In the United States, people of limited means suffer a tremendous unmet need for legal services in civil proceedings. Why does the United States fall so far behind in providing that service in comparison with other western democracies?

Background on the Right to Counsel

In 1963, the Supreme Court decided Gideon v. Wainwright, the landmark Sixth Amendment decision requiring that states provide legal counsel for indigent criminal defendants. No such right to counsel, however, has been established in civil proceedings despite the fact that for many low-income individuals, the outcome of certain civil legal proceedings can have an impact as significant, lasting, and life-altering as some criminal cases.

In the absence of a federally recognized right to counsel in civil matters, state and local authorities have been primarily responsible for protecting the rights of low-income individuals in civil proceedings where they see fit.  As a result, the provision of free legal services differs greatly from state to state, and even within a given state.

A 2017 study demonstrated that 71% of low-income households experienced at least one civil legal problem that year, including health care, housing conditions, veterans’ benefits, disability access, and domestic violence matters. In 86% of those civil legal problems, low-income Americans “received inadequate or no legal help.” In addition, in over three-fourths of all civil trials in the United States, at least one litigant does not have legal representation.

International Perspective

The United States falls far behind other countries in providing civil legal representation to low-income individuals. The World Justice Project’s 2019 Rule of Law Index ranks the U.S. as tied for 99th out of 126 countries on “accessibility and affordability of civil justice,” which measures “the accessibility and affordability of civil courts, including whether people are aware of available remedies, can access and afford legal advice and representation, and can access the court system without incurring unreasonable fees, encountering unreasonable procedural hurdles, or experiencing physical or linguistic barriers.” Even more concerning, the U.S. has dropped nearly 30 spots in the ranking from 2015 to 2019.

In contrast to the U.S., the 49 Council of Europe (COE) member countries, as well as nine other countries, provide some sort of federal right to counsel for low-income individuals. In France, for example, there is a right to counsel in all civil and administrative cases. Lawyers provide assistance with litigation, mediation, transactions, and general legal advice on an income-based sliding scale. Representation of minors, those in immigration proceedings, and individuals involved in veteran pension matters are provided representation regardless of financial need. While some countries are more restrictive in their scope of and qualification for representation, most COE members provide “extensive protection” for immigrants.  In the COE member countries, as well as Canada, Australia, and New Zealand, public funding for civil representation (calculated in any manner; by budget amount per indigent person, per capita, or as a percentage of gross national product) far exceeds spending in the United States.

Where Do We Go From Here?

In response to the statistics above, and in the absence of any established constitutional right to counsel in civil cases, the federal government would better protect fundamental rights of countless people by increasing its financial commitment to legal services for the poor. Unfortunately, when adjusted for inflation, federal funding for the Legal Services Corp. (LSC), which provides financial support to 132 legal aid programs around the country, has declined by 56.8% since 1980. Now, a proposed budget cut is threatening to reduce the federal government’s support even further.  In March, the administration’s proposed 2020 budget recommended completely eliminating funding for LSC.

To the extent we don’t address the growing “justice gap,” we are jeopardizing more than just the right outcome in individual legal matters. As stated by Justice Lewis F. Powell, Jr., “Equal justice under law is not merely a caption on the facade of the Supreme Court building; it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists . . . it is fundamental that justice should be the same, in substance and availability, without regard to economic status.”

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Photo of William C. Silverman William C. Silverman

William C. Silverman is a partner responsible for leading Proskauer’s global pro bono efforts, which provide assistance to individual clients and nonprofit organizations in litigation as well as transactional matters. He focuses on identifying and securing pro bono opportunities and partnerships for Proskauer…

William C. Silverman is a partner responsible for leading Proskauer’s global pro bono efforts, which provide assistance to individual clients and nonprofit organizations in litigation as well as transactional matters. He focuses on identifying and securing pro bono opportunities and partnerships for Proskauer lawyers and ensuring widespread participation in these projects.

Bill has robust private and public sector experience and a strong criminal and civil background. He has worked extensively on government investigations and white collar criminal matters, as well as complex civil litigation in federal and state courts. He also served as an assistant U.S. attorney in the Southern District of New York, where he led criminal investigations, conducted trials and handled Second Circuit appeals.

Throughout his career, Bill has dedicated himself to the promotion of equal access to justice through pro bono service, particularly in the area of family court, anti-trafficking, and immigration.

Bill spearheaded a partnership among several law firms, corporations and the New York City Family Court to provide free legal advice to pro se litigants. The New York City Family Court Volunteer Attorney Program now has more than 400 volunteer attorneys from 40 major firms and corporations. Bill also helped build a coalition of organizations in a successful effort to secure additional Family Court judges in New York. He is now part of an effort spearheaded by Chief Judge Janet DiFiore to simplify the New York Court System from 11 trial courts to three.

Bill serves as counsel to the New York State Anti-Trafficking Coalition. In that capacity he has been a strong advocate for changes in the law and public policy to protect victims of human trafficking and bring perpetrators to justice. He also represents individual clients in this area, including a successful federal lawsuit brought on behalf of a trafficking victim against her traffickers. For his work, he was named by domestic violence nonprofit Sanctuary For Families as one of “New York’s New Abolitionists.”

Bill has spoken at numerous conferences and events, including New York Chief Judge Jonathan Lippman’s Hearings on Civil Legal Services and the American Bar Association’s Equal Justice Conference. In 2014, he attended a meeting at the White House with Vice President Joe Biden and other policymakers on the need for access to legal services in immigration proceedings.

Bill has been recognized for his public service with the Abely Pro Bono Leadership Award from Sanctuary For Families and Columbia Law School (2019); the Special Leadership Award for All-Around Excellence in Corporate Social Responsibility & the Law from City & State Reports (2015); the Commitment to Justice Award for Outstanding Partner from inMotion (2008); and the Matthew G. Leonard Award for Outstanding Pro Bono Achievement from MFY Legal Services (2007).

Outside of his work at the firm, Bill serves on various committees and non-profit boards. Bill is currently chairman of the Fund for Modern Courts, a non-partisan citizen organization devoted to improving New York State courts, and is formerly chairman of Legal Information For Families Today (LIFT), an organization devoted to unrepresented litigants in Family Court.