Ted Frank on civil Gideon

This week the ABA House of Delegates passed the following resolution for what has been referred to as a civil version of Gideon v. Wainright:

RESOLVED, That the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low-income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction.

The AEI’s Ted Frank gives an excellent rebuttal. Among other things, he argues that

we can expect that the flood of meritless criminal defense appeals will be duplicated in the civil context if legal access is costless to both the client and the attorney.

And Ted notes that the proposal will not help the poor:

[T]hey will trade higher rents and higher taxes for the right to legal services that often will not help them.. . . [P] arties with meritorious cases will find it harder to signal to overwhelmed judges that their cases are distinguishable from the vast majority of meritless cases with appointed counsel that the courts will see every day.

If we want to increase the poor’s access to civil justice, there’s a far better way:

We can end unjust laws against the "unauthorized practice of law" that reserve to a cartel basic legal work--like simple wills and uncontested divorces--that can be performed by trained paralegals. We can end wasteful requirements like a third year in law school, bar examinations, and continuing legal education requirements that do nothing to prepare future lawyers; we can similarly strip the ABA of its cartelizing function of "accrediting" law schools by insisting on expensive features that do nothing but increase barriers to entering the legal profession and pursuing legal education.[34]

As Ted cites in n. 34, that’s an argument I made in Lawyers as Lawmakers: A Theory of Lawyer Licensing, 69 MO. L. REV. 299 (2004) (SSRN draft).

The ABA resolution should be seen as what it is: a justification for rent-seeking by the organized bar. In the article cited above I defended lawyer licensing on the limited ground that it encourages lawyers to participate in lawmaking. But if this ABA resolution is an example of the lawmaking we’re going to get from the bar, I withdraw my argument.