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On Aug. 8, the American Bar Association will vote on a bold resolution calling for the appointment of lawyers to provide pro bono legal services to low-income individuals when basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody. It’s called a “Civil Gideon” right-after the 1963 Supreme Court case Gideon v. Wainwright that established the constitutional right to appointed counsel in state court criminal cases. The federal Constitution dictated the outcome of Gideon v. Wainwright. In its decision, the Supreme Court looked to the Sixth Amendment, which explicitly provides a right to counsel in criminal cases. The court determined that the right was hollow unless counsel was made available by the state, ensuring that all criminal defendants were given an equal right to representation, whatever their financial means. There is no similar federal constitutional provision addressing legal counsel in civil cases. Likewise, no state has extended the right to counsel this far, though some states provide a right to appointed counsel in family matters such as termination of parental rights. However, developments in international law in the four decades since Gideon have created another basis for expanding the right to counsel in civil cases. In 1966, three years after Gideon, the international community concluded work on two new treaties, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Whereas the ICESCR recognizes rights to “adequate food, clothing and housing,” among others, the ICCPR focuses on rights such as freedom from discrimination, freedom of association and access to the courts. The United States participated in drafting both of these treaties. Yet, though their subject matter is closely related, the United States was among the nations that insisted they be kept separate so that one could be ratified without the other. It then proceeded to do just that, ultimately ratifying the ICCPR in 1992. As a result, the United States is now obligated to bring its laws and practices into line with the provisions of the ICCPR and to make periodic reports to the U.N. Human Rights Committee, which monitors treaty compliance. Indeed, the U.S. government filed a compliance report with the committee earlier this year. The ICCPR does not directly provide a right to counsel. However, Article 14 states that “[a]ll persons shall be equal before the courts,” and that everyone facing a lawsuit determining “his rights and obligations . . . shall be entitled to a fair and public hearing.” Clearly, the parties will not be “equal” and a hearing may not be “fair” if only one side is represented by counsel. While the U.S. judicial system is in many senses a model worldwide, with strong traditions of an independent judiciary and fair evidentiary procedures, that means little to those who lack the means or wherewithal to negotiate it. Federal and state legal aid funding, slashed in recent years, falls far short of meeting the need for counsel. Studies indicate that throughout the country, only a small fraction of civil legal needs of low-income people are met. In the face of such a representation gap, the European Court of Human Rights extended the right to appointed counsel to “cases with important interests at stake and where an unrepresented litigant cannot represent him or herself effectively.” Counsel can protect basic needs Even the legal community agrees that it is unnecessary to provide counsel in every case. Anyone who watches Judge Judy knows that some cases concern trivial matters and can be handled without a lawyer. But, as the ABA’s resolution states, cases involving shelter, sustenance, safety and child custody warrant special attention to ensure that the process provided by our judicial system is truly fair. Exactly 40 years after the international community completed work on the ICCPR, the ABA resolution finally recognizes that the United States can fully realize civil and political rights only by acknowledging the broad range of human needs that these rights protect. The ICCPR supports, even dictates, this approach. The integrity of our system is undermined, and our international standing compromised, if low-income people facing hunger, homelessness, danger or loss of their children are denied effective access to our judicial system for want of a lawyer. Martha F. Davis is a professor of law at Northeastern University School of Law, where she serves as faculty director of the Program on Human Rights and the Global Economy.

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