The Other Right to Counsel: The Civil Guarantee in State Constitutions

Authors

• Dmitry Bam, University of Maine School of Law

Abstract

When most people speak of the right to counsel, they speak in the singular. After the Supreme Court’s seminal decision in Gideon v. Wainwright, the right to counsel in criminal prosecutions has become one of our most cherished fundamental rights. It is a right ingrained in our culture. Even children can recite the mantra that the accused have the right to a lawyer, and if they can’t afford a lawyer, one will be provided to them free of charge. It is no surprise, then, that our constitutional focus is trained on the criminal defendant’s right to counsel. After all, there is only one “right to counsel” provision in the United States Constitution, and most constitutional scholarship begins and ends with federal guarantees. But states have their own constitutions, with their own guarantees. These guarantees often go beyond those of the Federal Constitution. And when it comes to counsel, some state constitutions contain two separate and independent right-to-counsel provisions—one for criminal trials and another for civil trials. Take the Maine Constitution: it contains two provisions guaranteeing parties the right to counsel. The first is article I, section 6, which deals with counsel in criminal cases. The second is article I, section 20, which deals with counsel in civil cases. Adopted at the same time, using nearly identical language, these provisions appear closely related and suggest a deliberate effort by the framers of Maine’s Constitution to enshrine the right to counsel across the spectrum of legal disputes. And in fact, the provisions were largely understood to be coextensive when the U.S. Constitution was written and for many decades after. Over time, however, this unified understanding has diverged and today these provisions are interpreted in vastly different ways. Article I, section 6 is interpreted to ensure that indigent defendants will be represented by counsel if they cannot afford one, with extensive structures in place to uphold this right. In stark contrast, article I, section 20 has received little attention from scholars, lawyers, or judges, leaving a significant gap in representation for parties facing high-stakes civil matters without guaranteed access to counsel. This disparity undermines the equitable access to justice envisioned by the framers of Maine’s Constitution and contravenes the document’s plain text and original meaning. This civil right to counsel is a forgotten right. It is an overlooked guarantee embedded in the Maine Constitution but never enforced or even discussed. This oversight is perhaps to be expected: state constitutions, despite their critical importance, receive far less attention than their federal counterpart. Even as state constitutions provide independent sources of rights and protections, they often remain underexplored in legal scholarship and practice. In Maine, for example, the Supreme Judicial Court has seldom invoked Maine’s Constitution to recognize new rights or to depart significantly from the interpretation of analogous provisions in the United States Constitution. For nearly every provision of the Maine Constitution that has a federal analog, the court has held that the two provisions are coextensive. Similarly, in other states, the civil right-to-counsel provision is frequently diminished and disregarded by judges, lawyers, and scholars alike. For example, in rejecting the right to counsel in civil cases, the Wisconsin Supreme Court relied on the Due Process Clause of the Constitution rather than on the express provision in its own constitution that provides that “[i]n any court of this state, any suitor may prosecute or defend his suit either in his own proper person or by an attorney of the suitor’s choice.” This neglect leaves millions of Americans navigating high-stakes civil cases, often involving housing, child custody, or basic survival, without the legal representation they desperately need. It also undermines related rights, like the right to a jury trial, which is intentionally linked to the right to counsel in the Maine Constitution. This Article seeks to address this oversight, drawing attention to this long-neglected provision in state constitutions.

First Page

311

Recommended Citation

Dmitry Bam, The Other Right to Counsel: The Civil Guarantee in State Constitutions, 78 Me. L. Rev. 311 (2026).
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol78/iss2/5