Letter From The President Of The New York City Bar Association

2009-12-01 00:00

To The Readers Of The Metropolitan Corporate Counsel:

What A Difference A Lawyer Makes

If we live by the rule of law, then right to counsel should be seen as a fundamental right. That's because our justice system, which is supposed to be a level playing field, is for all practical purposes inaccessible without legal services.

Clients often arrive at the City Bar Justice Center after trying to go it alone, and it's amazing to see what a difference legal representation makes. The Justice Center's Consumer Bankruptcy Project, for example, handles some 100 bankruptcy filings a year with a virtual 100 percent success rate. By contrast, the failure rate for pro se bankruptcy filings in New York State is a stunning 90 percent; the sad paradox, of course, is that people filing for bankruptcy usually can't afford a lawyer to help them.

The Justice Center recently teamed up with The Legal Aid Society and the American Immigration Lawyers Association to set up clinics inside the Varick Federal Detention Facility for detained immigrants through the NYC Know Your Rights Project. Having counseled over 50 detainees, we discovered that more than one-third of them had some basis for relief.

And yet by law, immigrants have no right to counsel. Even those with unassailable claims must leap high language and cultural hurdles, and without access to legal services, what chance do those detainees have? Plenty of immigrants who have lived here for many years and who, through a lawyer's successful involvement, have narrowly escaped the breaking up of their families, or their forced return to a country where their life may be in danger, will tell you how important legal services have been to them.

Lessons learned from the NYC Know Your Rights project have contributed to a recent report by the City Bar's Immigration and Nationality Law Committee supporting the right to counsel for indigent detainees. Characterizing removal proceedings as "criminal trials in all but name," and citing the Supreme Court's holding in Gideon that indigent defendants have a Sixth Amendment right to appointed counsel, the report argues for this same basic right to be extended to immigrants. As Justice Brandeis wrote more than 80 years ago, removal can result "in loss of both property and life; or of all that makes life worth living." Right to counsel must be considered an integral part of the debate on immigration reform.

Like the U.S. Constitution, international covenants and treaties like the International Covenant on Civil and Political Rights, the United Nations Declaration on Human Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination confer basic due process rights on individuals facing loss of liberty. The Vance Center for International Justice at the City Bar has led an increasing global awareness of the fundamental right to counsel and the moral obligation of lawyers, as custodians of the legal system, to provide pro bono legal services. In 2008, the Vance Center launched the Pro Bono Declaration for the Americas, the first Americas-wide statement of a lawyer's responsibility to provide pro bono legal assistance, and so far over 400 lawyers, legal institutions, and non-governmental organizations have signed the Declaration, pledging to perform pro bono work.

Legal Services are no less than the very means by which the rule of law is implemented, and an individual's access to legal services is a test of whether a society lives by the rule of law.


Patricia M. Hynes