The Sixth Amendment guarantees the right “to have the Assistance of Counsel for his defense,” but only in criminal prosecutions. On Tuesday, the Wisconsin Supreme Court heard public testimony on a recent petition that would establish the same right to counsel in some civil cases as well.

This new right to counsel would only apply to high-risk civil cases such as custody cases. It would not mandate that a lawyer be given to those bringing injury, free speech or other kinds of more optional civil cases.

The United States Supreme Court has already held that there is a right to counsel in civil cases when the litigant may be incarcerated if he loses the lawsuit. This is because it is the defendant’s interest in personal freedom, not just the Sixth Amendment, which triggers the right to counsel. Therefore, as the litigant’s interest in personal liberty diminishes, so does his or her right to counsel.

During Tuesday’s hearing, Chief Justice Shirley Abrahamson also brought up a judge’s inherent authority to appoint counsel when he or she feels it is necessary for the fairness and efficiency of the case. Although this happens only on rare occasions, it is still within the judge’s discretion to do so.

Advocates for the proposal argued the low-funded legal clinics for the financially unstable and self-help programs are not enough to help clients in those civil cases where basic human needs are at stake. Those against the proposal were afraid this would be another unfunded mandate during financially difficult times.

Establishing this civil right to counsel would cost the state approximately $50 million more a year. When added to the already large burden on the state and the judicial system, this cost is simply too high.

The state public defender’s office, which would inevitably end up with the burden of representing these indigent clients, is already overworked and stretched too thin. While most private lawyers only handle a few cases at a time, state public defenders have stacks of cases vying for their attention. They are underpaid, overworked and under-appreciated. Adding the additional burden of civil cases would make their jobs impossible.

While adding additional staff would help alleviate some of that burden, it is unclear how many lawyers it would take to cover all of the civil cases that would come flooding into the system. Therefore, the burden of representing these clients would inevitably fall on these already overworked lawyers who will most likely not see a dime of that $50 million to compensate them for their extra work.

Our court system, which already moves at a slow creep, would come to a virtual halt. Just like the state public defenders, the state court systems are overburdened with the amount of the cases on their docket every year. It can take years for a simple case to proceed from beginning to end because the judges and law clerks simply do not have enough time to go any quicker. Budgetary concerns also limit the amount of manpower a judge can rely on.

As the amount of civil cases grows, the larger a court’s docket will become and the longer a simple case will take. This will result in an increase in attorney’s fees and costs, thus costing the state even more to represent these clients.

Fifty million dollars is a pretty large number, but it is just an estimate. It really is unclear how large of a financial burden this would cause the state. What we do know is the cost will be huge, not just in terms of money, but also to the juridical system as a whole.

The opportunities for representation granted by the U.S. Supreme Court, judicial discretion and numerous law clinics already allow low-income clients to receive representation in dire situations. In such a dire economy, this is not the time for the court to be placing such a heavy burden on the state and its taxpayers.

Alex Brousseau ([email protected]) is a second year law student.