By: Alexander Albert

The Sixth Amendment to the United States Constitution guarantees to criminal defendants a set of fundamental rights intended to promote the fairness of criminal prosecutions. Among these entitlements possessed by any defendant are the “right to a speedy and public trial, by an impartial jury”; the right “to be informed of the nature and cause of the accusation”; and the right “to have the Assistance of Counsel for his defense.” The United States Supreme Court’s 1963 decision in Gideon v. Wainwright clarified this final component, establishing the accused’s right to the effective assistance of counsel, paid for by the government, in any criminal prosecution at either the state or federal level. This right to a vigorous defense is a cornerstone of our nation’s adversarial (rather than inquisitorial, as was the European standard at the time) system of justice, and reflects an acknowledgment of the potentially enormous significance of a criminal prosecution for a defendant’s life and liberty. In light of all of this, it is perhaps surprising, then, that the Constitution offers no similar guarantee of government-appointed representation to either plaintiffs or defendants in civil matters, regardless of the scope or significance of the matter in question for the parties involved; though there are some narrow exceptions at the state and local levels, it is still the case that the law generally does not provide this right in the civil context.

In the 1971 case Boddie v. Connecticut, the Supreme Court considered the plight of Gladys Boddie, a resident of Connecticut who attempted to file for a divorce but was deprived of the hearing necessary to effectuate the divorce due to her inability to pay a mandatory, state-imposed filing fee. Although Gladys was a recipient of welfare, her requests to have the fee waived were also rejected. In its ruling, the Supreme Court determined that the imposition of this filing fee constituted an insurmountable financial barrier to the plaintiff’s basic “access to the courts” and thus an unconstitutional violation of due process. Notably, Justice John Harlan’s majority opinion included the declaration that “due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.” Though the Court’s ruling in this case certainly did not establish the right of an individual to be provided with government-appointed counsel in any civil matter, it did capture the essence of why such access to counsel is as important in the civil context as in the criminal one: civil cases – and the ability or inability of plaintiffs to bring them – often yield hugely important consequences, and effective representation in such cases often provides the only fair, legitimate opportunity to navigate our American legal system in pursuit of a just outcome.

This commitment to the importance of legal representation for all citizens, regardless of financial means and in matters both criminal and civil, is espoused not only in our United States Constitution and judicial precedent, but also at various points throughout the Holy Bible. Proverbs 21:15 states: “When justice is done, it brings joy to the righteous but terror to evildoers.” In a later clarification of that which constitutes righteous character, Proverbs 29:7 explains that “The righteous care about justice for the poor, but the wicked have no such concern.” These passages tie the concept of justice to righteousness, and establish the intrinsic holiness of justice (specifically for the poor), but what exactly is justice, and how ought one best pursue it? These questions are further addressed at other points in the text. Isaiah 1:17, for example, lays out the following guidance: “Learn to do right; seek justice. Defend the oppressed. Take up the cause of the fatherless; plead the case of the widow.” Additionally, Leviticus 19:15 instructs: “Do not pervert justice; do not show partiality to the poor or favoritism to the great, but judge your neighbor fairly.” Passages such as these elaborate on the concept of justice and emphasize that one of its core components is the protection of the interests of the poor and otherwise disadvantaged members of our society. Moreover, the parable of The Sheep and the Goats in the  Gospel of Matthew reinforces this concern – Jesus portrays service of the poor as equivalent to service to God when he explains: “Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.” Righteousness requires commitment to the pursuit of justice, and justice necessarily entails concern for and action on behalf of those among us who need it the most.

The performance of pro bono legal work is among the noblest callings in our modern society precisely because it is an action in furtherance of the values enshrined in both our United States Constitution and the hallowed Word of God. The Constitution and several instances of judicial precedent have made clear the importance of effective assistance of counsel in matters both criminal and civil; the primary obstacle to individuals benefiting from such assistance is a dearth of resources (personal financial resources or the government’s resources), and that is why the importance of pro bono legal services is paramount. Relatedly, the Bible teaches that pursuing justice for the poor and otherwise disadvantaged members of our society is not only morally righteous but also directly in the service of our Lord. Ultimately, it is the duty of all attorneys to ensure, as Justice Harlan wrote, that every citizen among us is granted a “meaningful opportunity to be heard,” regardless of financial means or the circumstances of the matter at hand.

About the Author

Alexander “Alex” Albert has been accepted to the University of Virginia Law beginning in the fall of 2019.

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