April 25, 2008

April 25, 2008 | Commentary on Legal Issues

Should poor defendants have the right to counsel in civil cases? No.

In a nation where about one in every 100 workers is a lawyer-where lawyers tout low flat rates in the phonebook and no-risk contingency fees on late-night TV-only the lawyers' trade association could argue that the government needs to provide free legal representation in civil cases.

Specifically, the American Bar Association (ABA) proposes a new "right" to legal representation in all lawsuits affecting a broad array of "basic human needs."

The dangers of this proposal are obvious. The chief risk is that it will encourage unnecessary litigation. Unlike mediation and other means of dispute resolution, litigation is expensive, slow, stressful and adversarial. It can tear apart families and ruin good relationships. Reducing litigation is a better goal than subsidizing it.

A right to counsel also would increase frivolous claims. Today, indigents' worthy claims are handled by lawyers who either volunteer their services or, believing a case has financial merit, work on a contingency basis. A right to counsel, however, would encourage unscrupulous lawyers to bring bad cases to generate government fees. And if the government's paying, our litigious society would bring even more claims, hoping to get lucky or at least strike a quick settlement.

Automatic government funding for lawyers would deter practitioners from providing free services to the indigent. Indeed, funding for legal services organizations may have already had this effect. And it seems unlikely that lawyers eager to take cases on a government pay scale will be more skilled or experienced than the practitioners who volunteer today.

At bottom, the need for a right to counsel in civil suits is questionable. Most lawyers already volunteer their services, and specialty legal clinics are prevalent. Most importantly, increased competition (due to reforms the ABA largely opposed) has made legal services less expensive in recent years, especially for routine matters.

We need more modest, less risky policies to improve Americans' access to counsel. The key is more competition. This means lowering bars to practice, reducing the cost of legal education, allowing non-lawyers to handle more matters, and expanding the ability of lawyers to offer informal advice over the Internet. If less regulation is appropriate for car mechanics-members of a profession more important to Americans' safety-then it should be good enough for lawyers.

If the ABA truly believes that Americans lack access to counsel, it should do more to persuade its members to volunteer their services. But it is perhaps reflective of the bar's hubris that it instead wishes to create a "right," financed by taxpayers, to the services that only it provides.

Andrew M. Grossman is Senior Legal Policy Analyst at The Heritage Foundation. This article, paired with an opposing article by American Bar Association President William Neukom, was written for CQ Researcher's June 2008 report on "Public Defenders."

About the Author

Andrew M. Grossman Visiting Fellow
Edwin Meese III Center for Legal and Judicial Studies

First Appeared in the CQ Researcher's June 2008 report