The BDN Opinion section operates independently and does not set newsroom policies or contribute to reporting or editing articles elsewhere in the newspaper or on bangordailynews.com.
Deirdre M. Smith is a professor at the University of Maine School of Law in Portland. These are her views and do not express those of the University of Maine System or the University of Maine School of Law. She is a member of the Scholars Strategy Network, which brings together scholars across the country to address public challenges and their policy implications. Members’ columns appear in the BDN every other week.
Every year thousands of Mainers face major legal problems on their own, without the help of a lawyer. While our indigent defense system for serious criminal matters has received recent attention, we should not overlook the other part of the legal system where Mainers do not always receive the help they need — our civil justice system.
The words are familiar from television crime shows: “You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” Those rights apply, however, only to those arrested for a crime. In most civil (meaning noncriminal) legal cases, you do not have a right to counsel. But the stakes can be just as high in such cases as in criminal ones: access to health care, custody of children, protection from domestic abuse or elder exploitation, detention as an immigrant, benefits as a veteran, remaining in your home.
In civil cases, too, you do much better if you have a lawyer. As noted in “Civil Justice for All,” a report published in 2020 by the American Academy of Arts and Sciences, lawyers are specially trained to help people understand their legal options and resolve disputes favorably. With this assistance, clients can often “achieve positive results without spending unnecessary time, money, and effort in court proceedings.”
Mainers who cannot afford a lawyer in a civil case may seek help through one of the state’s nonprofit legal aid programs or the legal aid clinic at the University of Maine School of Law, where I work. While these programs serve more than 10,000 Mainers every year and help thousands more through outreach and education, limited funding forces them to turn away many more. This includes Mainers who may find it especially hard to navigate the complex rules and procedures involved in their civil cases: older residents; those with limited English proficiency or a disability; or those living in rural areas or lacking adequate access to technology. People who must represent themselves in civil cases are severely disadvantaged in a system designed for people represented by lawyers. As summed up in a recent editorial in the Washington Post, our country’s failure to guarantee a right to counsel in serious civil cases is a “profound injustice.”
According to the National Justice Index, created by the National Center for Access to Justice, to ensure the availability of legal help when needed, a state must provide at least one legal aid attorney for every 1,000 people with low incomes. Maine’s current level of legal aid funding results in less than one attorney for 5,500 such persons, far below that standard. This serious gap in the state’s guarantee of equal justice for all has widened during the covid-19 pandemic, when funding for Maine’s programs has decreased even as the need for legal aid has increased.
Maine can begin to close its “access to justice gap” through two key strategies. One is by expanding the right to counsel in a broader category of legal matters so that all parties in a civil case can, at the very least, have professional help understanding the legal options available to them. Some bills pending in the Maine Legislature would provide modest improvements, such as LD 480, “An Act To Establish a Presumption of Entitlement to Counsel for a Person Who Is the Subject of an Adult Guardianship, Conservatorship or Other Protective Arrangement Proceeding.” But the Legislature can do far more to expand the right to counsel here, as so many other states have already done.
A second important way we can address this gap is by ensuring that the state’s legal aid programs have the resources needed to assist Mainers in civil cases. A pending bill, LD 1326 “An Act To Provide Funding for the Maine Civil Legal Services Fund,” would, if enacted, go a good distance to that end. Funding civil legal aid is a smart investment for the state. As noted in a 2016 study, “Economic Impact of Civil Legal Aid in Maine,” by University of Maine economist Todd Gabe, such funding puts millions of dollars back into the state’s economy and attracts federal dollars while improving the lives of thousands of its residents. The more people that legal aid programs can serve in civil cases, the closer Maine will be to fulfilling its promise of “justice for all” and to giving all Mainers a fair chance in our civil justice system.