The latest right-to-lawyer decision by the Supreme Court last week should remind Americans that having legal rights is not sufficient without also having legal representation to enforce or defend those rights, regardless of the ability to pay.
What the Court decided was that a person is entitled to a free lawyer, even in relatively petty crime cases, if a prison sentence is possible. This ruling continues a movement in American law that began decisively about a decade ago to lower the financial barriers which prevent poorer people from obtaining justice in our legal system. Recent developments, moreover, are extending this principle beyond the poor and criminal law area in several directions. This growing momentum may thoroughly open the legal system to routine use by Americans who are now practically shut out of it.
Group legal services or legal insurance programs are on the threshold of mass adoption throughout the country, particularly as part of labor-management or labor union initiatives. As the latest “fringe benefit” in labor negotiations, prepaid legal services could generate a massive protection of citizen rights, whether as consumers or taxpayers. Robert W. Meserve, the American Bar Association President-elect, stated recently that the majority of citizens, who are of middle-income, seek legal assistance only when forced to by an emergency, primarily because of the high price of lawyers. He noted that an experimental prepaid legal services program in Shreveport, Louisiana, involving 600 members of a labor union local paying a small sum per year, offered these workers a choice of lawyers.
But there are many disputes and grievances for which lawyers should not be needed. Instead, what is called “paralegal” assistance is being increasingly recognized as a valued approach. In the recent Supreme Court decision, for instance, not only did some of the Justices urge the use of qualified law students, but the chief attorney for the Justice Department, Erwin N. Griswold, recommended that the Court permit some non-lawyers, such as clergymen, social workers and community leaders, to represent persons accused of misdemeanors in certain situations. His recommendation was not accepted by the Court in this case, but it did foreshadow what is soon to develop.
That is, as more non-lawyers take an interest in how the country’s legal system is operating, it will become apparent that most people for the vast majority of their grievances cannot use the courts or the agencies to enforce their rights. There are tens of millions of legitimate consumer complaints arising out of the purchase of automobiles, food, apparel, appliances, insurance and other services every year. Yet the courts and agencies are either too expensive, too time-consuming or too mystifying to be readily available, usable or even visible.
Even the small claims courts, which were designed to overcome these hurdles, present many of these same obstacles. The Center for Auto Saftety in Washington has completed an extensive study of small claims courts around the country which documented deficiencies so serious as to warrant concern over whether these courts are being used more against consumers than for the fortunate few consumers who manage to initiate complaints before them. The study recommends that non-lawyer “small claims advisors” be attached to each court to advise citizens and that similar advisors be supported to represent complaintants, where requested. Neighborhood arbitration offices are being recommended by specialists as an additional solution to the problem of “little injustices.”
The largest frontier for providing legal services remains the local, state and federal regulatory agencies. In 1970 the Federal Trade Commission ruled that defendants unable to afford lawyers are entitled to legal counsel furnished by the government. The next step would be to provide similar services to indigent citizens.
All in all, these are very sound trends. Rights without representation to enforce or defend them are very often paper rights that feed disrespect for the law.