Poor people's right to counsel in civil cases

The Congress will soon decide the fate of the Legal Services Corporation. Observers predict that there will be at least a substantial cutback in the provision of counsel for indigent Americans. But in the debate no one seems to have noticed a recent Supreme Court decision which suggests that indigents may have a constitutional right to legal representation in a whole range of civil proceedings.

The case was Lassiter v. Department of Social Services of Durham County, North Carolina, a 5-to-4 decision in which the court ruled that an indigent mother did not have a right to appointed counsel in a court proceeding in which she permanently lost custody of her child. Most journalists, and many lawyers, too, have viewed Lassiter as a rejection of indigent parents' right to counsel.

However, focusing on the outcome of Abby Lassiter's appeal obscures the historical importance of the court's decision. The court did not actually rule that parents do not have a right to counsel. Rather, it ruled that the right is not automatic. Speaking for a majority of the court, Justice Stewart held that, in civil cases, the existence of a right to counsel depends on ''the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions.'' Because these factors can vary in termination proceedings, he held that the determination that counsel is required must be made on a case-by-case basis, ''in the first instance by the trial court , subject, of course, to appellate review.''

This was a precedent-setting decision. All of the Supreme Court's previous rulings in favor of the right to appointed counsel had involved criminal proceedings, or at least quasi-criminal ones, such as juvenile proceedings, where personal liberty is at stake. The four dissenting justices held that there is an automatic right to counsel. If we take the other three justices who joined in Stewart's opinion at their collective word, then eight out of nine justices explicitly recognized the possible existence of a right to counsel in a civil case where the state moves against important personal interests - such as parental rights. (Only the chief justice seems to have been willing to rule out the possibility.) In this light, Lassiter is a cautious, but nevertheless striking, expansion of due process doctrine to include the right to counsel in civil proceedings.

Some observers have characterized Justice Stewart's decision as a tortured escape from the logic of past precedents - which will be abandoned or watered down in subsequent cases. But beyond basic respect for the court, there are other good reasons for concluding that the justices who joined in Stewart's opinion meant what he said about the right to counsel in civil proceedings. First, if they did not share his views, they could have joined in the chief justice's opinion, or written one of their own.

Second, if one believes, as they said they did, that the existence of the right to counsel depends on the circumstances of the case, there were sufficient reasons for denying Lassiter's request. In 1975, a North Carolina court found her to be a neglectful parent, and had placed her infant son in foster care. In 1976, she was convicted of murder and given a 25-to-40-year sentence. Since her son was first taken away from her in 1975, Lassiter had apparently made no attempt to see him. Justice Stewart concluded that ''the weight of the evidence'' was that Lassiter had ''few sparks'' of ''interest in her son.''

Third, the court was clearly aware of the broad significance of its decision. At three different times during the oral argument, for example, the chief justice and three associate justices (Blackmun, Brennan, and Rehnquist) asked the mother's attorney whether the right to counsel being asserted would apply to other civil proceedings, such as proceedings to condemn property, to suspend occupational licenses, and to review the foster care status of children. He answered in the affirmative for condemnation and foster care proceedings, but claimed that licensing proceedings were ''distinguishable.'' During the last of these exchanges, Justice Brennan pointed out: ''If we agree with you on this case, we would not be able to defend limiting the rule to this case.''

Only time and the future decisions of the court will determine whether the nascent doctrine enunciated in Lassiter will lead to a full-blown right to counsel in a whole range of civil proceedings, such as divorce, nonsupport, paternity, public housing evictions, denials of welfare, and deportations. But those who doubt the possibility should be reminded that it was statements of the general right to counsel - coupled with denials of the right in specific cases - which eventually led to Gideon v. Wainwright, and the broad right to counsel in criminal proceedings.

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