The Right of Access, the Right to Counsel

Lane Womack[1]

In his opening remarks, moderator Scott Llewellyn of Morrison Foerster challenged the The Right of Access, Right to Counsel panelists to focus on addressing the meaningful access to justice, what methods can be used to ensure that fair processes are in place, and how to protect this access. The subsequent comments by three legal scholars directed an intriguing and informative foray into the right of access and the right to counsel, characterizing the historical underpinnings of the rights, and suggesting a future course of action to improve the system.

Professor Laura Abel, Deputy Director of the Brennan Center for Justice at New York University School of Law, approached the issue of the right to access by addressing “what is meaningful access?” She first highlighted the importance of the June, 2011, Supreme Court decision in Turner v. Rogers,[2] which established a structure that requires courts to provide the least expensive method in its provision of counsel, allows the court to use of a spectrum of need in asking litigants about the extent of legal assistance needed, and allows the extent of access provided to the litigant to vary according to the individual’s interest at stake.[3] Professor Abel suggested that the recent holding might establish the right to counsel. She also noted that Turner seemingly returns to the standard established in Bounds v. Smith,[4] which held that law libraries would provide meaningful access to the courts for prisoners, in lieu of representation.

Next, Professor Abel proposed the challenge: how do we  enlist courts to view an issue as an empirically factual one, rather than the current system that allows judges to rely on their own judgment or instincts? She pointed out that instincts can often be wrong in a pro se case, and that this factual-based inquiry may already exist in due process cases, citing Tennessee v. Lane,[5] but that it tends to be wrong when issues such as those presented in Turner are present. Professor Abel defined why the courts are so reluctant to take an empirical view of an issue, citing three concurring factors. First, courts are reluctant to scrutinize social evidence in access cases. Second, judges like to think that they are experts in what happens in courts. And finally, not all plaintiffs are able to provide expert testimony, especially without a large body of supporting data.

Professor Abel proposed three distinct solutions to this challenge of judicial reliance on instincts (which limits access to justice) versus reliance on empirical facts (which would better enable access to justice). First, she suggested that courts could hold hearings similar to competency hearings where expert witnesses would testify about which tasks a pro se litigant could and could not do. Acknowledging expense as a weighty downside to this approach, Professor Abel’s second approach sought to balance an increase in cost, suggesting that the court could do a categorical analysis, as seen when the court relied on the likelihood of computer error in Memphis Light, Gas & Water Division v. Craft.[6] Finally, Professor Abel suggested that the court could appoint a special master to make determinations regarding the education and typical characteristics of such a client, as well as their likely ability to perform necessary tasks.

The second panelist, Professor Michael Millemann of the University of Maryland School of Law, approached The Right of Access, the Right to Counsel as a an inquiry into how to integrate the civil Gideon movement with the continuum of legal services movement in a complementary fashion that supports rather than undermines the purposes of each. He noted that these movements have done a lot of good by raising the consciousness of legislatures and policymakers for the right to counsel, and that this track record is better in state courts, when using state constitutions.

Professor Millemann’s discourse began on a primitive, pragmatic level with a discussion of his personal history: from his representation of prisoners as a member of a legal clinic while in law school to his guidance of law students representing a death sentence plaintiff as a faculty member. He continued this analysis with examples of how the federal courts have given constitutional sanction to a continuum of services: Matthews v. Eldridge,[7] which provided a balancing test of government interest/disinterest; Bounds,[8] which dictated other ways of providing this constitutional right, including the services of paralegals, part-time consulting lawyers, or full-time staff attorneys; Vitek v. Jones,[9]  which blessed something less than a lawyer as appropriate to provide necessary assistance;  Murray v. Giarratano,[10] which  deemed persons learned in the law helpful for prisoners, but allowed the assistance of less than full service lawyers for those prisoners unable to secure counsel; and finally Turner,[11] which held that in some circumstances a counsel substitute could provide the required advice. Professor Millemann concluded that most of these cases “cry out” the need for a lawyer, but the Supreme Court has condoned something less than a full-service lawyer.

Furthermore, Professor Millemann found the lack of recognition by the Supreme Court of what makes the government legitimate, that it makes and implements laws, very perplexing.  He pointed out that the state has delegated such decisions to an adversary system, but cannot delegate them entirely without losing its legitimacy. However, when a state delegates such authority, it cannot ensure that justice is done. In concluding, Professor Millemann declared that through a look at history, we can learn why it is essential to government legitimacy to provide the legal services necessary to fairly implement the law. He stated that the backbone of the legal aid system of England was the understanding of the early Kings of England and their authorization of courts to appoint lawyers to represent the poor.

The final panelist, Richard Zorza, of Zorza Associates, introduced a practical solution to the Right to Counsel: a triage system. Mr. Zorza supported this solution because it would identify what is necessary and decide who needs and who gets what in terms of services for access. He highlighted his view that a right to determination, whether categorical or individualized, was mandated by Turner,[12] and that this decision-making process can be done by different players via different methods.

Mr. Zorza progressed through a discussion of triage and its implications. He first addressed why triage would work, then explained the current allocation system, and finally detailed the three different approaches to building a triage system. He explained that triage is happening anyway—in a hidden manner—in our justice system; it increases access, reduces cost, and integrates with court innovation processes.

Mr. Zorza said that the current allocation system is required by regulations that are formally driven by categorization. He explained that these categories include arbitrary and counter-intuitive throttling techniques, which, when coupled with the extensive hidden discretion of the courts, lead to a complex relationship of services to needs and outcomes. Mr. Zorza further said that some courts have written protocols as to substantive areas with referral routes and that the court environment has a major impact on the litigant services. Finally, he pointed out that 60% of states have a self-help center, that have some sort of discretionary system in place. Mr. Zorza also listed the factors that determine service: who the litigants are, the type of case, other case factors, the law that governs the proceedings, and the judicial environment. He indicated the most important factors are the identity of the opponent and the type of case

With such evidence of a problem and a need for a solution, Mr. Zorza outlined three possible approaches to a triage system. First, he discussed a system based on categories, as currently exists. He indicated the downsides, including the lack of validated research and the clear existence of lingering issues. A second possible approach highlighted by Mr. Zorza mirrors that of self-help or legal aid centers and is based on discretion. Under this system, an individual would come to court and receive unbounded consultation as to what level of services the person needs in order to obtain access. If they are found to be in need of a lawyer, they will be given one. Following this consultation, a screener would compile a detailed report on particular litigant, follow outcome data to see if it works, then can build a cost-model. Understanding the increased cost of such a system, Mr. Zorza indicated that a way to finance a discretion-approach could be to increase court filing fees for all. The final approach to triage discussed was one of scoring/branching. Under this strategy, a litigant would receive points for each of many factors, resulting in a fair but illegitimate system. Mr. Zorza concluded with a look to the future and a declaration. He declared to build an effective triage system, factor-based research is necessary, and that this might result in access-friendly, non-attorney alternatives that are financially incentivized and provide constitutionally mandated access.

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[1] J.D. Candidate, 2013, University of Denver Sturm College of Law.

[2]131 S. Ct. 2507 (2011).

[3] Id.

[4] 430 U.S. 817 (1977).

[5] 541 U.S. 509 (2004).

[6] 436 U.S. 1 (1978).

[7] 424 U.S. 319 (1976).

[8] Bounds, 430 U.S. at 817.

[9] 445 U.S. 480 (1980).

[10] 492 U.S. 1 (1989).

[11] Turner, 131 S. Ct. at 2507.

[12] Id.