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Right to Counsel in Civil Cases Gaining International Momentum

Legal aid to poor gaining international momentum

March 3, 2006
By WILHELM H. JOSEPH, JR. and JOE SURKIEWICZ,
Special to The Daily Record

The concept of providing legal counsel to low-income people in civil cases isn’t novel. For example, the right to a lawyer is recognized in England, whose legal system we adopted when the United States was founded.

The right to counsel in civil cases has also been accepted and supported in most countries throughout Western Europe and has spread to South Africa, Australia, Germany and the Czech Republic, to name a few. It’s also taking shape more concretely in Japan, Taiwan and Vietnam (among others).

Unfortunately, the right to counsel in critical civil areas of the law (even in domestic violence, unlawful evictions and child custody cases) has not been recognized in the United States.

However, several developments under way, both here and across the globe, provide hope.

Recently, the National Coalition to Secure the Right to Counsel was founded in the United States by several legal aid and other public entities, bar associations and other law-related nongovernmental organizations.

Local coalition partners include former Maryland Attorney General Stephen Sachs, veteran public interest law leader Clinton Bamberger and Debra Gardner, the Public Justice Center’s director of litigation. They’re working in collaboration with the American Bar Association — whose president, Mike Greco, has put this forth as a major component of his platform.

In October, the Legal Aid Foundation of Taiwan took a giant step forward when it convened an international conference on the right to counsel.

The U.S. delegation consisted of one of this column’s authors, Legal Aid Bureau Executive Director Wilhelm Joseph, and Helaine Barnett, president of the national Legal Services Corp., who shared the American experience with civil legal services leaders from around the world.

One conclusion of the gathering in Taipei, which included representatives from 30 countries, was that the right to counsel is crucial to building democracy and a strong, independent and credible judicial system.

At the conference, it was embarrassing to hear from the mouth of the British representative that England spends many multiples of what the United States spends on civil legal services. It was also intriguing to hear about Vietnam’s approach: essentially providing the indigent with vouchers with which they can purchase legal, health care and other services.

South Africa’s firm commitment to a right to counsel — held within the realities of its scarce resources and a large indigent population after years of apartheid that deliberately impoverished the majority of its population — is encouraging.
The nations on hand at the conference are committed to reconvening again and on a regular basis to advance the realization of the right to counsel universally.

Another encouraging sign: Last fall, the United Nations convened the High Level Commission on Legal Empowerment of the Poor, a global initiative to explore how nations can reduce poverty through reforms that expand access to legal protection and opportunities for all.

Co-chaired by former U.S. Secretary of State Madeleine Albright and Peruvian economist Hernando de Soto, the commission plans to generate political support for reforms to ensure legal inclusion and empowerment for the poor, find ways to expand access to the poor to legal and fungible property rights for their assets, and examine ways to provide broad access to legal systems to help promote economic growth.

The overall goal of the commission (whose members include Gordon Brown, Britain’s Chancellor of the Exchequer, Nobel Peace Prize Laureate Shirin Ebadi of Iran, U.S. Supreme Court Associate Justice Anthony Kennedy, and Mary Robinson, the former president of Ireland) is to make sure countries adopt the rule of law — and a crucial part is access to justice.

Here in Maryland the crisis in access to justice continues to be exacerbated by several factors: the numbers of poor people are on the increase and budget cuts at both the federal and state levels have the harshest impact on social programs that affect the poor.

As a result, this group loses access to health care and education, and sees increases in consumer, housing and public benefits problems (which become even more complex as a result of the cuts).

In addition, the combination of a lack of the right to counsel and a scarcity of resources to support Legal Aid and other legal services organizations in Maryland contribute to a real difficulty in recruiting and retaining the specialist advocates with the commitment, endurance and zeal for representing a not-so-popular segment of society.

From any perspective, providing access to justice for all is a sensible public policy. The approach engenders civility and order in our society and to the extent it’s adopted nationally, it enhances America’s ability to implant the rule of law — and strengthens opportunities for low-income people to emerge from poverty.

Wilhelm H. Joseph Jr. is the executive director of the Legal Aid Bureau. He can be reached at wjoseph@mdlab.org. Joe Surkiewicz is the Legal Aid Bureau’s director of communications. He can be reached at jsurkiewicz@mdlab.org.

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