legal representation available to low-income persons through a variety of mechanisms. The author outlines the public defender system used in criminal cases and discusses efforts made to provide counsel for parties in civil cases.

THE UNITED STATES views itself as a society organized on principles of law. It adopts the democratic philosophy that those laws should be applied equally to all persons who come before its courts, regardless of wealth, family history, and social position, as well as gender, race, religion, national origin, ancestry, and many other personal distinctions that are irrelevant to the determination of the legal issues before the court. Creating and maintaining a system designed to provide fair and even application of laws to all persons is very important if the justice system is going to have credibility and be perceived as a system that represents the United States' democratic ideals.

As reflected in the well-known phrase "justice is blind," we expect courts and the judges who hear cases to disregard such irrelevant personal characteristics as wealth and to apply legal principles based on the merits of the case, rather than the identity of the parties before the court.

However, even when the substantive law is not skewed in favor of the wealthy and when judges in good faith apply the law fairly to the cases before them, those who cannot afford to hire a lawyer to represent them face a serious problem. Given the complexity of the law today, an unrepresented person appearing in court with an adversary who has legal representation is at a distinct disadvantage.

In Justice and the Poor (1919), Reginald Heber Smith argued that the effects of denying justice to people who cannot afford a lawyer produces a sense of helplessness, which progresses to bitterness and then to contempt for law, disloyalty to the government, and anarchy. The concern is that the poor will come to view the justice system as containing only laws that punish and never laws that help them, and to believe that there is one law for the rich and another for the poor. For these reasons, as well as from a sense of justice and fairness, many legislators, judges, lawyers, advocates for low-income persons, charitable organizations, and others have attempted to put into place programs designed to assist low-income persons obtain legal representation when they need it.

In the United States, the issue of whether or how to provide free legal representation to the poor has been approached differently in two distinct contexts: (1) criminal cases having penalties involving potential jail time or death, and (2) other kinds of criminal cases and all civil cases. Criminal cases are those in which the government (federal, state, or local) charges a person with violation of a criminal statute or code. Examples are prosecutions for murder, rape, kidnapping, assault, theft, burglary, arson, and so forth. Civil cases are, generally speaking, all matters that are not criminal in nature. Examples are divorce proceedings, actions for breach of contract or breach of lease, probate proceedings, negligence cases, and property disputes.

Right to Representation in Criminal Cases

In the United States, the right to have assistance of an attorney in a criminal proceeding has been a constitutional protection since the Bill of Rights (the first 10 amendments to the U.S. Constitution) was adopted in 1791. The Sixth Amendment to the Constitution provides, in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defence."

At the time the Sixth Amendment was enacted, the right to assistance of counsel did not mean the right to free counsel appointed by the court or provided by the government. However, in Johnson v. Zerbst (1938), the U.S. Supreme Court held that the Sixth Amendment entitles a person charged with a federal crime to appointed counsel if the person cannot afford to hire an attorney. In 1963, the Supreme Court applied the same rule to criminal prosecutions brought by the states or subdivisions of the states, in felony cases where, if convicted, the defendant could be deprived of life or liberty (Gideon v. Wainwright).

Providing Free Legal Services

More than 170 years elapsed between the adoption of the Sixth Amendment and the time it was construed to require the government to provide a free attorney for indigent criminal defendants. One obvious reason for delay in reaching this conclusion is the cost of financing such representation. Unlike other constitutional procedural protections in criminal matters, such as the rights to remain silent and avoid self-incrimination under the Fifth Amendment or the protection against unreasonable searches and seizures under the Fourth Amendment, the right to appointed counsel costs money.

The Supreme Court did not provide guidance for implementing its decision, so the federal, state, and local governments had to develop systems to do so, using public funds. As a result, the public defense system has grown and evolved over time. Today there are four primary models for providing representation for indigent defendants, as outlined in "Keeping Gideon's Promise" by Charles J. Ogletree, Jr., and Yoav Sapir (New York University Review of Law and Social Change, 2004). They are:

Assigned Counsel: Under this approach, lawyers from private firms are appointed to represent criminal defendants in particular proceedings. This is sometimes done on a case-by-case basis, informally or through a rotation system, using lists of lawyers who have expressed willingness to serve as counsel for the poor. The attorneys' fees usually are paid by the state or the county, and fees vary according to the type of case, number and type of court hearings, number of hours worked, and other variables.

Contract Counsel: The contract method also relies primarily on private attorneys to represent poor criminal defendants. In this system, the state or county enters into contracts with attorneys who agree to handle specified types of cases for a particular time period.

Public Defender Systems: Public defender systems generally involve funding full-time employees at a nonprofit organization responsible for handling indigent criminal defense cases in a particular jurisdiction.

Mixed Systems: Mixed systems usually combine the public defender approach with any of the other methods. The need for a mixed system arises from the conflicts of interest that can occur when there is a need to represent criminal defendants having inconsistent legal positions, including codefendants in the same indictment.

Today, approximately 80 percent of all criminal defendants are represented by appointed defense counsel, according to Stacey L. Reed in "A Look Back at Gideon v. Wainwright After Forty Years" (Drake Law Review, Fall 2003). States are free to choose their own indigent defense system, but individual localities may choose how to implement the systems. For example, in Virginia, some localities use only court-appointed attorneys, while others use a public defender system that is sometimes supplemented with court-appointed attorneys.

In addition to the indigent defense representation systems described above, many lawyers across the country volunteer to represent criminal defendants on a completely voluntary, free basis, as part of their contribution to the communities in which they live, and as part of providing pro bono publico professional services (that is, services performed "for the public good"). However, although members of the private bar provide some support through their pro bono efforts, the vast majority of indigent criminal defense representation is provided through the public defense system.

Pro Bono Service in Civil Cases

In the United States (unlike in England), each party to civil litigation ordinarily is responsible for paying his or her own legal fees, unless the case involves a contract between the parties that provides for payment of the winning party's fees by the losing party or in the relatively rare case where a statute provides for recovery of attorneys' fees from the losing party by the prevailing party. (Such statutes usually relate to cases involving consumer fraud or civil rights.)

Also, in matters where there is a likelihood of a substantial recovery (such as in some car accident cases and other types of negligence litigation where liability is clear and damages are large), plaintiffs may be able to find a lawyer who will take the case on a "contingency fee" basis, where the fees to be paid are based on a percentage of the amounts recovered, and the client does not have to pay any fees if there is no recovery.

Nothing in the U.S. Constitution addresses the right to counsel in a civil case. This distinction is understandable because the Bill of Rights was adopted largely to identify certain individual rights that the government was not allowed to intrude upon. In a criminal prosecution, it is the government that is attempting to prove that the defendant committed a crime and thus should be deprived of life or liberty (through capital punishment or prison confinement) or money (in the form of fines or penalties). The vast majority of civil cases do not involve the government as a party, so there was no need to address in the Constitution or Bill of Rights the question of whether parties to civil actions had a right to counsel.

Although there are some efforts in the United States to extend the constitutional right to representation to those who cannot afford to pay an attorney to various types of civil cases, the federal courts have not ruled that there is such a right generally. The Supreme Court has ruled in Boddie v. Connecticut (1971) that poor people seeking to obtain a divorce may do so without paying a court filing fee, "given the basic position of the marriage relationship in this society's hierarchy of values and the concomitant state monopolization of the means for legally dissolving this relationship." The Court also has held that, in cases involving the government's efforts to terminate parental rights (usually due to alleged mistreatment or neglect of the children), appointment of counsel for indigent defendants should be considered on a case-by-case basis (Lassiter v. Department of Social Services of Durham County, 1981), and that the costs of obtaining a transcript of the parental termination rights proceedings for appeal purposes must be waived when the transcript is critical to an appeal of the decision (M.L.B. v. S.L.J., 1996). The Supreme Court has not expanded these holdings into other areas, where the rights at issue were not deemed to be as important (or "fundamental" in the words of the Court).

Although the courts have not recognized a "fundamental right" for the poor to have legal representation in civil cases, there is no question that many kinds of civil legal matters affect the lives of individuals in a very profound way. Examples include obtaining domestic violence restraining orders, determining child custody and visitation rights, avoiding unjustified eviction from a residence, dealing with aggressive creditors' actions and foreclosures, and recovering unpaid wages.

Recognizing the importance of ensuring that low-income persons have access to the courts, beginning in the late 1800s private organizations began providing legal representation to the poor in some major U.S. cities. As summarized by John S. Bradway in Legal Aid Bureaus (Public Administration Service, 1935), the Legal Aid Society of New York was founded in 1876, two legal aid organizations in Chicago began operations in 1885 and 1888, and the Boston Legal Aid Society was founded in 1914. By 1917 there were 41 legal aid programs across the United States.

These efforts by private organizations continued to gain ground. The American Bar Association and local bar associations started supporting the provision of legal services to the poor in the early part of the twentieth century. These local legal services organizations were the primary means of delivering civil legal services to indigents until the mid-1960s, when the federal government passed the Economic Opportunity Act and created the Office of Economic Opportunity (OEO) as part of that era's War on Poverty.

In 1964, the Economic Opportunity Act created local Community Action Agencies, which were mostly nonprofit organizations, and provided direct funding for their activities. Prior to the passage of the Economic Opportunity Act, local legal aid programs were funded primarily by city and county governments and private organizations. The total funding for these offices as of 1965 was only $4 million, with only 400 full-time legal aid lawyers available to serve nearly 50 million poor people. By 1966, the OEO had allocated over $25 million to more than 150 legal services programs. By 1971, the OEO contribution to civil legal assistance was $56 million, and 2,660 staff attorneys were working in more than 850 offices in 250 locations.

In 1974, Congress created the Legal Services Corporation (LSC), an independent private corporation with an 11-member board appointed by the president with the consent of the Senate. Like the OEO, the LSC was not to provide direct legal representation, but would instead provide financial assistance to qualified local programs.

Congress has varied the LSC's funding substantially over the years, and recent budget cuts have resulted in a substantial reduction in the availability of legal services to low-income persons through LSC-funded programs. Many people now must look elsewhere or be unrepresented. The question remains as to how this need for legal representation can be addressed.

The Legal Profession's Response

The American Bar Association (ABA) has published a set of model rules of professional conduct for lawyers. Because lawyers in the United States are licensed by the respective states, the rules are not binding on lawyers or on the states, but rather serve as suggestions and guides. However, the states review and often adopt ABA guidelines, making whatever revisions they believe are appropriate for their respective jurisdictions.

Within the past decade, the ABA created a model rule that encourages private bar members to perform at least 50 hours of pro bono publico services per month. To date, at least 16 states have adopted some form of the ABA model rule, with goals for numbers of annual pro bono hours that vary from state to state.

The ABA sponsors or is involved in a variety of programs designed to promote pro bono activities by the private bar. More information regarding the ABA's various pro bono efforts may be found on the Internet at http://www.abanet.org/legalservices/probono/home.html.

Another organization dedicated to increasing pro bono activities of the private bar is the Pro Bono Institute (PBI), a small nonprofit organization established in 1996 and housed at the Georgetown University Law Center in Washington, D.C. Like the ABA, PBI does not provide direct legal services to the poor. Instead, it provides research, consulting services, analysis, and assessment of pro bono programs, and provides publications and training to a broad range of legal audiences. As part of its effort, PBI asks major law firms across the country (having 50 lawyers or more) to commit to provide pro bono services, on an annual basis, in an amount equal to 3 percent or 5 percent of the total hours of billable services rendered per year. (Each self-selecting, participating firm chooses which of these two percentages it wishes to commit to perform.) PBI also has programs encouraging corporate legal departments to perform pro bono services. More about PBI can be found on the Internet at http://www.probonoinst.org/project.php.

Bar associations and other legal service providers in various state and local jurisdictions have also stepped up, in varying degrees, to assist in providing pro bono services to the poor. We will use Washington State as one example, but other states have their own approaches to the situation.

In 1992, the Washington State Bar Association (WSBA) resolved that each of its member attorneys should contribute to "public interest legal service" to low-income persons or to matters designed primarily to address the needs of the low-income individual in the state. A conference held in 1994 developed the Volunteer Attorney Legal Services Action Plan. In the same year, the Washington Supreme Court appointed an Access to Justice Board, which is responsible for coordinating the efforts of various organizations in Washington State to provide civil legal services to low- and moderate-income people.

Two publicly-funded programs available to residents of Washington State are the Northwest Justice Project (NJP) and Columbia Legal Services. NJP representatives provide telephone consultations to financially eligible clients. In cases requiring further assistance, NJP can refer the matter to members of the bar who have some expertise in the particular area of law at issue. Columbia Legal Services employs staff attorneys to represent low-income clients in civil matters. In addition, there are at least 24 independent pro bono programs in Washington State, each having full- or part-time staff and panels of volunteer lawyers. These private sector programs work cooperatively with NJP and Columbia Legal Services in efforts to provide civil legal assistance to low-income persons.

The King County Bar Association is one example of these programs. It provides assistance to low- and moderate-income people in its jurisdiction, through its own staff attorneys, through neighborhood legal clinics, and through an extensive panel of volunteer lawyers. Other legal service providers include the Spokane County Bar Association, the Northwest Women's Law Center, the Eastside Legal Assistance Program, the Northwest Immigrant Rights Project, the Washington Advocacy and Protection Service, and Washington Attorneys Assisting Community Organizations (a statewide program designed to involve business lawyers in assisting nonprofit, community-based organizations in nonlitigation legal matters on a pro bono basis).

Washington State has adopted a version of the ABA's model rule, which establishes a goal for WSBA members to perform at least 30 hours of pro bono publico services each calendar year and provides for a recognition award to be presented to members who report that they have performed at least 50 hours of such services during the year. The rule became effective in September 2003.

There is much more to be done to meet the needs of those who cannot afford an attorney, on both the criminal and civil sides of the equation. The efforts to meet these needs are made difficult by limited resources, both in terms of available money and available lawyers. In addition to the lawyers compensated by public funds to represent criminal defendants and to staff the LSC-funded civil programs, it is critical for members of the private bar to discharge their professional responsibility to volunteer their services to assist in this effort. Only through the combined efforts of the public and private sectors and legal practitioners themselves will the democratic ideals enshrined in the phrase "equal justice under the law" have meaning for all citizens.

Andrew A. Guy is chair of the Pro Bono and Legal Aid Committee of the Washington State Bar Association. He also serves as chair of the advisory board of the Seattle University School of Law's Access to Justice Program, as a board member of Washington Attorneys Assisting Community Organizations, and as a member of the Community Legal Services Committee of the King County (Washington) Bar Association. As a partner in the Seattle, Washington, office of Stoel Rives LLP, he litigates commercial, real estate, and bankruptcy cases and is a member of the firm's Business Finance & Insolvency Practice Group and its Trial Practice Group.

The opinions expressed in this article do not necessarily reflect the views or policies of the U.S. government.