Public Justice Center staff attorney John Pollock outlines current efforts to institute the right to counsel in civil matters.
ABA Law Student Podcast
John Pollock is a staff attorney for the Public Justice Center who has served since 2009 as...
Meghan Steenburgh is a graduate of the JDi program at Syracuse University College of Law. She is...
In the United States, the right to counsel in civil cases is currently a very complex issue. Some states provide counsel in certain types of civil cases, but not others; while other states may have little or no access to civil counsel in any matters. With this complicated picture in mind, what should be done to attain more equality throughout our nation’s civil courts? ABA Law Student Podcast host Meg Steenburgh talks with John Pollock about the many implications of a lack of legal counsel across a variety of civil matters (with a particular focus on guardianship) and his ongoing efforts to establish the right to counsel for low-income individuals.
John Pollock is a staff attorney for the Public Justice Center and has served as the coordinator of the National Coalition for a Civil Right to Counsel since 2009.
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ABA Law Student Podcast
The Pursuit of a Civil Right to Counsel
March 31, 2021
Intro: Welcome to the official ABA Law Student Podcast where we talk about issues that affect law students and recent grads; from finals and graduation to the Bar exam and finding a job. This show is your trusted resource for the next big step. You’re listening to the Legal Talk Network.
Meg Steinberg: Hello and welcome to another edition of the Aba Law Student Podcast. I’m Meg Steenberg of 2L at Syracuse University College of Law JDI Program. This episode is sponsored by NBI. Taught by experienced practitioners, NBI provides practical skill-based CLE courses attorneys have trusted more than 35 years. Discover what NBI has to offer at nbi-sems.com.
Today, we are honored to have with us John Pollock, staff attorney for the Public Justice Center who served for more than a decade as coordinator of the National Coalition for a Civil Right to Counsel. His work focuses on working to establish the right to counsel for low-income individuals in civil cases involving basic human needs such as child custody, housing and benefits. This means supporting and coordinating the efforts of 300 participants and 200 partners around the country involved in litigation, legislation, research support and other advocacy. He is the author or co-author of numerous articles and is also the author of ABA Resolution 114 from 2018 supporting the right to counsel whenever physical liberty is at stake. He is the recipient of the 2018 Innovations Award from the National Legal Aid and Defender Association and serves on an advisory committee for the American Academy of Arts and Sciences. Thank you John for joining us today.
John Pollock: it’s a pleasure to be here.
Meg Steinberg: I’m going to begin with a full disclosure of my intentions because I’m taking elder law right now. I just watched ‘I Care a Lot’ on Netflix. The Free Britney Movement is vocal and present and inspiring discussion. Guardianships, conservatorships are in the news. And so that was partly my motivation for reaching out to you, John. I want to learn more about that specifically but first, I guess more of a global perspective, tell us about the Public Justice Center.
John Pollock: So the Public Justice Center is a Maryland-based advocacy organization and it does impact work across the state in a lot of different areas including housing and school and other really critical areas, workplace justice. The Public Justice Center was one of five organizations that actually decided to create the National Coalition for a Civil Right to Counsel back in 2003 and is currently the only entity to staff it through my position and one other position. So even though the work of the Public Justice Center is in Maryland, it saw the importance of this issue from a national perspective and wanted to be a contributor to advancing the issue.
Meg Steinberg: And so your role with the National Coalition for a Civil Right to Counsel, tell us about that.
John Pollock: Sure. So as a coordinator, my role is to really be aware of and support all of the efforts that are happening in the 41 states where there is currently activity. And those efforts range from people who are trying to argue that it’s a constitutional right that people should have whether it’s in guardianship or family law or whatever the area might be. There are people who are trying to get city, state and federal legislation to establish it as a right and then there are people who are looking to do research, social science research, to demonstrate how counsel makes a difference in these kinds of proceedings to looking at how it changes the outcomes, what cost savings there are and so on. So my role as coordinator is to first of all, again, to be aware of everything that’s happening nationally, to make sure that everyone else is aware of what’s happening nationally, and then to basically determine what support those advocates want. It may be that they want me to help that right of brief, prepare for oral argument, contribute legal research, strategic analysis, identifying stakeholders, responding to opposition arguments, writing bills. It’s really whatever the people in that state want from us.
And what those people are is really variable. Sometimes it’s legal services programs, it could be access to justice commissions, it could be tenant organizers, non-profits, city councils, mayors, state legislators; whoever reaches out to us, we are there to basically help and ensure that this issue is given its due.
Meg Steinberg: So to the basics, in America, who has the right to counsel?
John Pollock: Well, that is a great question. And I often say that if you walk down the street and asked that question of people and said, “Do you have a right to counsel in civil cases?” You would almost certainly get the answer yes or you’ll get the answer no and the answer is neither of those things because it depends on what the issue is and it depends on what state you live in.
In criminal cases, the Supreme Court said in a series of cases that if you’re basically in a criminal proceeding and you’re facing jail, you have a right to counsel and the state will provide you counsel if you can’t afford it. The Supreme Court has not said the same thing on the civil side and in fact to several occasions it said that there isn’t a right to counsel even when incredibly important civil interests are at stake.
Because the states can do more than the Supreme Court and in fact both under their state constitutions and through their legislatures they can basically go further than what the Supreme Court has said, they’ve in fact provided a right to counsel in some areas almost in every state and then there are some areas where it depends. It’s really fewer areas like private custodies, disputes and domestic violence. We only have a few states that provide counsel whereas matters involving child welfare like from a state involvement perspective and mental health, we tend to do a lot better and have the majority of states or almost every state that has a right to counsel.
So at the end of the day, it’s really a complicated picture. It’s not like criminal cases where you just have a one — you have a mandate from the Supreme Court. We have this state by state issue by issue sort of way of looking at the issue.
Meg Steinberg: And I’ve seen in a number of the articles, you’ve compared one of those cases; Gideon v. Wainwright and that right to counsel. Talk to us through about why it is just as important and for all of us who’ve taken civil procedure I think that might be the answer alone but why is it just as important to have that right to counsel on the civil side as on the criminal side?
John Pollock: Well you know, the right to counsel at the base really should be about what is at stake for people; what do they stand to lose. That’s ultimately the most important consideration. With Gideon, I think the understanding was that being incarcerated is a very serious penalty and it is. Incarceration itself is very dramatic and then it has lots of collateral consequences that come along with it but the same exact thing is true in civil cases.
And in fact, I’ll start off by just saying you can be incarcerated in a civil matter, that’s something that really blows people’s minds when they learn that you can be incarcerated in a civil matter and not be provided counsel depending on what state it is, depending on exactly why you’re being incarcerated. And a couple of examples of that are if you are unable to pay child support. That can be treated as a civil matter and you can go to jail. It actually can also be treated as a criminal matter which is also incredibly confusing and it can go back and forth between being criminal and civil for a certain individual’s case depending on how the state is feeling about how they want to treat that person. They can say we’re going to proceed civilly, we’re going to proceed criminally and we can get into the specifics of why they’re able to do either one but either way whether the person is jailed civilly or they’re jailed criminally, they’re jailed.
That jail is no different. They are going to be incarcerated. They are going to lose their job most likely if they spend any amount of time in jail. They’re going to have all the collateral consequences of being in prison that a criminal defendant would have had. That’s just one example of something that just directly correlates to Gideon.
But then if you’re talking about someone who is losing their home and everything that happens with that, you basically — if you lose your home to an eviction, homelessness can follow from an eviction and does a follow and when you’re homeless you can be arrested as well and incarcerated and many people are and you can also die by living on the street because of the conditions of living on the street. You can lose your job. Your kids may lose access to their schools because you have to move out of the district. You may lose your children themselves because you no longer have a stable home to provide them. That’s housing.
Domestic violence involves people’s lives being at stake. Immigration involves being removed from this country and potentially brought back to a country where your life is at risk. The examples just go on and on. Civil cases involved the ones that we focus on, what we call basic human needs, involve very-very serious consequences that we consider to be on par with what a criminal defendant faces.
Meg Steinberg: And with myriad substantive issues, how do you keep abreast of every issue that you just named? And know there are more too.
John Pollock: The magic of technology. To some degree, it’s really two parts. We have a gigantic network of people at this point. It’s actually more. We’re up to about more like 600 people in our network and through those people we often learn about initiatives, bills, efforts and so on that are that are happening or in some cases situations where something really bad is happening and a right to counsel needs to be responsive to that situation. And the other way is an incredible number of alerts from Lexis and Westlaw, from Google, from Twitter from — I’ve actually found out sometimes about legislation from Twitter when I did not know about it any other way.
And part of my responsibility in this role is to basically have daily monitoring that I review all of these alerts to go through looking for things that I didn’t already know about. And if I find out about something, immediately reaching out and finding out what’s happening.
In some instances, we’ve actually found out about efforts where when we contact the people in the state we work with, they’re completely unaware that those things were happening because there’s sometimes a disconnect between different sort of segments working on something.
And part of our job as coalition builders is to make sure that these in-state efforts are supported by all of the stakeholders that they all are aware of what’s happening and have the chance to be involved.
Meg Steinberg: And as coalition builders you are not directly interfacing with the client. You are helping with the policy and circulating everything and working toward that end, correct?
John Pollock: That’s correct. We actually just won two cases or helped, I should say, really helped win two cases last year and in both of those cases we’ve never spoken to the client or clients in question. And these decisions that we win have statewide ramifications for everyone who falls into that category. For instance, like every parent who’s being subjected to an adoption proceeding against their will where they’re going to lose their children forever. We don’t ever meet the parents. We don’t get to see the results of — when we established that right, all the parents that subsequently get lawyers that’s kind of on a different level.
Our job is to support the organizations that then work with those affected populations.
Meg Steinberg: And from whom do you receive your funding?
John Pollock: We are fortunate to have funding from several foundations and I’ll mention who they are because we like to give them credit for their incredible support. The JPB foundation, the Kresge Foundation, the American College of Trial Lawyers Foundation, the International Association of Trial Lawyers Foundation. They’ve all recently provided support to us to continue this work and we also have a few individual donors that are very supportive and then we also fundraise from the population that we serve. We fundraise from them every year and raise a certain amount from that. And between those sources basically we managed to sort of support our efforts.
Meg Steinberg: So let’s head into guardianship if we may for a moment. Can you talk to us about guardianship and what a guardianship means and why it is so important to have right to counsel in that kind of circumstance?
John Pollock: So a guardianship proceeding is one where there is a perception that an individual is not able to take care of their own affairs and that — there are really two kinds of guardianship. One is called of the person and one’s called of the estate. And basically of the person means everything. Essentially it’s more of a question of what it doesn’t involve. Basically, every sort of thing that you take for granted in your life like choosing what you eat, what medications you take, where you live, who you talk to, who you’re allowed to associate with, pretty much everything. Your entire autonomy is at stake in the guardianship of the person.
A guardianship of the estate is your finances, your money and your res. Essentially, that’s what that’s about. So the perception is that this person does not have the capacity to manage themselves or manage their finances anymore and that there’s a need for a person to manage that on their behalf, that’s the guardian.
What we have found is that these guardianship proceedings generally often do involve someone who really does need assistance but what happens is that the guardianships that are granted are extremely broad often more broad than they need to be. The person may have an issue for instance where they’re not able to keep up with their medication. That does not mean that they need a complete guardianship over everything that they do. Yet the courts often will grant a guardianship over everything. In some cases, even where the person seeking the guardianship has said “I only want a guardianship of this one thing.” I only need to do one thing for them they don’t need a complete guardianship. The court still grants a complete guardianship anyway. So that’s a very serious problem.
There is also an issue that guardianship proceedings are sometimes brought by people who do not have the interests of the person at heart. What they are really looking to do is take advantage of the person’s resources and which they can do as guardian they have control over that person’s finances and sometimes you’ll have a person who’s seeking to exploit them that will seek a guardianship and in some cases the courts grant a guardianship without even meeting the protected person ever or holding a hearing. They simply get a petition. Consider again what’s at stake. This is something that takes away every right a person has and a court may grant that petition without even holding hearing just based on what was filed in the court.
Meg Steinberg: How did we get to this point?
John Pollock: That is a fantastic question and I wish I knew the answer to it. I think that the guardianship statutes at one point were not necessarily being exploited as much so there wasn’t as much of a concern about the due process problems that were inherent in these statutes. I actually analogize it to adoption really that when the states created adoption statutes for children they did not anticipate that they would be used to get around the child welfare code that basically a person who wanted to take away a child from someone instead of going to the state to say like there’s neglect here or there’s abuse here would actually use the adoption statute to rest the child away from someone. The adoption statutes were really intended for situations where the parents were dead or gone or completely out of the picture, not someone where they’re in the picture and someone’s alleging they haven’t been sufficiently involved.
But yet those statutes are now being exploited to take children away from people without providing them counsel or other due process protections and I think the guardianship law is a little bit like that. They’re being used in a way that was not really imagined originally when they were written and so they don’t have enough protection in them based on the way that they’re getting used.
Meg Steinberg: We are speaking with John Pollock, staff attorney for the Public Justice Center and coordinator of the National Coalition for a Civil Right to Counsel. We’ll be right back.
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Meg Steinberg: And we are back now with Attorney John Pollock, staff attorney for the Public Justice Center and coordinator of the National Coalition for a Civil Right to Counsel.
So on your website, it’s a fabulous website. civilrighttocounsel.org/map in particular for this next question, you’ve got a whole map of the United States and where we’re at various levels of guardianship and rights within those states, can you help us understand the various levels within a state? And then I think some of it is establishing guardianship, terminating guardianship, could you walk us through, please?
John Pollock: Yeah. Right to counsel is an immensely complicated area of law and in fact when we built this this map that you’re talking about with our developer that we hired to do it, originally I think even knowing the laws we did, we did not anticipate how complicated it would be to try to explain this to people in a map form which is why if for people who do visit the map, there are you know four categories really in general of the way we present the right to counsel. We say yes categorical and which we have the color green to represent and that basically means there’s a right to counsel without any sort of qualifications or limitations or anything else other than the person being indigent which is one we sort of take for granted. Then there’s discretionary which means the court has the power to appoint someone but isn’t required to do so. Then there’s no there’s simply nothing on the books like discretionary or otherwise the court doesn’t have any authority, there’s nothing in there. And then there’s this last category which we color purple which I call the it depends category in which so many states fall because it may be — well yes, the right to counsel attaches but only for kids over a certain age or only at this stage of the proceeding not for the initial stage or only if certain other conditions are met.
And that’s actually quite common in a lot of these areas that it’s complicated which is why if you go to the map and you click on a particular state, it’ll pop up a box that gives you the details and then if you click on the pop-up it’ll give you even more details; the complete source of law, all the case law, everything. We provide all of that to the public so that they can really try to understand how this works.
So in guardianship, the big problem that we have is there are states that have a right to counsel clear unambiguous no problem, there are states that don’t have anything, those are our biggest focus and then the states that are in the middle the ones that we consider an issue are ones where they appoint an attorney to serve in an ad litem role and this is where we feel there’s a real problem because what an ad litem attorney does is they do not advocate for what the person in the proceeding wants. So if the person says to them, let’s say, we call that the protected person, the one who guardianship is being sought for, if the protected person tells the attorney I do not want this guardianship and the attorney is serving in an ad litem role, what the attorney can do is say, “You know what, I’ve talked to this person. I think they do need a guardianship and so I’m going to advocate that the guardian should be imposed on them.” They basically are authorized to not advocate for what the person wants.
From our perspective, there is already someone in the courtroom advocating for what the person doesn’t want which is the person seeking the guardianship. There’s not a need for a second voice doing exactly the same thing. If the person’s voice is not represented in the courtroom, the Court will never hear it because the protected person will not be able to present that to the Court especially when you’re talking about people with cognitive disabilities or other disabilities in the courtroom. So that limitation and you’ll see on our map we do not consider those states to be green where they appoint an attorney ad litem because that for us is a problem.
Then the other sort of aspect of the issue is there’s the question of when the guardianship is created you need an attorney for that but there are people who need a guardianship and then a year, two years, five years, ten years later the condition that they had that required the guardianship is not present anymore. Some disabilities are not permanent and the person may not need the guardianship anymore and they want to go to the Court and say “I want the guardianship to end.”
The guardians who are the ones that actually are over the guardianship often do not want the guardianship to end. And so if the person goes into Court without a lawyer and tries to argue to end the guardianship and the guardian opposes them, the person seeking to end the guardianship will lose. That is what will happen. So basically it’s just as important for what we call the restoration or termination proceedings for that person to have a lawyer too. And the law and that is a little all over the place also. Some states provide it for the establishment but not for the termination proceeding and that’s obviously a big problem.
Meg Steinberg: I mean at what point in here does the judge step forward? I would imagine you need evidence in either direction or do you do you not?
John Pollock: Yes. So these proceedings can be really quite complex because you’re potentially talking about medical documentation about someone’s both their condition as well as how it affects their ability to carry out their activities of daily living or whatever the way that it’s approached maybe. And so it is quite complicated and the court does have to hear all of that but as I referenced before in some of these cases you’ll have a person seeking guardianship who will file an affidavit with the Court from a doctor who says, “Yeah, I think there’s a guardianship needed” and the Court just says granted. No hearing, no evidence put on in the courtroom, no testimony from the protected person, nothing. They just will rely solely on the thing filed by the person seeking the guardianship. That is not appropriate.
When you’re talking about a deprivation of this magnitude where you’re talking about taking away every right a person has to self-autonomy to not even have a hearing to ensure that you’re really getting the full story of the of the situation, from our perspective, that’s indefensible and the thing we say about the difference that attorneys make in guardianships is there are some cases where guardianship should not happen at all. They’re not appropriate and the attorney needs to be there for that. Probably percentage-wise, that’s a smaller percentage of the total cases.
The places, the bigger percentage are cases where either the person seeking to be guarding is not appropriate because they have a conflict of interest or the guardianship that’s being sought is too large; it’s more than is necessary. And if the attorney is not there for the protected person, those two points will not be argued. The judge is not going to proactively explore the appropriateness of this. They’re going to rely on what they’ve heard. They’re not going to — in our judicial system, in general, judges do not take an active role in questioning. They basically, they rely on, they rule on motions but they’re not going to actively question litigants or push back on parties on their arguments absent some opposition from the other side. That’s not their role.
In fact, a lot of judges will say they’re not allowed to do that because it means taking sides in the discussion. So they’ll expressly say they cannot do that and this is a little bit to be contrasted from if you look at for instance unemployment cases where they’re in an administrative context and the administrative law judge is expected in fact to do that kind of inquiry. They will ask lots of questions of the parties to sort of try to understand the case. It’s a very-very different situation than what you get in a guardianship or an eviction case or domestic violence case or anything that happens in a judicial court and not an administrative proceeding.
Meg Steinberg: So where are we in terms of the federal government? I saw your organization worked on some things in 2018. I’ve seen some movement to congress recently. Where are we from the federal government side of things?
John Pollock: So congress has only recently, I think, started to become really aware of the eviction crisis. I think that it was really something to start seeing congress talking about eviction because eviction was nowhere on their radar for so many years, let alone the right to counsel. So just even getting awareness of an eviction crisis and that happened even before coronavirus. There are starting to be an awareness. I think the activity of Matt Desmond in releasing his book ‘Evicted,’ the eviction lab’s publication of data about how many evictions are happening nationwide, the rise of tenant organizing which cannot be said enough and how much tenant organizers have brought this issue to the fore and the work of legal services programs to amplify their success in defending eviction cases. All of those things I think have really raised the bar on the federal government’s awareness.
So we started to hear from some members of congress who reached out about bills which they filed in 2019 to try to start getting at the right to counsel or tenant representation problem. Those bills didn’t advance in 2019 some of which came right as the pandemic was happening so it kind of makes sense that they didn’t advance right away. The current funding that’s come down from congress has not to date really been responsive to the need for representation. They have provided a moratorium on evictions. The federal government has provided substantial rent relief but representation for tenants has really not been specifically targeted as its own need. And from our perspective, that’s so very problematic because we’re seeing the federal government’s moratorium being ignored right now by courts, by landlords.
They’re doing everything in their power to get around it. They’re filing evictions that violate it. They’re just illegally evicting tenants left and right not even bothering filing an eviction. They’re just locking the people out of their houses.
So when you see all of this good law going to waste because there aren’t enforcement mechanisms in place to ensure that the moratorium is respected to ensure that tenants who apply for rental assistance are not wrongfully denied or can’t complete the paperwork on their own or that the courts evict them while they’re trying to apply for rental assistance which is also what’s happening. That without that enforcement piece the other two prongs of this incredibly important relief response are not going to be as effective. So from our perspective that has to come from the federal government. There has to be direct recognition and support of representation of tenants.
The only way in which it has come out, and this is important, is that the rent relief money and the money that was given to the states to respond to coronavirus, those have some flexibility in them to allow money to be used for tenant representation if the jurisdictions decide that’s what they want to do with it and we have — are increasingly starting to see jurisdictions using the money for that purpose saying we have to provide money for tenant representation along with all of our other coronavirus response efforts.
Meg Steinberg: So when it comes to right to counsel, what states are doing it right?
John Pollock: Well, so far there is no state that’s doing it right but there are seven cities that are. We have seven cities all of which have started in 2017 and onward so really we’re talking about an incredible growth in an incredibly short amount of time. The seven cities that have passed the right to counsel are New York City, San Francisco, Newark, Cleveland, Philadelphia, Boulder and Baltimore. And impressively, two of those, Boulder and Baltimore, were done during the pandemic showing just how strong this movement has become. And we are now looking in 2021 at eight states right now that have pending legislation on right to counsel. That’s unprecedented to see that many happening at one time and what’s really exciting is one of those bills has already gotten out of the state senate in that state several of the others have already had committee hearings. Actually now, two have gotten out of one of the branches of government, Maryland and Washington State. Of the other six, several have had their first hearings already in committee.
So we are seeing really significant interest. We’re seeing major drive for this. We know that actually several other states are going to be filing legislation very soon. We’re expecting it. We’ve been in consultation with the advocates in those states about it. And I think there’s a lot of recognition from policymakers in a way that we’ve never had. They’ve seen the data on how much difference counsel makes, how much money it saves, how much these proceedings are destroying communities of color and in all of the ways that this needs to happen, there finally is some recognition.
Meg Steinberg: You can hear the passion in your voice. Your motivation, your enthusiasm and I should have said I don’t even think I said at the top that you’re a graduate of Northeastern School of Law. How did you end up here? How did your path take you to this point in time?
John Pollock: Well, I’d be lying if I said that I knew I’d be in this kind of work exactly but I was a person who applied to law school intending to do public interest law. It was sort of most of my career before going to law school. It was something I knew I wanted to do. I didn’t know what form that would take. Originally, I knew I was very interested in housing and I actually had a proposed fellowship project after I graduated that I sought funding for to do work on housing discrimination and actually as it turned out the funding almost came through but not all the way leaving me sort of a bit of drift after I graduated for a little while but I found my way to the Southern Poverty Law Center first and then the Central Alabama Fair Housing Center doing work on enforcing the fair housing act and both of those jobs really got me interested in this issue of people without counsel because I thought you know here I am doing all this really complicated work and with — and some of these cases it takes me six months as an attorney to prevail what chance do these people have without counsel. It’s just impossible.
And so I put the issue really on my radar and then I saw this fellowship come up which was originally for two years. it’s now 11 years later I’m still in this work but it was to run this coalition and I sort of said yeah absolutely like this is — I want to change the system in a way that’s going to enable more people to basically bring their issues forward and have them heard because right now the legal system we have is a travesty and without counsel there’s no justice at all in almost any area.
Meg Steinberg: What is your advice for law students?
John Pollock: I’ve thought about that a lot I think that as far as career sort of advancement and goes I often say to really shoot high whether that means applying for jobs where you don’t think you’re eligible.
If the job is not remote and they want you to be there but there’s really no reason you need to be there asking them if they consider a remote possibility. Often I say to people, if they’re eligibility requirements unless they’re a language requirement you should kind of like really try to apply anyway because most requirements are flexible whether it’s years of experience or substantive knowledge like if you’re really excited and interested in a job, go for it. There’s nothing to lose by calling the place and asking if you could still apply or putting in an application. You really lose nothing.
The other part I’d say is jobs that are time limited or often not so, that’s probably the thing I see the most is that when if you get hired for a fellowship and they like you, the chances are they’re going to try to do everything they can to keep you on after the fellowship is over. That’s what I see in most places. So if you’re thinking, “Oh you know, I don’t really want to go after a one-year job or two-year job because I’m going to have to just look again afterward.” Don’t assume necessarily that’s the case. Talk to the organization about their history of hiring former fellows. Some of them have a long and rich history of doing that. Again, it’s just about like don’t get too turned off by job parameters that don’t seem immediately like they fit what you’re looking for.
Meg Steinberg: And do you allow law students to help you?
John Pollock: We do. We allow them and even encourage them. We have had many law students over the years who have done research for us. As I mentioned, the right to counsel is incredibly complicated and we’re constantly learning about nuances that we didn’t even perceive. I’ll just give an example. We have a law student right now who’s doing research for us on involuntary medical treatment which is an increasingly growing area of the law especially with the opioid crisis and now states are starting to pass outpatient treatment laws in addition to their inpatient ones because they didn’t have anything set up for that but one of the things that I learned that I didn’t know was that if you’re committed to a mental health facility that doesn’t necessarily mean that they have the right to treat you in certain ways. The facility may still have to go back to court to get an order to provide certain kinds of treatment and then the question of the right to counsel comes up again. So it’s not just for the initial commitment where the right to counsel is absolutely essential, it’s for a treatment decision that comes after you’ve been committed. Whereas we thought that the only time that involuntary treatment came up in its own hearing was when it’s outpatient. So now we have to do this additional research to get an inpatient post-commitment treatment. So the law is really complicated and whenever we find things like this we were like “okay, now we need to go back and get more 50-state research done.” We also have had law students that come and intern for us when we have the capacity to take them too.
Meg Steinberg: so as we conclude, what’s the legacy you wish to leave? When will you feel you can rest?
John Pollock: That is such a great question and one I probably should be spending more time thinking about. Shouldn’t we all be thinking about how to put ourselves out of business? I think that the only time I could rest is when the right to counsel exists in basic human needs cases writ large and because the category of what’s a basic human need is so broad, I think it’s going to be hard to really see our work done unless there were a Supreme Court decision at the end of the day that says across the board for civil cases involving basic human needs there’s a right. I don’t think that’s going to happen so I think we really have a state by state movement. I think maybe in the future we’ll see the federal government be more responsive to funding a right to counsel at the state level as we grow the sort of awareness and popularity of a right to counsel. I think that might come in the future.
But what I really want to see at the end of the day, the right to counsel is not really the end goal. It’s really the mechanism for protecting important rights; fundamental and essential rights. So what I want to see is that people who are losing these things, who stand to lose them have a chance to really have their case be fully heard and understood and that they have the best possible defense put on for their issue. Not what happens now which is the courts essentially listen to whichever side has a lawyer and that is not justice. It’s not anything. I want to see courts doing what they’re supposed to be doing which is providing equal justice under law.
Meg Steinberg: Attorney John Pollock, Public Justice Center National Coalition for a Civil Right to Counsel, thank you for joining us.
John Pollock: Thank you for having me. It’s been a pleasure.
Meg Steinberg: And thank you for listening. I hope you’ve enjoyed this episode of the Law Student Podcast. I’d like to invite you to subscribe to the ABA Law Student Podcast on Apple Podcasts. You can also reach us on Facebook at ABA for Law Students and on Twitter at Aba LSD. That’s it for now. I’m Meg Steinberg. Thank you for listening.
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|Published:||March 31, 2021|
|Podcast:||ABA Law Student Podcast|
|Category:||Access to Justice|
ABA Law Student Podcast
Presented by the American Bar Association's Law Student Division, the ABA Law Student Podcast covers issues that affect law students and recent grads.