THE AMERICAN JUSTICE SYSTEM is built on the notion that courts can fairly adjudicate and resolve legal issues so long as each party, either personally or with the help of a legal representative, is afforded the opportunity to plead their case or assert their rights. Unfortunately, in a civil justice system where individuals that cannot afford a lawyer are left to represent themselves, the system not only produces inequitable and disparate outcomes, it also fails to fulfill a core American promise—justice for all. Many would agree that there are laws on the books that do a great deal to protect the rights of the vulnerable, but it is also worth noting that those same laws are seldom used by the people they are meant to protect, unless an attorney is involved. In fact, most Americans experiencing civil legal issues (e.g., issues related to rental housing, public benefits, and consumer debt) receive little to no legal assistance.
A recently released Justice Gap Report from the Legal Services Corporation (LSC) notes that for 93% of the civil legal problems reported, low-income Americans received inadequate or no legal help. That being said, it’s clear to see that the existing framework gives rise to a justice gap that exacerbates the plight of low-income families. Another facet of the civil justice system is the civil legal aid community which plays an enormous role in providing assistance to individuals and families with civil legal issues.
Everyday, civil legal aid providers, and the legal professionals they staff, help vulnerable individuals and families in a number of ways, including for example, by providing counsel in eviction cases to help families avoid homelessness, or assisting individuals to apply for vital food and/or unemployment benefits or helping individuals appeal wrongful denials of public benefits. Unfortunately however, these organizations face budget challenges that affect everything from recruitment and retention to availability of resources. The consequence has been that while millions of low-income American families are eligible to receive legal assistance, budget constraints have made it so that many who are eligible for and need civil legal help are unable to obtain it. Moreover, LSC, which currently serves as the nation’s single largest funder of civil legal aid for low-income individuals, has reported “that LSC-funded organizations are unable to provide any or enough legal help for 71% of the civil legal problems brought to them; this translates to an estimated 1.4 million problems over the course of a year.”
All this means that oftentimes vulnerable individuals and families that come into contact with the civil justice system emerge worse off due to lack of legal representation or assistance. Consider some of the facts that have been reported, for example: 95% of debt cases are resolved in favor of collectors, and where collectors unscrupulously seek to garnish the wages of individuals who also serve as the financial head of their household, the effect is often that the family is unable to make rent at the end of the month and is vulnerable to eviction, food insecurity, or worse. Only 37% of all immigrants and 14% of detained immigrants go to court with lawyers at their side. This means that most individuals must learn complex immigration rules and assert their legal rights for themselves, oftentimes with language as a barrier and under constant fear of being detained or deported or leaving family behind with no financial support. On average only 3% of tenants are represented in eviction proceedings as compared to 81% of landlords.
The result is a court system that puts ordinary people, and particularly those unable to afford a lawyer, at risk of homelessness and poverty. Moreover, the effects of displacement are disproportionately felt by female Black and Latino renters. These fact patterns are only part of the picture. It has become increasingly clear that access to legal assistance leads to more equitable outcomes for assistance to individuals and families facing hardship and poverty. The Access to Counsel Movement Civil justice proponents have long argued that individuals ought to have access to legal representation where basic necessities are at stake in a court case (e.g., housing, public benefits, or healthcare). This is because for many, civil proceedings can be precipitous events that lead to housing insecurity, food insecurity, and financial insecurity. Recognizing these impacts, some state and local governments were early to implement programs aimed at ensuring legal representation for low-income individuals.
In Maryland, the result has been a series of locality specific access to counsel laws and programs. For example: In December 2016, Prince George’s County Council passed a resolution, establishing a legal representation program for detained county residents facing deportation and sought to improve language access for government services. The county selected two local civil legal aid providers, the Capital Area Immigrants’ Rights (CAIR) Coalition and CASA de Maryland, to implement the program. In June 2020, funding from the Immigrant Justice Corps (IJC), along with additional County funding helped to ensure the program could provide representation for every detained and unrepresented person in Prince George’s County. In December 2020, in response to the growing eviction crisis brought about by the pandemic, the city of Baltimore made history by becoming the seventh jurisdiction in the nation to provide a right to counsel for tenants in eviction cases after reports found that nearly 96% of landlords had legal representation in eviction-related court matters, while just 1% of tenants did.
The COVID-19 Pandemic and Expansion of Access to Counsel Programming in Maryland
The debate around how to go about addressing the inherent issues in the civil justice system is not a new one, but perhaps no other event put the systemic inequities of the system on display as the COVID-19 pandemic. Moreover, out of the many responses and recommendations to address civil legal issues exacerbated by the pandemic, access to counsel programs have emerged as a winning strategy for ensuring and advancing justice for the nation’s most vulnerable communities. For example, in response to the pandemic the Maryland Attorney General’s Office together with the Maryland Access to Justice Commission convened a COVID-19 Task Force of high-level and diverse leaders from across the state to examine the pandemic’s impact on Marylanders and to make recommendations on how to deploy the legal system in response. Many of those recommendations were taken up by the legislature and transformed into law. One such recommendation was the creation of the statewide access to counsel in evictions program. In addition to securing funding and data collection resources for the program, the 2021 Legislative Session saw a number of advancements in the access to counsel space as bills in the areas of immigration, and foreclosure were introduced by lawmakers and strongly supported by advocates in the civil legal aid community.
Notably, not only is the immigration court system overrun with a backlog of nearly 1.6 million cases, but most individuals navigate the system alone and without a lawyer. In light of the apparent issues, Maryland’s lawmakers introduced bills that would establish and fund a statewide Access to Counsel in Immigration Proceedings Program. The program, which was strongly supported by the civil legal aid community, would have ensured legal representation for residents of Maryland subject to removal from the United States.
As pandemic protections have ended, foreclosures across the country have steadily begun to rise with reports listing Maryland as one of the top 10 states with the highest rates of foreclosure in 2021. In response, state lawmakers introduced legislation that sought to establish and fund the Access to Counsel in Foreclosure Proceedings Program which would have ensured that low-income individuals had access to legal representation in certain foreclosure proceedings. Access to Counsel Movement on the Horizon Though neither bill passed, both bills worked to drive the discussion around expanding access to counsel programming to ensure equity and justice for Marylanders across the state. Nationwide, the access to counsel movement has seen the biggest expansion in the eviction and housing space.
To date, city governments in New York, Newark, and Cleveland have all established laws that ensure legal representation for low-income residents, with other jurisdictions providing legal representation to renters facing eviction without income-eligibility requirements (e.g., San Francisco, California; Boulder, Colorado; and Kansas City, Missouri). Moreover, cities that passed access to counsel legislation have reported seeing a consistent drop in evictions. These outcomes that not only demonstrates the benefits that ensuring access to counsel can have for individuals, families and communities as a whole, but also makes the case that access to counsel programs are an effective tool in the fight for a more just and equitable civil justice in America.