You are here

When the right to a lawyer applies only if you have money | Pine Tree Legal Assistance in Bangor Daily News

Wednesday, September 2, 2015

Many members of the public assume that low-income people can access legal help in civil cases in the same way that they can get a court-appointed lawyer in a criminal case. A column in today’s Bangor Daily News helps explain the difference.

Heather Denkmire

Contributed photo
By Heather Denkmire, Special to the BDN
I’m not rich myself, but I come from privilege. If I were to find myself in a situation in which legal assistance would be useful, I have options. I have friends who are attorneys and other friends who know attorneys who could help. I have family members who would help with legal fees, if it came to that. Part of privilege is having access to resources.

My landlord and his family are wonderful. We live in their multifamily home, and they are great neighbors. Even in this situation, though, I don’t want to be a pest. If I want something fixed, for example, I don’t want to be “the tenant who complains,” so I pause before I give him a call.

This is only a passing worry on my part because I have a solid and respectful relationship with our landlord. But what if I didn’t? If even I feel nervous about being a pest, what must it be like for someone with a real jerk or possibly a criminal for a landlord? What if there truly were unsafe conditions in our home that our landlord wouldn’t repair, and I knew he’d try to evict us if we kept complaining? What if I needed a lawyer to fix the situation?

Everyone has access to lawyers, right? It’s part of the Constitution, isn’t it? “You have the right to an attorney. If you cannot afford one—” So goes the Miranda warning. We’ve all heard it on episodes of “Law and Order,” yes?

It’s true the Sixth Amendment to the Constitution includes the guarantee of the right to an attorney if you have been arrested. However, this right to counsel is for criminal issues, not most civil cases. Issues related to housing, employment, individual or family safety and relationships, or consumer protections, just to name a few, are among those considered civil. You don’t have a constitutionally guaranteed right to an attorney under most civil circumstances.

For example, a woman is married to a man who assaults her. Protection orders in domestic violence cases are a part of the civil law system. The violent husband has told her he will get custody of their children. Custody issues are considered civil. She can’t afford a lawyer for the divorce or to fight the custody case.

If you can’t afford a lawyer for most civil matters, you’re pretty much out of luck, unless you find free legal aid. And the lack of civil legal aid can be devastating.

There are some civil cases in which people are guaranteed legal assistance regardless of their ability to pay. In Maine, there is a right to counsel in child welfare proceedings. Federal law provides the right to counsel in juvenile delinquency cases. Other states provide the right to an attorney in other civil areas. But there is no consistent and across-the-board right to an attorney when someone needs civil legal aid but can’t afford it.

Here in Maine, we know and love Pine Tree Legal Assistance. That organization has been providing high-quality, free, civil legal aid to low-income people since 1967. There are other organizations helping low-income people with their civil legal issues in Maine, too. Despite all their best efforts, though, meeting the demand for civil legal aid has been impossible.

In its February 2014 report, “The State of Access to Justice in Maine,” the Justice Action Group reported that for each person receiving civil legal aid four are turned away. In 1990, the Muskie Commission determined that Maine needed the equivalent of 282 full-time lawyers to meet the basic need for civil legal aid; in 2012, there were only over 46 full-time-equivalent civil legal aid lawyers in all of Maine.

How can we think it’s acceptable that legal assistance is only for people who can afford it? Clearly, it isn’t acceptable.

The deck is stacked against people living in poverty as it is. The consequences when they dare to fight injustices are serious, not simply inconvenient. Homes, jobs, health and families are at risk for people in poverty who need help with civil legal issues. Fairness in the justice system should not depend on how much money someone has.


 

Published on the Bangor Daily News