Washington Lawyer - November/December 2021 - 23

FEATURE
As with adult Sixth Amendment rights, individual cases coming before
the courts will continue to define the scope of juveniles' rights.
Access to counsel in delinquency proceedings is not " the primary issue "
anymore, says Wallace Mlyniec, Georgetown University Law professor,
author, and founding director of Georgetown's Juvenile Justice Clinic,
which has served D.C. youth since 1973. " In D.C., every kid gets a lawyer. "
Nationally, however, " many lawyers carry extremely high caseloads " and
depend on judges to appoint them and authorize their fees, Mlyniec
says. In some states, " too many solo practitioners carry a high caseload
to make a living, which can hinder their effectiveness. "
Like the adult system, Mlyniec says most juvenile cases end in plea
bargains. Although Juvenile Justice Clinic law students explain alternate
case resolutions available to their clients, many " are more concerned
with staying out of detention than with considering the long-term consequences
of pleading guilty. "
With their small caseloads, law students staffing the Juvenile Justice
Clinic can be especially effective for clients, often spending many hours
lining up support services such as assistance with housing, education,
drug treatment, and mental health, which can " help clients stay out of
the juvenile legal system, " says Mlyniec.
Mlyniec also sees greater efforts by D.C. institutions to improve the
juvenile legal system. " The D.C. courts have taken a role in raising standards
for attorneys appointed in delinquency cases, " and unlike in some
other jurisdictions, the D.C. Council, courts, prosecutors, and agencies
that handle delinquency cases " have been willing to support greater
due process protections, " he says.
WHEN IT'S A CIVIL MATTER
When it comes to finding legal help with non-criminal matters that often
arise at critical points in Americans' lives, the answer won't be found in
the Sixth Amendment. More than 80 percent of Americans do not have
legal assistance when they face loss of their homes or unfit housing conditions;
domestic violence, divorce, or contested child custody; overbearing
debt collection methods; and difficulties obtaining government
program benefits to which they're entitled.
Legal aid organizations offering free or low-fee services in civil matters
took root in the 1870s and have proliferated over time, mostly through
state and local efforts. The 1960s sparked new federal initiatives to
broaden access to counsel. The Johnson administration's " war on
poverty " programs tested different models for delivering legal aid, which
evolved into 1974 legislation authorizing the independent nonprofit
Legal Services Corporation (LSC).
With funding dependent on congressional appropriations, LSC's charter
and budget have been influenced by differing political views since the
1970s. Today, LSC is the largest source of civil legal aid funding for lowincome
Americans, distributing some $488 million in 2020 to grantee
organizations with 800 locations across all 50 states. LSC funding provides
legal assistance in areas such as family law, housing, and disaster relief,
and offers programs for veterans, rural residents, and others.
For its part, the Supreme Court has decided few cases on the right to
counsel in civil matters. It has not entirely ruled out this right, but the
due process interest-balancing tests it established in cases like Mathews
v. Eldridge (1976) (termination of Social Security benefits) and Lassiter v.
Department of Social Services of Durham County, N.C. (1981) (termination
of parental rights) reserved significant discretion to states in deciding
when to appoint counsel in civil cases.
Given the breadth of potential legal issues that arise in the civil context,
access to legal representation in non-criminal matters has typically
focused on issue-specific, rather than general, legal needs. Implementation
of programs is often managed at the state or local court, or even
at the individual judge level, which naturally produces varying standards
and accessibility.
Many states have statutes or court rules authorizing appointment
of counsel in a range of instances, including when federal funding
programs call for it, such as in cases involving housing discrimination,
medical and mental health-related law, child abuse and neglect, abortions
sought by minors, and guardianship. Some state, local, and city
governments, notably California, New Jersey, and New York, also have
started to address specific legal needs, which vary by jurisdiction, in
areas such as eviction and housing, adoption, and child custody.
The District of Columbia has strong legal aid traditions. Chinh Le, legal
director of the Legal Aid Society of the District of Columbia from 2011 to
2021, witnessed steady growth in the number and variety of legal aid
providers during his tenure. Founded in 1932, Legal Aid is the District's
largest general civil legal aid organization, providing legal assistance with
housing, consumer law, public benefits, family law, and domestic
violence cases.
The increase in legal services providers offering issue-focused legal
assistance makes coordinating legal aid resources to underserved D.C.
communities an ongoing challenge. But Le says the city enjoys certain
unique advantages when compared to other jurisdictions. " [The D.C.]
Access to Justice Commission, D.C. Bar Foundation, D.C. Consortium of
Legal Services Providers all contribute significantly, and it helps to be in
a geographically compact jurisdiction with a large and robust legal community
that very generously supports civil legal services, " Le says.
Le concurs that access to counsel for indigent defendants " isn't the only
issue today. Effectiveness is equally important. " With civil legal needs
remaining largely unmet, various initiatives are underway to improve
access to legal services. Le doesn't support approaches, however, that
" reduce quality in the name of efficiency, whether it's technology or
other solutions, if they compromise access to direct individual services. "
Le says the pandemic " revealed some of the opportunities for courts and
agencies serving people living in poverty to improve and simplify their
processes. "
We learn much by taking stock of our progress and unfinished work.
From the touchstone of the Sixth Amendment to Gideon, Gault, and
the growth of civil legal aid, we've made strides toward the promise of
access to counsel and justice for more Americans than at any time in our
history. In looking at access to counsel through the prism of equal justice
for all, we will, as earlier generations have done many times before,
weigh our standards and values, and in light of new circumstances, we
will reset them, even if we've long assumed they were right.
Kathleen Troy, an attorney and founder of strategic general counseling,
practices in the Washington, D.C., area and is a frequent contributor to
Washington Lawyer.
NOVEMBER/DECEMBER 2021
* WASHINGTON LAWYER 23
Washington Lawyer - November/December 2021

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