Oct 5 2011

The US Supreme Court and the EU Authorities struggle with the right to a lawyer. They seem to move in different directions. What is behind this? It might be money, alternative ways to increase access to justice and even a fear that lawyers bring more formality and delay.

When you are detained, or when you have a big conflict with another person, having a lawyer is a great asset. The lawyer can be your trusted adviser in these moments of crisis. He or she knows how the rules and the judges work. However, a lawyer needs to be paid. It sounds great to give each person the right to use a lawyer. But it can be a hollow gesture. For most people in the world a professional with an hourly fee, who will spend 10 to 50 hours to solve a problem satisfactorily, is simply unaffordable. Only a few countries have managed to secure substantial funds for legal aid, so that every person detained or being in other serious trouble will get it. The rest of the world relies on a patchwork of charity, voluntary help by lawyers, smaller government funds and private insurance schemes. For some people this works, for most people it does not.

On June 20, The US Supreme Court showed one way to cope with the dilemma. In Turner v. Rogers, the issue was whether a father could be detained for not paying child support to his ex-wife and children. In the US, 50.000 men are detained on any moment because they show contempt of court by not living up to their duty to pay. In their defense against this, do they have the right to a lawyer? Sure, the Court said that a state must provide safeguards here. But not necessarily through a right to a lawyer. The Supreme Court justices warned against the lawyer making the procedure more formal and less speedy. If a lawyer would always have to be present as a requirement of due process, this can also make the procedure less fair, because the family needing child support would need a lawyer as well. arily entails to a right to counsel.

The European Commission moves in another direction in the area of criminal proceedings. On June 14, it proposed a directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest that explicitly gives the right to have a lawyer attend “any questioning or hearing” and “any evidence gathering” at which the accused is present and permitted. France, Belgium, Ireland, the UK and the Netherlands took the unusual step to criticize this proposal in a joint statement, made public on September 22. These countries are certainly not the EU-members with the worst track record on human rights. But they said they were worried that this extended right to a lawyer could delay and complicate criminal proceedings. Would the lawyer even have to be present when fingerprints are taken? They do not say so explicitly, but they may also fear that every accused person is advised to keep silent instead of being informed that he has the option of not answering questions. This would increase the costs of evidence gathering and make solving crimes much more difficult. The five countries also showed they are worried that this right would become a problem for legal aid budgets.

The best answer to such questions can probably be found by looking at concrete categories of cases and by considering alternatives for providing safeguards. The right of a lawyer to be present at interrogations by the police is also a safeguard against unacceptable interrogation methods. Videotaping is an alternative here.

As the US Supreme Court pointed out, a better procedure and more information for the parties may be a substitute safeguard in child support enforcement cases. The defendant could be notified that his “ability to pay” would be the critical issue. A form asking the right questions would also help, linked to an opportunity at the hearing to respond to statements and questions, as well as a duty of the court to rule on this issue explicitly. Assistance by a social worker who is aware of the basic rules of the particular procedure is another alternative.

There are different ways to provide a fair process. Simplifying procedures, making them easier to accomplish is one option. Providing better information is another one, as is monitoring of the procedure by recording it. Access to a helper, be it a lawyer or another qualified person, is an option. But each has its drawbacks and its costs.

An absolute and extended right to counsel is almost impossible to fund. So it is much better to be realistic, and to start securing the right to lawyers for those with the greatest need: the ones with the highest risk of severe sentences; the ones who are victimized badly; and the mentally disabled, who are least likely to organize help for themselves. Starting from the other end, access to justice can best be guaranteed by providing accessible procedures and adequate, standardized information. Improving access to justice wholesale is usually less expensive than doing it case by case. Lawyers, helpful judges, websites. All will be part of the answer.

Related challenges: How to Achieve a Scalable Model for Affordable Legal Services?

Related papers: Legal Aid, Accessible Courts or Legal Information? Three Access to Justice Strategies Compared