Academic journal article Fordham Urban Law Journal

Housing Gideon: The Right to Counsel in Eviction Cases

Academic journal article Fordham Urban Law Journal

Housing Gideon: The Right to Counsel in Eviction Cases

Article excerpt


In Gideon v. Wainwright, Justice Black commented that "reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth." (1) Since Justice Black made this proclamation in 1963, most Americans intuitively accept the idea of an indigent's constitutional right to counsel in a criminal trial. While lawmakers and advocates debate over how best to deliver these services, and whether or not the right is being met adequately, they generally do not question whether the right exists. (2) Neither the legislative nor the judicial branch, however, has recognized an analogous right to counsel in civil matters. (3) Though government sponsored legal services, public interest law offices and organizations, and pro bono programs at private firms provide legal services to indigent clients, the legal services provided to indigents in civil cases fall far short of the number that are provided to people who are able to pay for legal help. (4)

Scholars and practitioners make both constitutional and ethical arguments for the expansion of legal services and for the recognition of a right to counsel for the indigent client in civil matters. (5) The correct functioning of the adversarial process itself relies on the assumption that both sides are coming to the process with equal legal resources. (6) Equality of resources, however, is frequently not a reality for indigent litigants. (7) In the area of housing law and evictions, for example, advocates have argued that recognizing a right to counsel is the only way for government to minimize the effect of inequality in access to justice, and, in many cases, the only way to prevent homelessness. (8) Others have cited both feasibility and public policy in arguments against recognizing a right to counsel in eviction proceedings. (9)

Part I of this comment lays out some of the arguments for recognizing a right to counsel for indigents as well as some of the proposed solutions for making such a right a reality, focusing on the arguments made in favor of extending a right to counsel for indigents involved in eviction proceedings. (10) Part II discusses some of the problematic aspects of recognizing the right to counsel for indigent tenants, including Barbara Bezdek's critique of reliance on "access to justice" strategies (11) and Gary Bellow and Jeanne Kettleson's arguments against using the wholesale expansion of legal services as a strategy for ameliorating inequality in the civil justice system. (12) Part III argues that despite these important criticisms, a strong doctrinal basis as well as a deep need--especially in the case of eviction proceedings--to recognize a right to counsel for indigents still exists. (13)


In 1963, the Supreme Court held in Gideon v. Wainwright (14) that the Constitution guarantees every person charged with a felony the right to an attorney even if he or she cannot afford one. (15) Since the Supreme Court recognized the Constitutional right to counsel in criminal cases, advocates have argued for a civil version of Gideon. (16) Proponents of this right argue that in many civil cases the stakes are as high as those in criminal cases, and consequently the concept of equitable access to justice is empty without a recognized right to counsel in these cases. (17)

A. Equal Protection Argument

Advocates for the right to counsel for indigent litigants have argued that indigents have a right to counsel in civil cases under the Equal Protection Clause. (18) Generally, if a law "neither burdens a fundamental right nor targets a suspect class, [a court] will uphold the legislative classification so long as it bears a rational relation to some legitimate end. …

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