Proskauer recently submitted an amicus brief on behalf of The Buckeye Institute, an independent research and educational institution, in connection with the U.S. Supreme Court case of In Re Grand Jury. On appeal from the U.S. Court of Appeals for the Ninth Circuit, this case represents the first time the Court has examined the scope of the attorney-client privilege since it decided United States v. Upjohn in 1981.
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.