microphone with caption "lawyerist/legal talk network" below

On this episode, we discuss the civil right to counsel (sometimes called “civil Gideon”) movement with John Pollock. The American Bar Association has endorsed a right to counsel whenever basic needs are threatened, and Pollock leads a national coalition seeking to bring the civil right to counsel to all US jurisdictions.

After listening to the podcast, we’d like to know what you think about the civil right to counsel.

John Pollock

John Pollock is a Staff Attorney for the Public Justice Center and the Coordinator of the National Coalition for the Civil Right to Counsel. He works to establish the right to counsel for low-income individuals in civil cases involving basic human needs such as child custody, housing, safety, and public benefits.

You can follow John on LinkedIn.

Thanks to Ruby Receptionists and Clio for sponsoring this episode!

Listen & Subscribe

To listen to the podcast, just scroll up and hit the play button (or click the link to this post if you are reading this by email).

To make sure you don’t miss an episode of The Lawyerist Podcast, subscribe now in iTunes, Stitcher, or your favorite podcast player. Or find out about new episodes by subscribing to our email newsletter.

Transcript

This transcript was prepared by Rev.com.

Voiceover: Welcome to The Lawyerist Podcast with Sam Glover and Aaron Street. Each week, Lawyerist brings you advice and interviews to help you build a more successful law practice in today’s challenging and constantly changing legal market. And now, here are Sam and Aaron.

Sam Glover: Hi. I’m Sam Glover.

Aaron Street: And I’m Aaron Street, and this is episode 134 of The Lawyerist Podcast, part of The Legal Talk Network. Today, we’re talking with John Pollock about the civil right to counsel.

Sam Glover: Today’s podcast is sponsored by Clio Legal Practice Management Software. Clio makes running your law firm easier. Try it for free today at clio.com.

Aaron Street: Today’s podcast is also sponsored by Ruby Receptionists and its smart, charming receptionists who are perfect for small firms. Visit callruby.com/lawyerist to get a risk free trial with Ruby. Sam, since today’s conversation is about access to justice and potentially advocating for a civil right to counsel, we thought it would be interesting to kind of check the pulse of our listeners and see both how they feel about the concept of creating a civil right to counsel, and also about kind of what their commitment to access to justice and pro bono work is, and so we created a really simple two question survey in the show notes for today’s podcast episodes. If you go to Lawyerist and click on the podcast button, you can take that two question survey. Basically, we want to know whether you agree that there should be a civil right to counsel, and how much you spend on pro bono.

Sam Glover: Obviously, pro bono, access to justice, are related but not identical concepts, but we just thought it would be interesting to get an idea for that. So, go do that please. If you’re listening to this podcast later, you can find all of our podcasts on lawyerist.com/podcast, and let us know.

Aaron Street: Yeah, and we’ll make sure to report your survey results next week so you can find out how much you all are committed to these things.

Sam Glover: That’s right. And now, here’s my conversation with John.

John Pollock: Hi. My name is John Pollock. I’m a staff attorney with the Public Justice Center and coordinator of the National Coalition for Civil Right to Counsel, which works to establish a right to counsel in civil cases that involve basic human needs, such as shelter, safety, sustenance, health, and child custody.

Sam Glover: Cool. Well, welcome John. Thanks for being on the podcast.

John Pollock: Thank you for having me.

Sam Glover: Let me take those two organizations in turn. Tell me a little bit more about Public Justice Center. What does it do? Where is it located? What does the staff look like?

John Pollock: The Public Justice Center is an impact advocacy organization based in Maryland that works to bring litigation and legislative efforts that will affect change at the systemic level in Maryland, and it works on a number of different fronts. It works on issues relating to workplace justice and health and housing and other issues, and then also, on right to counsel at the national level. The Public Justice Center was the entity that actually created and runs the National Coalition for a Civil Right to Counsel.

Sam Glover: Got you. Should we think of it as like a think tank, or a lobbying organization, or a public policy institute, or what?

John Pollock: I think it would be considered a little bit of all of those things to some degree.

Sam Glover: Okay. Tell us about the Coalition for a Civil Right to Counsel. You said Public Justice Center started that. Is it truly national? Is it a broad coalition? What does that coalition actually look like and how does it operate?

John Pollock: Right. The coalition was created in 2003, originally by five different organizations that came together because they recognized there was a need to have more organization advocacy around the right to counsel that was happening across the nation, but not necessarily in an organized or centralized way, and the Public Justice Center agreed to staff the coalition, even back then, and currently is the operator of the coalition through my position as coordinator. It is, in fact, a very national organization. We have about 300 participants in 38 different states across the country, including a lot of states that people would be surprised to learn are working very hard to expand the right to counsel in civil cases.

It’s been in operation now for, again, about 15 years now, and we’ve had an incredible growth of the movement. I think the coalition’s doubled in size since the time that I started in 2009, and just working on a lot of different fronts, on the legislative front, litigation, research, and advocacy of all different kinds.

Sam Glover: I always find that when I’m trying to describe the work that a non profit does, or public policy, public interest group does, I always want to know concretely. What are the things? Are you drafting legislation? Are you proving binders of resources and information to legislators? What form does the advocacy take?

John Pollock: It’s actually on a lot of different fronts, and I think that’s one of our strengths. We don’t have one specific approach that we take to this issue. In fact, originally, I would say that our efforts were mostly focused on litigation and education. I’ll take a moment to talk about education because one of the issues that we have with right to counsel is that, there’s a common misperception about how it works in this country. I think that most people in this country have, at one point or another, seen Law and Order or some show like it, and they’ve seen someone be told, “If you are indigent, if you cannot afford a lawyer, one will be provided to you at state expense,” and they don’t necessarily understand that, that only applies to criminal proceedings, not civil ones.

Sam Glover: Only some criminal proceedings, really.

John Pollock: And not even all criminal proceedings. That’s right. Conversely, in some civil proceedings, you actually may be incarcerated and still not have a right to a lawyer, simply because it’s civil. That’s something that I think is very surprising to people, so one of the first things we have to do …

Sam Glover: Wait. Give me an example of that. How would you be in jail on a civil matter?

John Pollock: There are a couple of ways that can happen. One way, for instance, is if you fail to pay child support, because the judge believes that you have the money, even though you don’t actually have it. The judge can actually incarcerate you, potentially indefinitely for that. And another way is, if you have, for instance, a traffic violation and are unable to pay the fine or the fees associated with that traffic offense, you can then be brought back to court. If the court, again, doesn’t believe that you have … If the court believes that you have the money, but you actually don’t, the court can put you into prison indefinitely as an attempt to coerce you into paying, which again, you may not actually have that ability. The judge can be wrong about what your resources are.

Sam Glover: Those are forms of contempt. Right?

John Pollock: Those are forms of contempt, or in some cases, they may be also treated in the fines and [inaudible 00:06:44] context, it gets very complicated because it could also be considered a parole or probation violation. It could be treated as an enforcement of your original criminal sentence, like imposition of suspended sentence. There are a lot of ways it’s done. In these proceedings, it’s actually often, the jurisdiction itself, the city that brings them, doesn’t even itself, which one it’s using. And yet, the title that is put on that may, in fact, completely determine whether a person has a right to counsel, which we find to be just absurd. If the consequence the person is facing is the same and the determination the court is going to use to decided whether to incarcerate them is the same, then it shouldn’t matter what title is put on that proceeding.

Sam Glover: As a lawyer, the distinction between civil and criminal seems so black and white to me, and I hadn’t really ever stopped to consider that they sort of bleed into each other, maybe a lot more than we really think about. Criminal things can have civil consequences and civil things can have criminal-ish consequences.

John Pollock: I think that’s right, and that’s actually a big part of our education message, is that the criminal, civil distinction makes very little sense.

Sam Glover: Yeah.

John Pollock: If you have a person who’s being put into prison, they’re not really going to care whether the label that was put on it is civil or criminal, nor should they. The consequence is identical, and in fact, in some other context, for instance, if you were to go to immigration court, you would see detainees brought in, in leg irons, shackled head to foot, wearing orange jumpsuits facing the judge and a prosecutor. But, the only difference is that it’s considered civil, so they don’t actually have a right to a lawyer. And it’s very hard to tell.

Sam Glover: Yeah. Are you arguing that people already have a right to counsel in civil matters and that we should recognize that right? Or, are we really arguing that it’s just fair and we should extend that right?

John Pollock: We are arguing on different fronts. When we’re in the courts, we’re usually arguing that the Constitution requires that counsel be appointed in certain contexts. I think it’s important here to recognize that we’re not discussing a right to counsel in all civil cases. We’re not … That’s, in fact, one of the reasons why we don’t use the term civil Gideon anymore. That led a lot of people to believe … Gideon V. Wainwright was the case that provided a right to counsel on all criminal cases, and when people hear civil Gideon, they think, “Oh, you’re just looking for the same thing on the civil side,” and we’re not.

Our approach is much more focused. We’re looking at the kinds of cases where the consequences people face are the most severe. And you might say, “Well, who decides that?” The answer to that is, each state makes its own decisions about what kinds of proceedings in their state are the most significant, the most severe, the most in need of counsel, and those are the ones we focus on.

Sam Glover: How do you make that judgment. I’m on a board of non profit, called Homeline, in Minnesota that advocates for tenants’ rights and answers the phone with the hotline for people with landlord, tenant questions. Where would, say, eviction fall, into the area where you’re interested in providing a civil rights counsel?

John Pollock: Well, when they …

Sam Glover: Because I know that New York City just did that, and it was awesome, and of course there’s all kinds of buzz about it.

John Pollock: It did, and New York City’s recognition of a right to counsel in housing cases is tremendously significant, a real watershed for the movement. It’s actually being followed now by other cities that are saying, “Wait. We want to be next. We want to follow New York.” There’s been legislation introduced in other jurisdictions to move in New York’s direction. I think the answer to your question, “How do you decide?”, it really is a decision that people have to make at their state level. They have to look at: How complicated are these proceedings? What do the people stand to lose? How vulnerable are people?

When the American Bar Association in 2006 called for a right to counsel in basic human needs civil cases, it gave five examples of what those might be, and housing was one of them. I think there is a pretty common and growing perception across the country that what people stand to lose in housing is so significant, not just because of the house that they stand to lose, but all of the collateral consequences that flow from that. A person who loses their home may wind up homeless. They may be arrested because they’re homeless. They may wind up in a hospital because of related health conditions. They may lose their job. They may lose their children. There are so many things that tie back to the home, that you have to look at the whole picture and not just the immediate consequence.

Sam Glover: If people are hearing about the civil right to counsel for the first time now, or if they’re just starting to get used to it, how should they start thinking about this? How do you introduce the subject when you talk about it to a new audience?

John Pollock: One of the things that we say is, first of all, again, that we’re talking about cases that involve basic human needs, so we talk to people and we say, “If this sort of case, if you were facing this sort of consequence, do you think you’d need a lawyer?” And most people would say yes, for those kinds of cases. And in fact, what we know and one of the things we often say is, “If a wealthy person would hire a lawyer if they were facing this sort of thing, then that’s sort of a good indication that it’s the kind of thing that we generally think as a society is important,” so that’s often where we start. We look at what people stand to lose, and explain to them. These are the consequences. These are the direct consequences. These are the indirect consequences. Given, all of that, do you think that a person should be entitled to a lawyer?

That often really is the thing that is the focus of the conversation, but it’s certainly not the only question, because then, as I’m sure you would appreciate, people say, “Well, what about how much it will cost?” When we’re talking to a legislature about this issue, they may say, “Of course. Yes. We understand that evictions are serious, or domestic violence is very serious. But, how are we going to pay for it?”

Sam Glover: You know what. Let me stop you there, because we need to take a minute to hear fro our sponsors, and then I want to dig into cost, because I recognize that it is much more complicated than just paying some salaries of civil public defenders, basically. Let’s take a quick break, and when we come back, let’s talk about cost.
Speaker 4: Imagine what you could do with an extra eight hours per week. You could invest in marketing your firm. You could spend more time helping clients in need, or you could catch your daughter’s soccer game. That’s how much time legal professionals save with Clio, the world’s leading practice management software. With Clio tracking time, billing, and matter management, are fast and easy, giving you more time to focus on what really matters. And, Clio is a complete practice management platform with plenty of tools and over 50 integrations to help you automate daily tasks, such as, document generation and court calendaring. See how the right software can make it easier to manage your practice. Try Clio for free today at clio.com.

Aaron Street: This podcast is supported by Ruby Receptionists. As a matter of fact, Ruby answers our phones at Lawyerist and my firm was a paying Ruby customer before that. Here’s what I love about Ruby. When I’m in the middle of something, I hate to be interrupted, so when the phone rings, it annoys me. And that often carries over into the conversation I have after I pick up the phone, which is why I’m better off not answering my own phone. Instead, Ruby answers the phone, and if the person on the other end asks for me, a friendly, cheerful receptionist from Ruby calls me and asks if I want them to put the call through. It’s a buffer that gives me a minute to let go of my annoyance and be a better human being during the call. If you want to be a better human being on the phone, give Ruby a try. Go to callruby.com/lawyerist to sign up and Ruby will waive the $95 setup fee. If you aren’t happy with Ruby for any reason, you can get your money back during your first three weeks. I’m pretty sure you’ll stick around, but since there is no risk, you might as well try.

Sam Glover: And we’re back. John, thank you for segueing to cost, because obviously I think that’s the logical question here is, the civil justice system is huge, and even if we’re just talking about basic human needs and not small companies suing each other. How do we get our heads around balancing the costs here?

John Pollock: Right. The reason that we talk about cost is because we’re not afraid of that question. It’s a question that we’ve thought a lot about and there’s a lot of data to support the position that we have. There’s no question that providing counsel requires a state or a city to spend money upfront. But, what we know now from many, many studies is that the cost of providing that lawyer is far less than the consequences that are visited on taxpayers when that person does not have a lawyer. And eviction is actually a pretty good example of that.

If you have a person who is evicted and perhaps shouldn’t have been, let’s say they have valid defenses, but they don’t know how to assert them, that person will be evicted. And then, there are many consequences that flow from that. Like we discussed earlier, supposing that they become homeless, taxed shelters are generally tax funded, police are certainly funded by taxpayer funds, so are prisons, so are courts. All of these things that will flow from their homelessness, those are all expenses, and very substantial ones, much more than providing a lawyer for an eviction [crosstalk 00:15:37].

Sam Glover: Actually, I just learned about an interesting consequence that I hadn’t even thought about before, which was, we had an apartment building in the cities here that got completely flipped from affordable housing to expensive housing, and so everybody had to move and it was hundreds of people. The school stood to lose a ton of money for students, because a couple hundred students were going to be moving out of the school district. For that community, it was a loss of a ton of money to support the school that had just made a bunch of renovations. It’s even non intuitive things where the add ons are pretty significant.

John Pollock: That’s exactly right. Health is another example where people may not realize all the health consequences that can flow from some negative civil consequences. For instance, is a person loses their job, they may lose their insurance. If they have chronic conditions, that may require them to rely on emergency rooms instead of their health care policy, and that has a very specific tax consequence for all of us. I think we’re getting better at understanding and measuring those things. You referenced New York City earlier.

Well, one of the reasons I think that the City Council and the Mayor decided they needed to go this route is that, there was an independent study done to say, “Well, if we did provide counsel to everyone in New York City, what would it cost and what would it save?” And that independent study found that, after you spent the money and looked at all the savings, the city would net, net, $320 million in savings. That’s an incredible, incredible savings caused by the fact that the city spends about a billion dollars in shelter every year, and much of those shelter stays are avoidable if we could just stop some of these evictions.

Sam Glover: We’re talking about evictions, which is obviously close to my heart. But, let’s talk about another one, which is a little bit close to my heart, which is … Why do people … Let’s say, somebody gets a traffic ticket. They owe the money. Why should they be entitled to counsel to defend the contempt hearing because they’re not paying?

John Pollock: Well, I think that the question that a court has to decide is when …

Sam Glover: That is a trick question, by the way, because I used to sue debt collectors.

John Pollock: It’s a trick question I appreciate, because it goes right to our main message, which is, when a court has a person who hasn’t paid a traffic offense, the reason that they are permitted to put someone in jail is because if they can actually demonstrate, if they can actually believe that, that person has the money and is just choosing not to pay it, they can put them in prison because at that point, they’re trying to coerce them. Trying to convince them. Look, I’ll let you out of jail if you just pay this money. But, all of that is predicated on the judge having correctly decided that, that person has the money. In some cases, they may be deciding that, that person could be working and isn’t, and that conclusion may be completely wrong. Or, they may be …

Sam Glover: That definitely raises the spectrum of judges making interesting sort of life coaching decisions about what people should be doing with their lives.

John Pollock: There is no question that there are many judgements made in the courtroom that the court may even look at their clothes, or their phone, or other things, and determine based on that, that they have money that they’re hiding or choosing not to disclose. Those judgements may be completely wrong, and if they are wrong, that person will literally have no way to get out of prison, because the only way they can get out is to pay the money that the court thinks they have. If they don’t have it, they will never get out prison.

Sam Glover: That makes a lot of sense. Let’s say, I’m in a city, and I’m concerned about this, or I’m alive and I’m concerned about this, how do I even start thinking about looking for people who are advocating this in my jurisdiction and supporting them? How would I go about starting to try and support this and get the City Council or the State Legislators to start thinking about it?

John Pollock: That’s a great question. I think the answer depends on who you are, whether you’re an attorney, or a private citizen, or member of the court.

Sam Glover: Probably attorneys who are listening to the podcast, so yeah.

John Pollock: One place I would first direct you to is our website, which is civilrighttocounsel.org, has a wealth of information on what’s going on around the country. We have an interactive map that allows you to see, first what the status of right to counsel is in every subject area for every state, but it also has a map that allows you to see what’s happening in every state. Any state that’s lit up with a color basically indicates there’s something going on there. I think your listeners would be really surprised to see how many states are lit up. There’s just a ton going on.

The first thing, I think, is to go there and see what’s happening in your state. See who might be involved in it, and then see if there’s a way to get involved in it that way. Certainly, we invite attorneys that work for organization to work with us, to think strategically about how to advance this issue. It has to be strategic. This is a very careful, incremental movement. We often liken ourselves, to some degree, to the equal marriage movement. It was done very carefully, very slowly, very strategically, state by state, until they had built a national consensus. We are very much taking the same approach.

Sam Glover: It’s the kind of thing where you should probably reach out to the coalition and find resources and then mobilize, it sounds like.

John Pollock: That’s right. In your state, the Access to Justice Commission of many of the states have one, are very involved in this issue. State Bar Associations often have a Civil Right to Counsel subcommittee. If they don’t have one, they should create one to start thinking. How can we further this issue in our state? How can we provide more access to justice through the provision of counsel as a matter of right? I think one thing that I just have to emphasize is that, as a matter of right is so important here, because where something is not provided as a matter of right, there is no requirement that a city or state fund it. It can simply be … The funding can [inaudible 00:21:28]. We all know that Gideon, on the criminal side, is underfunded, but if there were no right to counsel that had been established by the Supreme Court, there would be no way for a public defender association to sue over inadequate funding. The answer would be, too bad, because we just choose not to fund it.

That’s the problem we have on the civil side. There are some rights to counsel that exist in every state on the civil side, and that also is a surprise to people. But, where there isn’t one, and there are many areas where there isn’t, we have no way to ensure access to justice because it’s entirely up to the funder to decide whether they feel like funding that particular area.

Sam Glover: John, I’m curious what role you think the right to counsel plays in the larger story of increasing access to justice, especially since so much of the work done around access to justice, or at least maybe a prominent part, or a part that’s getting a lot of attention, seems to revolve around technological solutions and end arounds the justice system and new technology. I guess I’m curious. How should we think about this in that larger picture?

John Pollock: There are many people that refer to this as a continuum, and that there are many different solutions along the continuum, and I personally agree with that. I think that for one thing, the right to counsel, even if we are successful beyond our wildest dreams, will only reach those people who are considered “indigent.” Anyone who’s above that indigency level is not going to be helped by our movement, and there are lots and lots of people in this country of moderate income who cannot afford private counsel and still need legal assistance. We have to have solutions in place. Some of those things you mentioned, like technology, self help centers, hotlines, downloadable forms, those are kinds of solutions that can reach everyone, not necessarily just those who are income eligible. I think we have to consider all of those things for that reason alone.

But, the other aspect of it is that, as I mentioned before, right to counsel is incremental. It’s a process that we’re taking very slowly, very carefully,
and we have to think about: What do we do for everyone, for the millions of Americans in the interim, who are not receiving a right to counsel? We have to provide solutions for them. What we have to be careful of is that, with these solutions, if the intent is to put them in, in a more permanent fashion, we have to ensure not that they’re just providing service, but that they’re actually providing justice. We have to measure them. We have to analyze them, and look at the results and say, “Is this actually meaningfully changing what people are receiving?” It’s not enough to just say …

Sam Glover: You’re almost saying it changes the ball field, but it doesn’t necessarily ensure a win.

John Pollock: It might. It might do either, or neither. I think we have to know, for instance, if we create downloadable forms and technology, we have to not simply know 50,000 people downloaded this form.
We have to then know: Did it actually change anything in the results of what happened? Did it change the default rate? Did it change how often people prevailed in their cases? These are things that we need to know.

Sam Glover: Well, I suppose I’ve fallen into the trap that I often accuse other of, which is conflating access to justice with providing legal services to the poorest of the poor, which is really a foundational question, but it’s really just one piece of the access to justice puzzle. You can’t solve that by just throwing lawyers at it entirely. You have to figure out creative solutions at all levels, not just for the poorest of the poor.

John Pollock: That’s right. That is the reason why we partner and work so closely with all of the different advocacies that are working on this on all of those different fronts you mentioned.

Sam Glover: When you talk about where the cutoff is though, I know that the cutoff for a public defender in many states is substantially lower than many people might expect it to be, I think. What’s the recommended guideline that you advocate for, if you can? For income guideline, I mean.

John Pollock: It’s a great question, because indigent, the definition of indigent varies so much from state to state. Legal services programs use a certain definition. The courts use a certain definition. The courts actually, quite often, have some amount of flexibility determining what’s indigent, and that can lead to some problems. The more discretion you give judges, the more problematic the implementation can be. I don’t know that I could give you a specific definition, but I’m intrigued by something, which was one of the right to counsel bills that we saw was outlining who would be eligible, and it listed people at, I think, 200% or below poverty, or those who are receiving public assistance. It had a third category that said something along the lines of, “Those who cannot afford the necessities of life if they had to pay for this lawyer.” Essentially, or something …

Sam Glover: Sort of allows for kind of a catch all.

John Pollock: Exactly. It was trying to get at something that might not have been captured by the rest of the factors, like for instance, where you have someone, maybe, who has more income, but all of that income is going to medical expenses. And maybe that’s not being captured in the other tests that are being used, so it was a more sensitive test, and I think that’s great. I don’t know how that would work in practice, but I think that we do need to think creatively about how we define that, because many people are not below it and need to be.

To some degree, also, the limits are just set because we don’t have enough resources. Again, without the right, the bar for poverty is so very low because they are already turning away half the people that come in anyway, even with the bar that low.

Sam Glover: I suppose it’s probably worth … You threw out there 200% of the federal poverty guidelines. I suppose for those who aren’t close to the public interest world, or public defender world, or whatever it’s worth, stopping to reflect on why 200% of the federal poverty guideline doesn’t mean that you’re wealthy because you’re making twice as much as a poor person. In 2016, the federal poverty guidelines for a household of two was $16,020 a year, which is … When 100% of the poverty guideline is that level, which is crushingly poor, and so 200% of that is about 32 grand a year, which still is barely enough for most people to get by. It’s not enough where you can afford the expense of, all of a sudden, you need to hire a lawyer for $2,000. A lot of legal aid organizations go as high as 300% of poverty guidelines to provide at least some services at that level, because we’re still talking about people who are living paycheck to paycheck at best. And so, you should not interpret 200% of federal poverty guidelines as somehow justifying and we don’t need to help them.

John Pollock: That’s right. In some places, it’s less than 200%. It’s 125% or 150% of the poverty. Again, it’s important to stress that, even at those levels, when legal aid programs, for instance, use those levels, they still have to turn away massive numbers of people because they don’t have the resources to help everyone that comes in that’s eligible. And that, we trace back to a large degree to the fact that, again, without a right, without a right to these services, there is no requirement that funding be provided. In fact, we’re looking right now at the federal government potentially slashing the Legal Services Corporation, which funds legal aid across the country.

Sam Glover: Yeah. Right.

John Pollock: The Trump administration has proposed zeroing it out completely and one of the House Committees has proposed reducing it by something like 25% or 30%. The programs are already turning away half their people, and what a cut like that would do is almost hard to imagine.

Sam Glover: The executive director of LSC spoke at the Stanford CodeX Conference this year, and he gets up on stage and says, “Will you all stop looking at me like I’m a dead man walking?”

John Pollock: Yeah. I have some comfort for your listeners on that front, which is, I think that a lot of work has been done over the last decade to build strong institutional support for legal services in Congress. I think even in both parties, so I think that there are going to be serious defenders of the legal aid program in Congress that are going to fight both cuts and try to keep at least level funding with what’s being provided. But again, it just comes back to that fact that this is Congress’s whim.

Sam Glover: Right.

John Pollock: They can choose to do it, or they can choose not to do it. they have no obligation to provide legal to the court. There’s nothing saying that anyone has a right to these services. At the state level, where states have passed statutes or state courts have said, “There is a right to counsel when an adult is subjected to a guardianship or, where a parent is losing their rights, or where paternity is being established,” these are just some examples of where states have done this. Where there is a right, they do have funding, and they do, in fact, provide funding. And those people do get lawyers, so we know it can happen, but it has to be a right.

Sam Glover: I suppose for a little bit more context, there’s this 80% that always gets thrown around when we talk about legal aid, and it often gets used in context where it doesn’t belong, but when we’re talking about legal aid, I think it’s LSC that has done this study a few times now, and basically it keeps coming out around that 80% number, which is 80% of the people who qualify for legal aid and apply for it get turned away because of lack of resources to serve them. And so, when we talk about the civil right to counsel, we’re talking about trying to make that 20% number who actually get the help they need a little bit bigger.

John Pollock: I think, actually, if I remember correctly …

Sam Glover: Or, a lot bigger.

John Pollock: I think it’s 80% of the legal needs of the country go unmet, and of the people who actually seek legal assistance …

Sam Glover: Well, no. That’s how it often gets said, but that is not how the actual thing is. People who qualify and apply is what it actually refers to. Yeah. It often gets thrown around out of context, which is kind of one of my pet peeves, but yeah.

John Pollock: Well, it certainly … It’s at obviously a staggering number, not matter how you slice it.

Sam Glover: Yeah. Totally.

John Pollock: It’s an epidemic, one that we should be talking about in the same way that we’re talking about the opioid crisis. This is something that is staggeringly huge. In fact, one of the things I’ll say when I talk about public education is that throughout the whole health care debate and really central to the Affordable Care Act, was the idea of preventative medicine. It was the idea that, we’re going to require health insurance companies to give preventative services because we understand that it’s much better to provide those services than to treat the problems when they go untended for years, which is what was happening before. People weren’t paying for routine or preventative care because they couldn’t afford the services, and so then they would just wait until things became severe.

We basically have the same attitude for legal services. We have to treat these problems when they’re treatable, which is when the problem first arises, not after the person has been evicted, or a guardianship has been imposed, or they’ve been in prison. And then, all of the consequences then have fallen out, and then we’re looking at all of these, again, taxpayer consequences that we’re paying for. And we could’ve avoided all of those if we had just given the person counsel when their legal problem first arose, so we really do consider this a preventative medicine kind of approach.

Sam Glover: We should start talking about preventative legal services then.

John Pollock: I think so. I think that’s right.

Sam Glover: John, is there anything else we should talk about when it comes to the civil right to counsel, or should we leave it there?

John Pollock: I would just say that the thing that gives me the most hope is, just to throw a couple numbers out there, in the last two years, each of the last two years, over 60 bills have been filed at the state level, and some at the federal level, to extend the right to counsel, and I think what that shows is, the states are seeing this as an issue that they need to address. This is not a luxury. This is not an issue that we just deal with when everything else has been dealt with and the economy for the states are perfect. The states are saying, and advocates are saying, and the bars are saying, and the communities are saying, “We need to make this happen now. We cannot wait any longer. This is access to justice and it’s a fundamental need and it’s good sensible policy that we need to do right now.”

Sam Glover: John, on that optimistic note, I think we should end. Thank you so much for being with us today.

John Pollock: It was a pleasure. Thank you so much.

Aaron Street: Make sure to catch next week’s episode of The Lawyerist Podcast. If you’d like more information about today’s show, please visit lawyerist.com/podcast or legaltalknetwork.com. You can subscribe via iTunes or anywhere podcasts are found. Both Lawyerist and The Legal Talk Network can be found on Twitter, Facebook and LinkedIn, and you can download the free app from Legal Talk Network and Google Play or iTunes.

Sam Glover: The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network. Nothing said during this podcast is legal advice.

2 Comments

  1. Ben Sessions says:

    Perhaps an incremental approach to this problem would be the way to effect some change. Registry cases/actions (child abuse and sex offenders) are becoming increasingly prevalent throughout the U.S. However, they are considered quasi-criminal hearings, but the right to counsel within these hearings has not been thoroughly litigated.

  2. Ellen says:

    I answered the survey, and had to note I do no pro bono, but I’m a public defender. Don’t want that to skew your responses.

Leave a Reply