At its mid-year meeting in February, the American Bar Association adopted Resolution 114, an important right-to-counsel measure intended to ensure that counsel will be provided as a matter of right to low-income persons in all proceedings that may result in a loss of physical liberty. The resolution was adopted basically unopposed. The ABA addressed a perceived gap in its existing policy on the right to counsel in civil cases. In 2006, the ABA adopted Resolution 112A calling upon federal and state governments to provide counsel for low-income individuals at public expense when basic human needs are at stake. The resolution suggested five areas of need—shelter, sustenance, safety, health and child custody—but recommended that each jurisdiction determine the basic human needs requiring counsel.
At that time, proponents of Resolution 112A assumed that there was no need to include physical liberty on the list because the prevailing thought was that a right to counsel already existed when physical liberty (incarceration, civil commitment) was at stake following the U.S. Supreme Court’s decision in Lassiter v. Department of Social Services of Durham County, 425 U.S. 18 (1981). In that case, the court stated, “the preeminent generalization that emerges from the court’s precedents on an indigent’s right to appointed counsel is that such a right has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation.”
However, in Turner v. Rogers, 564 U.S. 431 (2011), the Supreme Court declined to find a right to counsel in civil contempt proceedings for nonsupport even when an individual faced incarceration. While the court found no automatic right to counsel, it did, among other things, clarify the obligation of trial court judges and courts towards unrepresented litigants, particularly those facing incarceration. The court suggested that it might find a categorical right to counsel for litigants in cases with governmental opponents, attorneys on the other side or unusually complex cases. As a result, the ABA has voiced support for the provision of counsel for an individual threatened with incarceration regardless of the nature of the proceeding.
Resolution 114 does three things: It urges that federal, state, local, and tribal governments provide legal counsel at public expense to low-income persons in all proceeding that may result in the loss of physical liberty, regardless of whether the proceeding is criminal or civil, or initiated or prosecuted by a government entity; courts should not accept an in-court waiver of the right to counsel where physical liberty is at stake, unless the individual has an opportunity to confer with a lawyer; and if an individual waives the right to counsel, the court should offer appointed counsel at each subsequent stage of the proceeding in which counsel is not present.
This resolution is critically important to the development of a right to counsel and access to justice for low-income individuals who face incarceration in civil proceedings. The resolution is a natural extension of the organized bar’s commitment to counsel when basic human needs are at stake and it is deserving of support by the Philadelphia Bar Association and the Pennsylvania Bar Association.
Albert S. Dandridge III is chair of Schnader Harrison Segal & Lewis’ securities practice group and he is the firm’s chief diversity officer. His legal work is concentrated in municipal and corporate finance matters, and he regularly counsels major public companies, broker-dealers and investment advisers on their securities reporting and financing requirements.